Amicus Curiae Brief — Arthur Gregory Lange, Petitioner v. California

NO. 20-18

IN THE

Supreme Court of the United States

ARTHUR GREGORY LANGE,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA,

FIRST APPELLATE DIVISION

Brief of National Association of Criminal

Defense Lawyers and California Attorneys for

Criminal Justice as Amici Curiae in Support

of Petitioner

JEFFREY T. GREEN

CO-CHAIR, NACDL

AMICUS COMMITTEE

1501 K. Street, NW

Washington, D.C. 20005

(202) 736-8000

STEPHEN DUNKLE

JOHN T. PHILIPSBORN

CHAIR & VICE CHAIR, CACJ

AMICUS COMMITTEE

1500 RIVER PARK DRIVE

SUITE 109

SACRAMENTO, CA 95815

(916) 643-1800

ELAINE GOLDENBERG

Counsel of Record

JONATHAN KRAVIS

CRAIG JENNINGS LAVOIE

BRANDON E. MARTINEZ

MUNGER, T OLLES & OLSON LLP

1155 F Street, NW, 7th Floor

Washington, D.C. 20004

elaine.goldenberg@mto.com

(202) 220-1100

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION ........................................................ 2

ARGUMENT ................................................................ 4

I.

This Court’s Review Is Warranted

Because the Categorical Rule Adopted

by the Court Below Gives Rise to

Serious Harms................................................... 4

II.

A Per Se Exception to the Warrant

Requirement for Misdemeanant Pursuit

Is Overbroad and Conflicts with This

Court’s Mandate to Evaluate Exigency

on a Case-By-Case Basis ................................ 15

CONCLUSION .......................................................... 19

ii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alto v. City of Chi.,

863 F. Supp. 658 (N.D. Ill. Aug. 25, 1994)........... 14

Bash v. Patrick,

608 F. Supp. 2d 1285 (M.D. Ala. 2009) .... 10, 11, 18

Birchfield v. North Dakota,

136 S. Ct. 2160 (2016) ................................ 3, 16, 19

Brigham City v. Stuart,

547 U.S. 398 (2006) .............................................. 16

Brown v. Peterson,

2009 WL 10671542 (D. Alaska Jan. 30, 2009) .... 14

Brown v. Thompson,

241 F. Supp. 3d 1330 (N.D. Ga. 2017) ................. 13

Carroll v. Ellington,

800 F.3d 154 (5th Cir. 2015) ................................ 14

Cupp v. Murphy,

412 U.S. 291 (1973) .............................................. 16

Disney v. City of Frederick,

2015 WL 737579 (D. Md. Feb. 19, 2015) ............. 13

Garcia v. City of St. Paul,

2010 WL 1904917 (D. Minn. May 10, 2010) ........ 14

iii

TABLE OF AUTHORITIES

(Continued)

Page

Huber v. Coulter,

2015 WL 13173223 (C.D. Cal. Feb. 10, 2015)...... 13

Hudson v. Michigan,

547 U.S. 586 (2006) ............................................ 2, 6

Illinois v. McArthur,

531 U.S. 326 (2001) .............................................. 16

Kolesnikov v. Sacramento Cty.,

2008 WL 1806193 (E.D. Cal. Apr. 22, 2008) ....... 13

Lockett v. City of Akron,

714 F. Supp. 2d 823 (N.D. Ohio 2010) ................. 14

Marchand v. Simonson,

16 F. Supp. 3d 97 (D. Conn. 2014) ....................... 14

Mascorro v. Billings,

656 F.3d 1198 (10th Cir. 2011) .................. 9, 10, 18

McDonald v. United States,

335 U.S. 451 (1948) ............................................ 5, 6

Miller v. United States,

357 U.S. 301 (1958) ................................................ 6

Minnesota v. Olson,

495 U.S. 91 (1990) .................................... 16, 17, 19

Missouri v. McNeely,

569 U.S. 141 (2013) ........................................ 16, 17

iv

TABLE OF AUTHORITIES

(Continued)

Page

Ohio v. Robinette,

519 U.S. 33 (1996) ................................................ 15

Potis v. Pierce County,

2016 WL 1615428 (W.D. Wash. Apr. 22,

2016).......................................................... 11, 12, 18

Richards v. Wisconsin,

520 U.S. 385 (1997) .................................. 17, 18, 19

Riley v. California,

573 U.S. 373 (2014) .............................................. 16

Sabbath v. United States,

391 U.S. 585 (1968) ................................................ 6

Estate of Sauceda v. City of N. Las Vegas,

380 F. Supp. 3d 1068 (D. Nev. 2019) ................... 14

Scott v. Harris,

550 U.S. 372 (2007) .............................................. 15

Sero v. City of Waterloo,

2009 WL 2475066 (N.D. Iowa Aug. 11,

2009).......................................................... 12, 13, 18

Sims v. Stanton,

706 F.3d 954 (9th Cir. 2013) .................................. 7

Smith-Grimes v. City of W. Palm Beach,

2013 WL 12094855 (S.D. Fla. Feb. 13, 2013) ...... 14

v

TABLE OF AUTHORITIES

(Continued)

Page

Stanton v. Sims,

571 U.S. 3 (2013) .......................................... 2, 7, 18

Thompson v. City of Florence,

2019 WL 3220051 (N.D. Ala. July 17,

2019)........................................................ 8, 9, 18, 19

Warden v. Hayden,

387 U.S. 294 (1967) .............................................. 16

STATE CASES

Altshuler v. City of Seattle,

819 P.2d 393 (Wash. Ct. App. 1991) .................... 13

Brooks v. City of Fresno,

2008 WL 4670996 (Cal. Ct. App. Oct. 23, 2008).. 13

City of Middletown v. Flinchum,

765 N.E.2d 330 (Ohio 2002) ................................. 13

Goines v. James,

433 S.E.2d 572 (W. Va. 1993)............................... 14

State v. Adams,

794 S.E.2d 357 (N.C. Ct. App. 2016).................... 13

State v. Anderson,

2009 WL 2192334 (N.J. Super. Ct. App. Div.

July 24, 2009) ....................................................... 14

vi

TABLE OF AUTHORITIES

(Continued)

Page

State v. Bahneman,

2008 WL 1972704 (Minn. Ct. App. May 6,

2008)...................................................................... 13

State v. Ferraro,

923 N.W.2d 179 (Wis. Ct. App. 2018) .................. 14

State v. Foreman,

2019 WL 4125596 (Del. Super. Ct. Aug. 29,

2019)...................................................................... 13

State v. Koziol,

338 N.W.2d 47 (Minn. 1983) ................................ 13

State v. Lam,

989 N.E.2d 100 (Ohio Ct. App. 2013) .................. 13

State v. Rouse,

557 N.E.2d 1227 (Ohio Ct. App. 1988) ................ 14

OTHER CASES

Case of Richard Curtis,

Fost. 135, 168 Eng. Rep. 67 (Crown 1757) ............ 4

Launock v. Brown,

2 B. & Ald. 592, 106 Eng. Rep. 482 (K.B.

1819)........................................................................ 5

vii

TABLE OF AUTHORITIES

(Continued)

Page

STATUTES

Ala. Code § 13A-5-7(a)(1) ........................................... 10

Ala. Code § 13A-5-7(a)(3) ............................................. 8

Ala. Code § 13A-10-52 ............................................... 10

Ala. Code § 13A-12-130(a) ........................................... 8

Iowa Code § 719.1(1)(a)-(b) ........................................ 12

Iowa Code § 903.1(1)(a) ............................................. 12

Okla. Stat. tit. 21, § 540A ............................................ 9

Wash. Rev. Code § 9.92.030....................................... 11

Wash. Rev. Code § 46.61.021..................................... 11

1

INTEREST OF AMICI CURIAE 1

The National Association of Criminal Defense Lawyers (NACDL) is the preeminent national organization in the United States representing attorneys

practicing in the field of criminal defense—including

private criminal defense lawyers, public defenders,

military defense counsel, law professors, and judges

committed to ensuring fairness within America’s

criminal justice system. California Attorneys for

Criminal Justice (CACJ), a NACDL affiliate and the

largest statewide organization of California criminaldefense lawyers and allied professionals, defends the

rights of persons accused of crimes and the interests

of wrongfully convicted persons. Both NACDL and

CACJ are nonprofit, voluntary professional bar associations that frequently appear as amici curiae before

this Court in cases raising issues of importance to

criminal defendants and the defense bar.

NACDL, CACJ, and their many thousands of combined members have an important interest in ensuring that the “exigent circumstances” exception to the

Fourth Amendment’s warrant requirement is applied

in a manner that is consistent with this Court’s precedents and that minimizes the risk of dangerous inhome confrontations between police and suspected

offenders.

Pursuant to Supreme Court Rule 37.2(a), counsel of record for

both parties received notice of amici curiae’s intention to file this

brief at least 10 days prior to the due date. Petitioner and

respondent have consented to the filing of this brief. No party

authored this brief in whole or in part, and no person or entity,

other than amici curiae, their members, or their counsel, has

made a monetary contribution to the preparation or submission

of this brief.

1

2

INTRODUCTION

In Stanton v. Sims, 571 U.S. 3 (2013) (per curiam),

this Court observed that “federal and state courts nationwide are sharply divided on the question whether

an officer with probable cause to arrest a suspect for

a misdemeanor may enter a home without a warrant

while in hot pursuit of that suspect.” Id. at 6. The

California Court of Appeal deepened that split in this

case, holding that pursuit of a misdemeanor suspect

categorically qualifies as an exigent circumstance justifying warrantless home entry.

A grant of certiorari is warranted here to resolve

that intractable and long-standing division of authority and bring clarity to a critical aspect of Fourth

Amendment law. First, a categorical rule authorizing

warrantless entry for pursuit of a misdemeanant unduly generates substantial social costs. This Court

has acknowledged that restricting unannounced entry serves a strong societal interest in protecting

“human life and limb, because an unannounced entry

may provoke violence in supposed self-defense by the

surprised resident.” Hudson v. Michigan, 547 U.S.

586, 594 (2006). The Court also has acknowledged

that such a restriction protects property, as forced entry by police often involves breaking doors and other

items, and safeguards the “privacy and dignity that

can be destroyed by a sudden entrance,” such as

when someone is deprived the opportunity “to pull on

clothes or get out of bed.” Id. (citation omitted).

Those interests are severely threatened when police

barge into a residence in pursuit of a misdemeanant.

Amici have conducted an exhaustive review of decisions by state and federal courts involving scenarios

in which police pursued a suspected misdemeanant

3

into a residence without a warrant, and those rulings

reveal that such pursuits often spiral unpredictably.

Once inside a home, adrenaline-filled officers must

make split-second decisions regarding the use of

force, and injuries to police, suspects, and innocent

third parties are common, as is damage to property.

Of course, risking those kinds of consequences may be

justified in a particular case if a particular misdemeanant poses a serious threat—but a categorical

rule dangerously encourages police to barge into

homes in every case, regardless of the circumstances.

Second, a blanket rule defining pursuit of a misdemeanant as an exigent circumstance—even in instances in which there is no risk of evidence destruction and the misdemeanant poses no threat to police

or the public—cannot be reconciled with this Court’s

Fourth Amendment precedents. This Court has consistently rejected per se rules with respect to the

Fourth Amendment generally and exigent circumstances in particular, instead instructing that “the

exigent-circumstances exception must be applied on a

case-by-case basis.” Birchfield v. North Dakota, 136

S. Ct. 2160, 2174 (2016). Courts adopting a categorical rule of exigency with respect to a fleeing misdemeanant have ignored that instruction and, in doing

so, have authorized police to invade private residences even where no true emergency exists. 2

Like the petition, this brief employs the traditional definition

of “misdemeanor”:

a non-felony offense punishable by

incarceration.

2

4

ARGUMENT

I.

This Court’s Review Is Warranted

Because the Categorical Rule Adopted by

the Court Below Gives Rise to Serious

Harms

In a variety of Fourth Amendment cases, this Court

has identified serious harms related to home entries

by police that are either unannounced or without a

warrant. A warrantless entry into a home in pursuit

of a misdemeanant is generally unannounced as well

(particularly from the perspective of occupants other

than the pursued)—and such an entry is therefore

quite likely to give rise to those very harms. That is

not a matter of mere speculation; it is a matter of

empirical proof. A robust body of decisions in civil

rights litigation and criminal cases demonstrates that

warrantless pursuit of a misdemeanant into a home

often snowballs out of control, resulting in personal

injury and property damage, as police face quick decisions in an unfamiliar setting with limited information. Given the dangerous consequences that arise

from the blanket rule permitting such entry adopted

by the court below and by many other courts across

the country, this Court’s review is warranted.

1. Since the era of the Founding, courts have recognized that unannounced entries invite violence. In

1757, an English common-law court reviewed the

murder conviction of a man who reacted to a peace

officer’s entry into his friend’s workshop by striking

the officer dead with an ax. See Case of Richard Curtis, Fost. 135, 168 Eng. Rep. 67 (Crown 1757). In

evaluating whether the officer had adequately announced himself before entering, the court explained

that occupants must be told that an officer “cometh

5

not as a mere trespasser, but claiming to act under a

proper authority.” Fost. at 137; 168 Eng. Rep. at 68.

Chief Justice Abbott of the King’s Court echoed that

concern a few decades later: “[I]f no previous demand

is made, how is it possible for a party to know what

the object of the person breaking open the door may

be? He has a right to consider it as an aggression on

his private property, which he will be justified in resisting to the utmost.” Launock v. Brown, 2 B. & Ald.

592, 593, 106 Eng. Rep. 482, 483 (K.B. 1819).

This Court has voiced the same concern.

In

McDonald v. United States, 335 U.S. 451 (1948), officers investigating an illegal lottery operation heard

sounds of an adding machine coming from a rooming

house. Proceeding without a warrant, one of the officers “opened a window leading into the landlady’s

room and climbed through,” introducing himself to

the woman once inside. Id. at 453. The officer then

admitted his colleagues to the house, where they arrested petitioners and seized evidence of their lottery

venture. Id. This Court ruled that the warrantless

entry violated the Fourth Amendment because no exigency justified departure from the warrant requirement. Id. at 454-456. Officers waiting outside could

have “apprehend[ed] petitioners in case they tried to

leave,” the Court stated, and no evidence was being

destroyed. Id. at 455. Writing in concurrence, Justice Jackson observed that the method of search was

“certain to involve the police in grave troubles if continued.” Id. at 460 (Jackson, J., concurring). He explained: “Many home-owners in this crime-beset city

doubtless are armed. When a woman sees a strange

man, in plain clothes, prying up her bedroom window

and climbing in, her natural impulse would be to

shoot [him]. * * * But an officer seeing a gun being

drawn on him might shoot first.” Id. at 460-461.

6

Citing Justice Jackson’s concurrence, this Court

has explained several times that surprise entry by

police threatens “life and limb” because it “may provoke violence in supposed self-defense by the surprised resident.” Hudson v. Michigan, 547 U.S. 586,

594 (2006) (citing McDonald, 335 U.S. at 460-461

(Jackson, J., concurring)). Hence, requiring officers

to pause and announce their presence is “a safeguard

for the police themselves,” who might otherwise be

“mistaken for prowlers” and “shot down by a fearful

householder.” Miller v. United States, 357 U.S. 301,

313 n.12 (1958) (citing McDonald, 335 U.S. at 460461 (Jackson, J., concurring)); see Sabbath v. United

States, 391 U.S. 585, 589 (1968) (“[A]nother facet of

the rule of announcement was, generally, to safeguard officers, who might be mistaken, upon an unannounced intrusion into a home, for someone with

no right to be there.”) (citing McDonald, 335 U.S. at

460-461 (Jackson, J., concurring)).

Of course, other interests are at stake as well. In

addition to putting residents and officers in physical

danger, unannounced entry may deprive homeowners

of “the opportunity * * * to avoid the destruction of

property occasioned by a forcible entry.” Hudson, 547

U.S. at 594 (citation omitted). Yet another interest is

the “privacy and dignity that can be destroyed by a

sudden [police] entrance.” Id. The period between

announcement and entry “may be the opportunity

that an individual has to pull on clothes or get out of

bed,” and “it assures the opportunity to collect oneself

before answering the door.” Id. (citation omitted).

2. The same dangers clearly arise from sudden,

warrantless entries in pursuit of misdemeanants.

Such entries are generally unannounced or made in

some other manner that may inspire a surprised and

7

defensive reaction by residents, and police frequently

decide to enter in the heat of the moment without the

opportunity for reflection and deliberation that comes

with a break in pursuit to seek a warrant.

Stanton v. Sims, 571 U.S. 3 (2013) (per curiam), in

which this Court recognized the split of authority on

the question presented, is itself a good example. In

that case, Officer Mike Stanton and his partner,

working in La Mesa, California, responded to a latenight call about a disturbance involving a person

with a baseball bat. Id. at 4. When they approached,

they saw three men walking in the street. Id. Two of

the men turned into a nearby apartment complex,

while the third, Nicholas Patrick, ran toward a residence. Id. Patrick was not holding a baseball bat,

but Stanton considered his behavior suspicious and

yelled for him to stop. Id. Patrick instead retreated

into a fenced yard where Stanton could not see him.

Id. At this point, Stanton believed Patrick had committed a jailable misdemeanor by disobeying his order to stop. Id. Rather than knock on the fence door

or return to his car to begin the process of applying

for a warrant, Stanton chased after Patrick and

kicked open the fence door. Id. at 5. Unfortunately,

the owner of the house, Drendolyn Sims, was standing right behind the door when Stanton kicked it

open. Id. The door blasted Sims in the face, splitting

open her forehead and sending her into the home’s

front steps. Id.; Sims v. Stanton, 706 F.3d 954, 958

(9th Cir. 2013). Sims was rendered incoherent as a

result of the blow, injured her shoulder, and required

treatment at a hospital. Stanton, 571 U.S. at 5; Sims,

706 F.3d at 958.

Sims’s story is not unusual. Amici have reviewed

approximately one hundred and fifty decisions in

8

§ 1983, Bivens, and criminal cases involving police

pursuit of a suspected misdemeanant into a home

without a warrant, and the situations the courts describe confirm the serious danger and other costs associated with such entries. Below are a few examples.

a. Thompson v. City of Florence, 2019 WL 3220051

(N.D. Ala. July 17, 2019). At 2 a.m. on a Sunday

morning in Florence, Alabama, twenty-year-old Mason Kamp urinated on the corner of his girlfriend’s

outdoor patio. Id. at *3. A plainclothes officer walking on an adjacent sidewalk spotted Kamp, displayed

his badge, and told Kamp that he was not allowed to

urinate in public. Id. Thinking that the plainclothes

patrolman might merely be posing as a police officer,

Kamp asked the officer for identification, words were

exchanged, and Kamp went back into his girlfriend’s

apartment. Id. Public urination generally constitutes public lewdness in Alabama, a jailable misdemeanor, and the officer decided to apprehend Kamp.

Id.; see Ala. Code §§ 13A-12-130(a) & 13A-5-7(a)(3).

The officer and his partner, who was also in plain

clothes, knocked on a door connecting the patio to the

apartment. 2019 WL 3220051, at *3. Kamp’s girlfriend answered, and the officers said they needed to

speak with the “gentlemen” who was recently outside

her apartment. Id. The officers then saw Kamp and

pushed past the girlfriend into the apartment, and a

“scrum” ensued among the plainclothes officers,

Kamp, and another occupant of the apartment. Id. at

*4. The girlfriend, not knowing that Kamp had urinated on her patio or that the intruders were genuine

police officers, retrieved a 9mm Ruger handgun from

her purse and dialed 911 with her free hand. Id. In

an audio recording of the 911 call, the girlfriend is

9

heard saying that two strangers “posing as police officers” were in her apartment; that two of the occupants were down on the floor and one was cuffed; and

that the strangers “ha[d] broken half” of the contents

of her apartment “for no reason.” Id.

A backup officer arrived and tackled the girlfriend

to the ground while she was still on the phone, causing the handgun to fly out of her hands. 2019 WL

3220051, at *4. The 911 audio terminates with the

sound of the girlfriend screaming. Id. When the dust

settled, Kamp, his girlfriend, and another occupant

ended up in jail, and one of the officers went to the

hospital for injuries suffered during the chaos. Id.

b. Mascorro v. Billings, 656 F.3d 1198 (10th Cir.

2011). Late one night in Sulphur, Oklahoma, a sheriff’s deputy noticed seventeen-year-old Joshua Burchett driving without taillights. Id. at 1202. The

deputy attempted a traffic stop, but Burchett instead

“drove two blocks to his [mother and stepfather’s]

house, ran inside, and hid in the bathroom.” Id. In

Oklahoma, eluding a peace officer is a jailable misdemeanor. Okla. Stat. tit. 21, § 540A.

Burchett’s mother and stepfather, Christina and

Jose Mascorro, woke to the sound of the deputy kicking their front door and shouting orders that someone

come outside. 656 F.3d at 1202. When Jose opened

the door, the deputy drew his gun and demanded to

see the person who had been driving the car. Id.

Christina asked the deputy which car he meant, then

noticed her son’s car in the driveway and said:

“That’s my son’s car. Oh, my gosh, what did he do?”

Id. Jose asked the deputy if he had a warrant, and

Christina started to turn away from the door. Id.

The deputy “sprayed [Christina] in the face with pepper spray, and then stepped into the house and

10

sprayed her again.” Id. Once inside, the deputy also

pepper-sprayed Jose and Christopher, Christina’s

fourteen-year-old child, square in the face. Id. Christina retreated into a bedroom to call 911. Id.

Burchett, who had been hiding in a bathroom, refused to come out, so a backup officer “drew his gun,

kicked down the bathroom door, and took him into

custody.” 656 F.3d at 1203. Christina and Jose were

handcuffed while riding with Christopher in an ambulance to the hospital, where all three received

treatment. Id. Christina and Jose were then taken

to jail, purportedly for obstructing a peace officer, but

a state court quashed their arrests because no exigent circumstances justified the deputy’s entry. Id.

When the Mascorros returned home, they found their

belongings strewn about, trash cans upturned, and a

hole in the wall. Id.

c. Bash v. Patrick, 608 F. Supp. 2d 1285 (M.D. Ala.

2009). One Sunday in 2007, Andrew Bash was driving home after doing some shopping in downtown

Mosses, Alabama. Id. at 1290. The town’s Chief of

Police, Michael Patrick, and another officer noticed

loud music coming from Bash’s car and activated

their lights and siren to pull him over for a violation

of the City’s noise ordinance. Id. Bash continued

driving approximately one mile to his house, though

“[h]e did not exceed the posted speed limit.” Id. In

Alabama, failure to stop a vehicle in response to an

officer’s signal is a jailable misdemeanor. Ala. Code

§§ 13A-10-52; 13A-5-7(a)(1).

Bash parked his car in his driveway and exited.

Patrick asked Bash to produce his driver’s license,

but Bash “replied that he was not going to give Officer Patrick a damn thing and dashed for the house.”

608 F. Supp. 2d at 1290-1291. Patrick and his part-

11

ner pursued Bash into the house, where Patrick “immediately pounced upon [Bash] and began beating

him with his fists and attempting to restrain him.”

Id. Patrick then drew his taser and tased Bash. Id.

Bash’s wife, who was in the home with four children, reacted by threatening Patrick with a raised

barstool and a kitchen knife. 608 F. Supp. 2d at

1290-1291. Patrick, in turn, put down his taser and

drew his service weapon. Id. Bash then bit Patrick

on the thumb, distracting him from his taser, which

Bash’s wife threw out the open door. Id. Patrick

went to fetch the taser, but Bash’s wife locked him

out. Id. Patrick broke through some glass in the

front door to regain entry, by which point Bash was

being handcuffed inside by the other officer. Id.

Charges were filed against Bash, but all were ultimately dismissed. Id. at 1291-1292.

d. Potis v. Pierce County, 2016 WL 1615428 (W.D.

Wash. Apr. 22, 2016). In the middle of the night in

Puyallup, Washington, a sheriff’s deputy noticed that

Jeffrey Smith and his girlfriend were driving with a

headlight that was out. Id. at *1. The deputy activated his siren and used his air horn to instruct

Smith to pull over, but Smith continued driving four

blocks to his home, then ran inside. Id. at *1-2. In

Washington, failure to obey an officer’s signal to stop

is a jailable misdemeanor. Id. at *3; see Wash. Rev.

Code §§ 46.61.021 & 9.92.030.

The deputy exited his car to pursue Smith,

“rammed down” the front door, and tackled him.

2016 WL 1615428, at *1. Smith’s girlfriend then entered the house and found Smith in a struggle with

the deputy. Id. at *2. The girlfriend yelled at the

deputy and allegedly tried to push him off Smith, but

the deputy pushed her away. Once Smith was cuffed,

12

the girlfriend “backed away nearer [to] the front door,

contemplating fleeing,” but the deputy used a

“straight arm bar take down” to force her to the

ground, then “placed his knee on her neck and throat

area.” Id. at *2, *4.

e. Sero v. City of Waterloo, 2009 WL 2475066 (N.D.

Iowa Aug. 11, 2009). Late one night in Waterloo, Iowa, two officers observed Carl Burchard walk out of a

liquor store, stare at the officers’ patrol car, and walk

toward an alley. Id. at *1. The officers drove after

him, at which point Burchard took off running and

appeared to try to hide something behind a garage.

Id. at *1-2. The officers exited their car and told Burchard to stop, but he ran to the back door of a house

and was admitted by one of its occupants. Id. At

that point, the officers had grounds to arrest Burchard for interference with official acts, a jailable

misdemeanor. Id. at *9; see Iowa Code §§ 719.1(1)(a)(b) & 903.1(1)(a).

According to the police report, one of the officers

approached the back door and turned the handle to

enter, but it was locked, so he began kicking the door

and ordering that it be opened. 2009 WL 2475066,

at *2. Charles Sero, who was sleeping on a couch in

the front room, was awakened by his daughter and

wife, who alerted him that someone was kicking on

their back door. Id. Sero went to the door and tried

to open it, but it was jammed. Id. As Sero continued

to struggle with the door, the officer “hit the door

with his shoulder and forced it open.” Id. The officer

found Burchard inside and threatened that he would

be “tasered” if he did not accompany the officer outside. Id.

While the officers spoke to Burchard outside, Sero’s

wife demanded to know why they had forced open her

13

door and who was going to pay for the repair. 2009

WL 2475066, at *2. Not receiving satisfactory answers, she called 911 and asked for a police supervisor. Id. As the conversation continued, Charles Sero

raised his arm in the direction of one of the officers

and asked whether they had a warrant, at which

point another officer seized him and placed his arms

behind his back, causing a shoulder injury that required surgery. Id. at *3. Sero was ultimately

charged with interference with official acts, but a

magistrate acquitted him in a bench trial. Id.

* * *

Those examples are not aberrations. Amici have

identified numerous misdemeanant-pursuit cases in

which the conduct that triggered the pursuit was

non-threatening, 3 property was damaged during the

warrantless entry, 4 and/or a police officer, the pursued, or a home occupant wound up injured or dead. 5

See, e.g., State v. Foreman, 2019 WL 4125596, at *1-2 (Del.

Super. Ct. Aug. 29, 2019) (unpublished order) (indecent

exposure); Kolesnikov v. Sacramento Cty., 2008 WL 1806193, at

*1-2 (E.D. Cal. Apr. 22, 2008) (riding off-road vehicle without a

helmet); Disney v. City of Frederick, 2015 WL 737579, at *1-2

(D. Md. Feb. 19, 2015) (simple trespass); Altshuler v. City of

Seattle, 819 P.2d 393, 394-395 (Wash. Ct. App. 1991) (running

red light); State v. Adams, 794 S.E.2d 357, 358-359 (N.C. Ct.

App. 2016) (driving with suspended license); State v. Lam, 989

N.E.2d 100, 101-102 (Ohio Ct. App. 2013) (failure to use turn

signal); State v. Bahneman, 2008 WL 1972704, at *1 (Minn. Ct.

App. May 6, 2008) (unpublished opinion) (speeding); City of

Middletown v. Flinchum, 765 N.E.2d 330, 331 (Ohio 2002) (tire

spinning and fishtailing); State v. Koziol, 338 N.W.2d 47 (Minn.

1983) (driving too fast in winter conditions).

3

See, e.g., Brown v. Thompson, 241 F. Supp. 3d 1330, 1334-1335

(N.D. Ga. 2017) (bullets fired through door and shotgun

discharged in house); Huber v. Coulter, 2015 WL 13173223, at

*4-6 (C.D. Cal. Feb. 10, 2015) (broken door); Brooks v. City of

4

14

Often, as in the cases above, it is easy to picture

how adhering to the warrant requirement would have

prevented chaos and injury. Home dwellers are less

confused and skeptical when officers knock, identify

themselves, and present a warrant, and a pause in

the action allows adrenaline to lower for both the

pursuer and the pursued. Requiring police to justify

a home entry to a neutral magistrate also provides

officers a chance to weigh the risks and advantages of

Fresno, 2008 WL 4670996, at *1-4 (Cal. Ct. App. Oct. 23, 2008)

(unpublished opinion) (door forced open with breaching tools);

State v. Rouse, 557 N.E.2d 1227, 1228 (Ohio Ct. App. 1988) (door

kicked down).

See, e.g., Estate of Sauceda v. City of N. Las Vegas, 380 F.

Supp. 3d 1068, 1073-1074 (D. Nev. 2019) (homeowner shot

dead); Carroll v. Ellington, 800 F.3d 154, 161-166 (5th Cir. 2015)

(suspect died after suffering numerous injuries, including

puncture wounds to neck, chest, and extremities from being

tased 35 times; officers injured and covered in suspect’s

feces); Marchand v. Simonson, 16 F. Supp. 3d 97, 103-105 (D.

Conn. 2014) (suspect tased while crossing threshold into home);

Smith-Grimes v. City of W. Palm Beach, 2013 WL 12094855, at

*1-3 (S.D. Fla. Feb. 13, 2013) (homeowner’s back injured and

finger broken during son’s struggle with officers); Lockett v. City

of Akron, 714 F. Supp. 2d 823, 826-828 (N.D. Ohio 2010) (sixtyfive-year-old homeowner knocked over by officer, injuring hip

and back); Garcia v. City of St. Paul, 2010 WL 1904917, at *1-2

(D. Minn. May 10, 2010) (suspect suffered two broken ribs,

temporary loss of vision in one eye, and bleeding from back of

the head); Brown v. Peterson, 2009 WL 10671542, at *1-2 (D.

Alaska Jan. 30, 2009) (suspect pepper-sprayed inside home);

Alto v. City of Chi., 863 F. Supp. 658, 659-660 (N.D. Ill. Aug. 25,

1994) (suspect shot during struggle inside home); State v.

Ferraro, 923 N.W.2d 179, 179-180 (Wis. Ct. App. 2018)

(unpublished table opinion) (suspect’s shoulder dislocated); State

v. Anderson, 2009 WL 2192334, at *1-2 (N.J. Super. Ct. App.

Div. July 24, 2009) (officer struck by surprised home occupants);

Goines v. James, 433 S.E.2d 572, 574-575 (W. Va. 1993)

(homeowners injured in brawl with officer).

5

15

continuing the pursuit, orient themselves to their

surroundings, and strategize about the safest way to

engage the suspect.

In contrast, categorically allowing warrantless entry for misdemeanant pursuit encourages police to

rush into unfamiliar homes, often late at night and

with no idea what they will encounter inside. Adrenaline-filled officers are then faced with difficult, splitsecond decisions about use of force with regard to anyone they find—which may include not only the suspect but also other occupants who are innocent of any

wrongdoing, surprised by the entry, and fearful that

they are under attack by invading criminals. As the

examples above demonstrate, those situations often

get out of hand. This Court’s review is warranted to

clarify that those dangers must be accounted for in

evaluating the reasonableness of a warrantless entry

in pursuit of a misdemeanant, rather than disregarded as part of a blanket rule authorizing such entries.

II.

A Per Se Exception to the Warrant

Requirement for Misdemeanant Pursuit

Is Overbroad and Conflicts with This

Court’s Mandate to Evaluate Exigency on

a Case-By-Case Basis

Reasonableness under the Fourth Amendment is

measured “by examining the totality of the circumstances,” and this Court has generally “eschewed

bright-line rules” in applying that test. Ohio v. Robinette, 519 U.S. 33, 39 (1996); see, e.g., Scott v. Harris,

550 U.S. 372, 383 (2007) (“Although respondent’s attempt to craft an easy-to-apply legal test in the

Fourth Amendment context is admirable, in the end

we must still slosh our way through the factbound

morass of ‘reasonableness.’”). Consistent with that

16

approach, the Court has invariably held that “the exigent-circumstances exception [to the warrant requirement] must be applied on a case-by-case basis.”

Birchfield v. North Dakota, 136 S. Ct. 2160, 2174

(2016); see Riley v. California, 573 U.S. 373, 402

(2014) (courts must “examine whether an emergency

justified a warrantless search in each particular

case”); Missouri v. McNeely, 569 U.S. 141, 150 (2013)

(“each case of alleged exigency” must be evaluated

“based on its own facts and circumstances” (citation

omitted)).

In numerous cases over many decades, the Court

has modeled how to conduct the required fact-specific

analysis of asserted exigencies. 6 One example is

Minnesota v. Olson, 495 U.S. 91 (1990), in which the

Court considered whether an exigency existed to justify a warrantless entry to arrest the getaway driver

in a deadly armed robbery. Acting on good information regarding the getaway driver’s whereabouts,

but without a warrant, police surrounded a duplex

and called one of its residents to say the suspect

should come out. Id. at 93-94. Upon hearing the

suspect speak to the resident in the background (“tell

them I left”), the officers stormed the house and arSee, e.g., Brigham City v. Stuart, 547 U.S. 398, 406 (2006)

(warrantless entry to provide emergency assistance was

“reasonable under the circumstances”); Illinois v. McArthur, 531

U.S. 326, 331 (2001) (warrantless seizure to prevent person’s

return to his trailer to destroy hidden contraband was

reasonable “[i]n the circumstances of the case before us”); Cupp

v. Murphy, 412 U.S. 291, 296 (1973) (warrantless search of

suspect’s fingernails to preserve evidence he was trying to rub

off was justified “[o]n the facts of this case”); Warden v. Hayden,

387 U.S. 294, 298-299 (1967) (warrantless entry in hot pursuit

of armed robber was reasonable “[u]nder the circumstances of

this case”).

6

17

rested him. Id. at 94. Shortly thereafter, the suspect

provided an inculpatory statement to police. Id.

The Court began its analysis by noting with approval the Minnesota Supreme Court’s “fact-specific

application” of the exigency standard, and then highlighted several facts that cut against an exigency

finding, including that the suspect was known to be

the getaway driver rather than the murderer and

that there was no sign of danger to occupants of the

duplex. 495 U.S. at 100-101. The Court also noted

that, in light of the police presence outside the house,

it was clear the suspect was “going nowhere” and

“would have been promptly apprehended” upon walking outside. Id. (citation omitted). Concluding that

the facts “d[id] not add up to exigent circumstances,”

the Court affirmed the Minnesota Supreme Court’s

decision to reverse the defendant’s conviction. Id. at

94-95, 100-101.

In the course of applying the case-by-case approach

exemplified by Olson, the Court has consistently declined invitations to establish per se exigencies. For

example, in McNeely, the Court declined to “depart

from careful case-by-case assessment” and rejected a

categorical rule that dissipation of alcohol in the

blood always constitutes an exigency justifying warrantless blood draws from suspected drunk drivers.

569 U.S. at 152.

Similarly, in Richards v. Wisconsin, 520 U.S. 385

(1997), the Court rejected a blanket exception to the

knock-and-announce requirement for searches in felony drug investigations. The Court acknowledged

that felony drug searches “may frequently involve”

special risks to officer safety and the preservation of

evidence, but explained that “not every drug investigation will pose these risks to a substantial degree.”

18

Id. at 391-393. For example, officers might conduct a

search when they know the only people present in the

residence have no involvement in the drug activity, or

officers may be aware that the drugs are being stored

in a way that makes them hard to destroy quickly.

Id. at 393. Hence, a categorical rule would have “impermissibly insulate[d] these cases from judicial review” and involved “considerable overgeneralization.”

Id. The Court instead reaffirmed a case-by-case approach, unanimously holding that, “in each case,”

courts must “determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Id.

at 394.

The decision below, which categorically permits

warrantless entries for misdemeanant pursuit on the

ground that such pursuit always involves exigent circumstances, cannot be reconciled with those decisions. Although some instances of misdemeanant

flight will support a reasonable conclusion that pausing to obtain a warrant would allow evidence destruction or create danger to police or others, not every

fleeing misdemeanant “will pose these risks to a substantial degree.” Richards, 520 U.S. at 393.

The examples of misdemeanant pursuit discussed

above in Part I(A) illustrate the point. The jailable

misdemeanors at issue in those cases—failure to obey

a police officer in Stanton, Mascorro, Bash, Sero, and

Potis, and public urination in Thompson—did not involve evidence that the retreating misdemeanant

could destroy. And none of the cases involved a risk

to officer or public safety. The seventeen-year-old

who drove without taillights in Mascorro threatened

no one when he cowered in his mother’s bathroom,

and no danger would have been created by a brief de-

19

lay in bringing the public urinator in Thompson to

justice.

The facts of petitioner’s case also demonstrate the

overbreadth of the categorical rule. Like the getaway

driver in Olson, petitioner was non-threatening and

posed no danger to anyone inside the residence.

When the officer entered his home without a warrant,

none of petitioner’s suspected offenses—honking his

horn without cause, playing his car stereo too loudly,

and disobeying a peace officer—involved evidence petitioner could destroy. And, as in Olson, if the pursuing officer had simply waited outside, he could have

thwarted any attempt by petitioner to leave the residence.

Indeed, neither the facts of petitioner’s case nor any

of the examples of pursuit of misdemeanants in Part

I(A) meet this Court’s basic definition of exigency:

“an emergency [that] leaves police insufficient time to

seek a warrant.” Birchfield, 136 S. Ct. at 2173. In

each situation, the officers had time to obtain a warrant rather than pursue a suspect into a home. A

blanket rule deeming such entries to be reasonable

under the Fourth Amendment, which has been

adopted in numerous jurisdictions and therefore currently governs tens of millions of Americans, is thus a

“considerable overgeneralization,” Richards, 520 U.S.

at 393, that conflicts with this Court’s longstanding

case-by-case approach to exigency.

CONCLUSION

The petition for a writ of certiorari should be granted.

20

Respectfully submitted,

JEFFREY T. GREEN

CO-CHAIR, NACDL

AMICUS COMMITTEE

1501 K. Street, NW

Washington, D.C. 20005

(202) 736-8000

STEPHEN DUNKLE

JOHN T. PHILIPSBORN

CHAIR & VICE CHAIR, CACJ

AMICUS COMMITTEE

1500 RIVER PARK DRIVE

SUITE 109

SACRAMENTO, CA 95815

(916) 643-1800

August 13, 2020

ELAINE GOLDENBERG

Counsel of Record

JONATHAN KRAVIS

CRAIG JENNINGS LAVOIE

BRANDON E. MARTINEZ

MUNGER, T OLLES & OLSON LLP

1155 F Street, NW, 7th Floor

Washington, D.C. 20004

elaine.goldenberg@mto.com

(202) 220-1100