Reply Brief — Arthur Gregory Lange, Petitioner v. California

Supreme Court briefSep 23, 2020

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No. 20-18

IN THE

ARTHUR GREGORY LANGE,

Petitioner,

STATE OF CALIFORNIA,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Appeal of the State of California,

First Appellate Division

REPLY BRIEF FOR PETITIONER

Peter Goodman

LAW OFFICE OF

PETER GOODMAN

819 Eddy Street

San Francisco, CA 94102

Brian H. Fletcher

Counsel of Record

Jeffrey L. Fisher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-3345

bfletcher@law.stanford.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

REPLY BRIEF FOR PETITIONER ............................ 1

CONCLUSION............................................................. 7

TABLE OF AUTHORITIES

Page(s)

Cases

Ajoku v. United States,

572 U.S. 1056 (2014) ..............................................6

Beckles v. United States,

137 S. Ct. 886 (2017) ..............................................6

BNSF Ry. Co. v. Tyrell,

137 S. Ct. 1549 (2017) ............................................5

Brown v. Barr,

No. 19-5133 (Apr. 20, 2020) ...................................6

Carpenter v. United States,

138 S. Ct. 2206 (2018) ............................................3

Chicago v. Fulton,

No. 19-357 (cert. granted Dec. 18, 2019) ...............3

Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund,

137 S. Ct. 2325 (2017) ............................................2

Davis v. United States,

564 U.S. 229 (2011) ............................................4, 5

DIRECTV, Inc. v. Imburgia,

136 S. Ct. 463 (2015) ..............................................2

Fernandez v. California,

571 U.S. 292 (2014) ................................................2

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020) ............................................3

Herrera v. Wyoming,

139 S. Ct. 1686 (2019) ............................................2

Higgason v. Superior Ct.,

170 Cal. App. 3d 929 (1985) ...................................4

Holguin-Hernandez v. United States,

140 S. Ct. 762 (2020) ..........................................3, 6

iii

Huber v. N.J. Dep’t of Env’t Prot.,

562 U.S. 1302 (2011) ..............................................2

Kahler v. Kansas,

140 S. Ct. 1021 (2020) ............................................3

In re Lavoyne M.,

221 Cal. App. 3d 154 (1990) ...................................4

Lindsey v. Indiana,

137 S. Ct. 32 (2016) ................................................6

Lorenzana v. Superior Ct.,

511 P.2d 33 (Cal. 1973) ..........................................4

Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n,

138 S. Ct. 1719 (2018) ............................................2

Mata v. Lynch,

576 U.S. 143 (2015) ................................................6

McLane Co. v. EEOC,

137 S. Ct. 1159 (2017) ............................................5

Murr v. Wisconsin,

137 S. Ct. 1933 (2017) ............................................2

Nasrallah v. Barr,

140 S. Ct. 1683 (2020) ............................................3

Navarette v. California,

572 U.S. 393 (2014) ................................................2

Niz-Chavez v. Barr,

No. 19-863 (cert. granted June 8, 2020) ................3

People v. Lloyd,

216 Cal. App. 3d 1425 (1989) .................................4

People v. Verdugo,

44 Cal. App. 5th 320, 333 .......................................4

Riley v. California,

573 U.S. 373 (2014) ................................................2

Romag Fasteners, Inc. v. Fossil, Inc.,

140 S. Ct. 1492 (2020) ............................................3

Smith v. Berryhill,

139 S. Ct. 1765 (2019) ............................................6

Stanton v. Sims,

571 U.S. 3 (2013) (per curiam) ...............................2

United States v. Lara,

815 F.3d 605 (9th Cir. 2016) ..................................4

United States v. Stitt,

139 S. Ct. 399 (2018) ..............................................5

Water Splash, Inc. v. Menon,

137 S. Ct. 1504 (2017) ............................................2

White v. United States,

138 S. Ct. 641 (2018) ..............................................6

Constitutional Provision

U.S. Const., amend. IV .............................................1, 3

Statute

42 U.S.C. § 1983 ............................................................5

Rule

Sup. Ct. R. 10 ................................................................2

REPLY BRIEF FOR PETITIONER

The State’s brief cements the need for this

Court’s review. The State recognizes that lower

courts are hopelessly split on the question whether

pursuit of a suspected misdemeanant gives police

carte blanche to enter a home without a warrant.

BIO 6-7. The State “agrees” that this Court should

“resolve that division of authority.” BIO 8. The State

does not deny that this case squarely presents the

question that has divided the lower courts. And the

State also “agree[s] with Lange” on the merits,

arguing that “the Court should reject [the] categorical

rule” applied below and instead adopt “a case-specific

exigency analysis.” BIO 4-5.

Why, then, does the State urge this Court to

deny the petition and leave the split to fester? It

musters just two reasons: This case comes from an

intermediate state court, and the State believes it

might ultimately prevail on a different ground if the

Court granted certiorari and reversed. BIO 8-9. But

those quibbles are no reason to deny review. The

Court routinely hears cases from intermediate courts.

And it even more routinely grants certiorari despite a

respondent’s assertion that it could win on another

ground on remand—especially when that alternative

ground is forfeited, dubious, or (as here) both.

The Court should seize this chance to resolve an

entrenched split on an important Fourth Amendment

issue that has long bedeviled the lower courts—

especially because it could be years before the Court

sees another suitable vehicle for resolving this

recurring question.

1. The fact that the petition seeks review of a

decision of “a state intermediate appellate court,”

BIO 8, is of no moment. That posture can be a reason

to deny certiorari if it means that a petition does not

present a question that has divided the federal courts

of appeals and state courts of last resort. Cf. Sup. Ct.

R. 10. That was the situation in the case on which the

State relies. BIO 8; see Pet. at 11-12, Huber v. N.J.

Dep’t of Env’t Prot., 562 U.S. 1302 (2011) (No. 10-388).

But it is assuredly not the situation here: Everyone

agrees that “federal and state courts of last resort”

are “sharply divided” on the question presented.

Stanton v. Sims, 571 U.S. 3, 10 (2013) (per curiam);

see Pet. 8-14; BIO 6-7.

In such circumstances, this Court often selects a

case from an intermediate state court as the vehicle

for resolving the split. In recent years, for example,

the Court has reviewed no fewer than five other cases

from the California Courts of Appeal alone. See Cyan,

Inc. v. Beaver Cnty. Emps. Ret. Fund, 137 S. Ct. 2325

(2017); DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463,

467-68 (2015); Riley v. California, 573 U.S. 373, 380

(2014); Navarette v. California, 572 U.S. 393, 396

(2014); Fernandez v. California, 571 U.S. 292, 298

(2014).1

2. The State’s remaining objection is equally

insubstantial. The State does not deny that Mr.

Lange raised his Fourth Amendment objection at

Other examples abound. See, e.g., Herrera v. Wyoming,

139 S. Ct. 1686, 1694 (2019); Masterpiece Cakeshop, Ltd. v.

Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018); Murr v.

Wisconsin, 137 S. Ct. 1933, 1942 (2017);Water Splash, Inc. v.

Menon, 137 S. Ct. 1504, 1508 (2017).

every stage of the proceedings; that this case involves

a clean record and a simple, recurring set of facts; or

that the warrantless entry into Mr. Lange’s home

violated the Fourth Amendment under the casespecific approach the State now concedes is correct.

Pet. 16-17. Nor does the State identify any other

feature of the case that would prevent the Court from

reaching and resolving the question presented.

Instead, the State says only that if the Court

granted certiorari and reversed, the State would

“argue on remand” that the fruits of the unlawful

entry into Mr. Lange’s home are admissible under

“the good-faith exception to the exclusionary rule.”

BIO 9. But the Court often grants review to resolve a

question that actually controlled the decision below

even when a respondent maintains that it could

ultimately prevail on some other ground—including

the “good-faith exception.” BIO at 30, Carpenter v.

United States, 138 S. Ct. 2206 (2018) (No. 16-402).2

Here, the State’s good-faith argument would be a

particularly tenuous basis for denying review because

it has been forfeited many times over. The State did

not argue good faith at the suppression hearing and

thus could not have done so “for the first time on

See, e.g., BIO at 17-19, Niz-Chavez v. Barr, No. 19-863

(cert. granted June 8, 2020); BIO at 7-12, Chicago v. Fulton, No.

19-357 (cert. granted Dec. 18, 2019); BIO at 20-22, Nasrallah v.

Barr, 140 S. Ct. 1683 (2020) (No. 18-1432); BIO at 27-31, Romag

Fasteners, Inc. v. Fossil, Inc., 140 S. Ct. 1492 (2020) (No. 181233); BIO at 11-12, Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062

(2020) (No. 18-776); BIO at 22-23, Kahler v. Kansas, 140 S. Ct.

1021 (2020) (No. 18-6135); BIO at 8-11, Holguin-Hernandez v.

United States, 140 S. Ct. 762 (2020) (No. 18-7739).

appeal.” Lorenzana v. Superior Ct., 511 P.2d 33, 43

(Cal. 1973); see, e.g., Higgason v. Superior Ct., 170

Cal. App. 3d 929, 941-42 (1985) (declining to consider

good-faith argument not raised below). And the State

then forfeited the issue again (and again) by failing to

raise it in the appellate division or the Court of

Appeal. See People v. Verdugo, 44 Cal. App. 5th 320,

333 n.11 (2020) (“Issues not adequately developed in

an appellate brief are generally deemed forfeited.”).

The State does not acknowledge those forfeitures,

much less provide any reason to think the lower

courts would excuse them.3

Even if the State could overcome that obstacle,

its new argument would have a steep hill to climb.

The good-faith exception applies only when police

acted “in objectively reasonable reliance on binding

appellate precedent.” Davis v. United States, 564

U.S. 229, 249-50 (2011). Here, the State has not

shown that any such precedent exists. It cites two

decisions from California’s intermediate appellate

courts: In re Lavoyne M., 221 Cal. App. 3d 154 (1990),

and People v. Lloyd, 216 Cal. App. 3d 1425 (1989).

BIO 9. But even if those decisions could be read as

broadly as the State suggests, it is not clear that

“state intermediate court of appeals decisions” can be

“ ‘binding appellate precedent’ within the meaning of

Davis.” United States v. Lara, 815 F.3d 605, 614 (9th

Cir. 2016) (reserving the issue). And even if they

could, Lavoyne M. and Lloyd were issued by the

Second and Fourth District Courts of Appeal. This

For the State’s arguments omitting any mention of the

good-faith issue, see Opp. to Mot. to Suppress 6-7; Suppression

Hr’g Tr. 55-57; App. Div. Br. 11-24; C.A. Br. 37-45.

case arose in the First District, and the State cites no

authority establishing that the First District would

treat decisions from other districts as “binding

appellate precedent” under Davis.

The State’s belated invocation of the good-faith

exception thus provides no reason to deny review.

Instead, the Court should follow its usual practice by

granting certiorari, resolving the question presented,

and leaving it to the lower courts to decide whether

and how to address the State’s alternative argument

on remand. See, e.g., United States v. Stitt, 139 S. Ct.

399, 407-08 (2018); BNSF Ry. Co. v. Tyrell, 137 S. Ct.

1549, 1559 (2017); McLane Co. v. EEOC, 137 S. Ct.

1159, 1170 (2017).

3. The Court should be especially hesitant to

deny certiorari based on the State’s quibbles about

this case because the Court will seldom see such a

clean vehicle for resolving the question presented.

Misdemeanor pursuits ending in warrantless home

entries are surprisingly common. Pet. 14-15 & n.6;

see NACDL & CACJ Br. 7-15 & nn.3-5. But as the

petition explained, misdemeanor prosecutions rarely

include full litigation of Fourth Amendment issues.

Pet. 15. And because the law is uncertain, courts

usually resolve Section 1983 suits involving misdemeanor pursuit based on qualified immunity, without

reaching the question presented. Pet. 18.

The State disputes none of this. And it offers no

good reason to allow the split to persist during what

could be a years-long wait for a case that not only

squarely presents the question that has divided the

lower courts, but also comes from a state supreme

court and involves the rare respondent lacking any

alternative arguments that could be raised on remand.

4. Even if the Court does not grant plenary

review, it should at minimum grant the petition,

vacate the decision below, and remand for further

consideration in light of the State’s change in

position. The Court often follows that course when

the United States or a state confesses error in a case

presenting a question that does not warrant review.

See, e.g., Brown v. Barr, No. 19-5133 (Apr. 20, 2020);

White v. United States, 138 S. Ct. 641 (2018) (No. 17270); Lindsey v. Indiana, 137 S. Ct. 32 (2016) (No. 157813); Ajoku v. United States, 572 U.S. 1056 (2014)

(No. 13-7264). It should do the same here: Mr. Lange’s

conviction now rests on a holding that even the State

concedes is wrong.

The far better course, however, would be to grant

the petition and set the case for argument. All agree

that the question presented warrants review. Neither

the State’s change in position nor anything the

California courts might do on remand could eliminate

the nationwide split or otherwise diminish the need

for this Court to resolve the issue. And the State’s

agreement with Mr. Lange on the merits is likewise

no reason to withhold plenary review. Instead, the

Court should appoint an amicus curiae to defend the

judgment below, just as it has in many similar cases

in the past. See, e.g., Holguin-Hernandez v. United

States, 140 S. Ct. 762, 765 (2020); Smith v. Berryhill,

139 S. Ct. 1765, 1773 (2019); Beckles v. United

States, 137 S. Ct. 886, 892 (2017); Mata v. Lynch, 576

U.S. 143, 147 (2015).

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,