Respondents Brief — Arthur Gregory Lange, Petitioner v. California

Supreme Court briefDec 4, 2020

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No. 20-18

In the Supreme Court of the United States

ARTHUR GREGORY LANGE,

Petitioner,

STATE OF CALIFORNIA,

Respondent.

ON WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL,

FIRST APPELLATE DISTRICT

BRIEF FOR RESPONDENT SUPPORTING VACATUR

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant

Attorney General

JEFFREY M. LAURENCE

Senior Assistant

Attorney General

December 4, 2020

SAMUEL T. HARBOURT*

HELEN H. HONG

Deputy Solicitors General

DONNA M. PROVENZANO

Supervising Deputy

Attorney General

KIMBERLY M. CASTLE

Associate Deputy

Solicitor General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

455 Golden Gate Avenue

Suite 11000

San Francisco, CA 94102-7004

(415) 510-3919

Samuel.Harbourt@doj.ca.gov

*Counsel of Record

QUESTION PRESENTED

Whether pursuit of a person who a police officer

has probable cause to believe has committed a

misdemeanor offense categorically qualifies as an

exigent circumstance sufficient to allow the officer to

enter a home without a warrant.

TABLE OF CONTENTS

Page

Introduction ................................................................. 1

Opinions below ............................................................ 2

Jurisdiction .................................................................. 2

Constitutional provision involved ............................... 2

Statement .................................................................... 2

A. Legal framework ............................................. 2

B. Factual background ........................................ 6

C. Proceedings below ........................................... 7

Summary of argument .............................................. 10

Argument ................................................................... 12

I. The categorical hot-pursuit exception

should not be extended to pursuits of suspected misdemeanants........................................ 12

A. The Court has only applied a categorical hot-pursuit exception in the felony

context ........................................................... 12

B. The Court should not extend the categorical hot-pursuit exception to the

misdemeanor context .................................... 15

C. Existing doctrine enables police to enter a home in pursuit of a misdemeanor suspect in appropriate cases ........... 30

D. The Court should remand for application of the good-faith exception .................... 34

Conclusion.................................................................. 36

iii

TABLE OF AUTHORITIES

Page

CASES

Atwater v. City of Lago Vista

532 U.S. 318 (2001) .................................... 3, 18, 29

Bodine v. Warwick

72 F.3d 393 (3d Cir. 1995).............................. 15, 24

Brigham City v. Stuart

547 U.S. 398 (2006) .............................. 4, 24, 30, 31

Butler v. State

309 Ark. 211 (1992) ........................................ 23, 29

California v. Acevedo

500 U.S. 565 (1991) .............................................. 17

California v. Carney

471 U.S. 386 (1985) ................................................ 3

City of Bismarck v. Brekhus

908 N.W.2d 715 (N.D. 2018) .......................... 28, 30

Collins v. Virginia

138 S. Ct. 1663 (2018) .......................................... 21

Commonwealth v. Jewett

471 Mass. 624 (2015)............................................ 29

Davis v. United States

564 U.S. 229 (2011) ........................................ 34, 35

TABLE OF AUTHORITIES

(continued)

Page

Fletcher v. Town of Clinton

196 F.3d 41 (1st Cir. 1999) .................................. 31

Florida v. Jardines

569 U.S. 1 (2013) .................................................. 21

Georgia v. Randolph

547 U.S. 103 (2006) ...................................... 3, 4, 16

Hudson v. Michigan

547 U.S. 586 (2006) .............................................. 22

Illinois v. McArthur

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

In re Lavoyne M.

221 Cal. App. 3d 154 (1990) ................................. 30

Johnson v. United States

333 U.S. 10 (1948) ............................................ 3, 13

Johnson v. United States

559 U.S. 133 (2010) .............................................. 25

Kentucky v. King

563 U.S. 452 (2011) ................................ 4, 5, 14, 24

Kyllo v. United States

533 U.S. 27 (2001) ................................................ 21

Manuel v. City of Joliet, Ill.

137 S. Ct. 911 (2017) ............................................ 35

TABLE OF AUTHORITIES

(continued)

Page

Maryland v. Buie

494 U.S. 325 (1990) ........................................ 21, 22

Mascorro v. Billings

656 F.3d 1198 (10th Cir. 2011) ................ 22, 25, 29

Michigan v. Tyler

436 U.S. 499 (1978) .......................................... 4, 22

Minnesota v. Olson

495 U.S. 91 (1990) ............................................ 5, 14

Missouri v. McNeely

569 U.S. 141 (2013) ...................................... passim

Mitchell v. Wisconsin

139 S. Ct. 2525 (2019) .......................................... 31

Nieves v. Bartlett

139 S. Ct. 1715 (2019) .......................................... 23

Payton v. New York

445 U.S. 573 (1980) ...................................... passim

People v. Hammerlund

504 Mich. 442 (2019) ............................................ 25

People v. Lloyd

216 Cal. App. 3d 1425 (1989) ................. 8, 9, 33, 35

People v. Robinson

47 Cal.4th 1104 (2010) ......................................... 33

TABLE OF AUTHORITIES

(continued)

Page

People v. Thompson

38 Cal. 4th 811 (2006) ...................................... 9, 32

Richards v. Wisconsin

520 U.S. 385 (1997) .............................................. 17

Riley v. California

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

Semayne’s Case

77 Eng. Rep. 194 (KB 1604) ................................. 18

Smith v. Stoneburner

716 F.3d 926 (6th Cir. 2013) ................................ 26

Stanton v. Sims

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

State v. Legg

633 N.W.2d 763 (Iowa 2001) .......................... 28, 32

State v. Markus

211 So. 3d 894 (Fla. 2017) .................. 22, 23, 28, 29

State v. Paul

548 N.W.2d 260 (Minn. 1996) .............................. 29

State v. Thomas

280 Kan. 526 (2005) ....................................... 14, 24

State v. Weber

372 Wis. 2d 202 (2016) ......................................... 15

vii

TABLE OF AUTHORITIES

(continued)

Page

Steagald v. United States

451 U.S. 204 (1981) ...................................... passim

Tennessee v. Garner

471 U.S. 1 (1985) ............................................ 24, 26

Thornton v. United States

541 U.S. 615 (2004) ........................................ 16, 17

United States v. Collins

650 F. App’x 398 (9th Cir. 2016) .......................... 31

United States v. Johnson

106 F. App’x 363 (6th Cir. 2004) .......................... 31

United States v. Lenoir

318 F.3d 725 (7th Cir. 2003) ................................ 31

United States v. Martinez

406 F.3d 1160 (9th Cir. 2005) .............................. 31

United States v. Robinson

414 U.S. 218 (1973) ................................ 3, 4, 16, 17

United States v. Santana

427 U.S. 38 (1976) ........................................ passim

United States v. Schmidt

403 F.3d 1009 (8th Cir. 2005) .............................. 14

United States v. Watson

423 U.S. 411 (1976) .......................................... 3, 17

viii

TABLE OF AUTHORITIES

(continued)

Page

Warden, Md. Penitentiary v. Hayden

387 U.S. 294 (1967) .................................. 12, 13, 24

Welsh v. Wisconsin

466 U.S. 740 (1984) ........................ 5, 25, 26, 27, 32

White v. Hefel

875 F.3d 350 (7th Cir. 2017) ................................ 31

STATUTES

28 U.S.C. § 1257(a) ...................................................... 2

Cal. Penal Code

§ 17 .......................................................................... 6

§ 19.2 ....................................................................... 6

§ 19.6 ....................................................................... 6

§ 148 ........................................................................ 7

§ 817 ...................................................................... 33

§ 836(a) ................................................................. 29

§ 840 ................................................................ 33, 34

§ 1526 .................................................................... 33

§ 1538.5(j) ............................................................... 8

Cal. Vehicle Code

§ 2800 ...................................................................... 7

§§ 2800.2-2800.3 ................................................... 28

§ 23152 .................................................................... 7

§ 27001 .................................................................... 6

§ 27007 ................................................................ 6, 7

Ala. Code § 13A-10-52 ............................................... 28

TABLE OF AUTHORITIES

(continued)

Page

Ky. Rev. Stat. Ann. § 520.090 ................................... 28

Mont. Code Ann. § 61-8-316 ...................................... 28

N.Y. Penal Law §§ 270.25-270.35 ............................. 28

Neb. Rev. Stat. § 28-904 ............................................ 28

Nev. Rev. Stat. § 171.136 .......................................... 34

Okla. Stat. tit. 22, § 189 ............................................ 34

COURT RULES

Cal. R. of Ct. 8.1002 ..................................................... 8

Minn. R. Crim. P. 3.03(3) .......................................... 34

OTHER AUTHORITIES

Baughman, Dividing Bail Reform, 105

Iowa L. Rev. 947 (2020)........................................ 25

4 William Blackstone, Commentaries on

the Laws of England (1769) ................................. 27

2 Richard Burn, The Justice of the Peace

and Parish Officer (20th ed. 1805) ...................... 21

1 Joseph Chitty, A Practical Treatise on

the Criminal Law (1819) ...................................... 20

3 Edward Coke, Institutes of the Laws of

England (6th ed. 1680) .................................. 20, 21

TABLE OF AUTHORITIES

(continued)

Page

Council of State Governments, The

Handbook on Interstate Crime

Control (1949 ed.) ................................................. 29

Cuddihy, The Fourth Amendment:

Origins and Original Meaning 6021791 (2009 ed.) ..................................................... 20

Davies, Recovering the Original Fourth

Amendment, 98 Mich. L. Rev. 547

(1999) .................................................................... 20

Donohue, The Original Fourth

Amendment, 83 U. Chi. L. Rev. 1181

(2016) .............................................................. 19, 20

2 Matthew Hale, The History of the

Pleas of the Crown (1st Am. ed. 1847) ........... 19, 21

LaFave, “Case-by-Case Adjudication”

Versus “Standardized Procedures,”

1974 Sup. Ct. Rev. 127 ......................................... 16

1 LaFave et al., Criminal Procedure (4th

ed. 2015) ................................................................. 6

3 LaFave, Search & Seizure: A Treatise

on the Fourth Amendment (6th ed.

2020) ......................................................... 15, 29, 33

Mayson & Stevenson, Misdemeanors by

the Numbers, 61 B.C. L. Rev. 971

(2020) .............................................................. 24, 25

TABLE OF AUTHORITIES

(continued)

Page

Natapoff, The High Stakes of Low-Level

Criminal Justice, 128 Yale L.J. 1648

(2019) .................................................................... 24

Schroeder, Warrantless Misdemeanor

Arrests and the Fourth Amendment,

58 Mo. L. Rev. 771 (1993) .................................... 20

INTRODUCTION

Under the Fourth Amendment, it is generally

unreasonable for the police to enter a home without a

warrant. This Court has adopted a limited exception

to the warrant requirement for cases in which officers

pursue a felony suspect who flees into a home. This

case raises the question whether that categorical “hotpursuit” exception should be extended to cases involving suspected misdemeanants. The Court has never

before applied a categorical hot-pursuit exception in

the misdemeanor context, and it should not do so now.

In deciding whether to extend a Fourth Amendment rule into a new or different context, the Court

typically considers relevant guidance from the founding era, as well as the law enforcement and privacy

interests at stake. Here, the historical evidence supports a felony hot-pursuit exception but provides no

basis for expanding that exception to all misdemeanor

pursuits. The law enforcement interests that would

be advanced by such an expansion are less weighty

than the comparable interests served by the existing

exception. And there are substantial and legitimate

privacy interests that would be jeopardized by a rule

authorizing a warrantless entry in every case in which

a suspected misdemeanant flees into a home. No

doubt, there are cases in which it is important—even

imperative—for police to pursue a fleeing misdemeanor suspect into a home. In most of those cases,

however, officers will be able to identify a case-specific

exigency justifying a warrantless entry. And if the circumstances do not present any such exigency, officers

may remain outside the home and enter as soon as

they obtain a valid warrant.

OPINIONS BELOW

The opinions below in this case are unreported.

The California Court of Appeal’s opinion appears at

pages 1a-22a of the petition appendix (and on Westlaw

at 2019 WL 5654385). The two opinions of the appellate division of the Sonoma County Superior Court

appear at pages 23a-25a and 26a-27a of the petition

appendix. The transcript of the trial court’s oral ruling denying Lange’s motion to suppress appears at

pages 278-279 of the clerk’s transcript below.

JURISDICTION

The California Supreme Court denied a timely

petition for review on February 11, 2020. Pet. App.

28a. A petition for a writ of certiorari was filed on July

10, 2020, and granted on October 19, 2020. This Court

has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States

Constitution provides: “The right of the people to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized.”

STATEMENT

A. Legal Framework

1. The “‘central requirement’” of the Fourth

Amendment “is one of reasonableness.” Illinois v.

McArthur, 531 U.S. 326, 330 (2001). When police

undertake a search or seizure to investigate criminal

wrongdoing, “reasonableness generally requires the

obtaining of a judicial warrant.” Riley v. California,

573 U.S. 373, 382 (2014). That requirement exists

because “inferences . . . from evidence” supporting a

search or seizure should, as a general matter, be

“drawn by a neutral and detached magistrate instead

of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v.

United States, 333 U.S. 10, 14 (1948); cf. Steagald v.

United States, 451 U.S. 204, 215 (1981) (warrant

requirement is “‘designed to prevent, not simply to

redress, unlawful police action’”).

The Court has “nonetheless . . . made it clear that

there are exceptions to the warrant requirement.”

McArthur, 531 U.S. at 330. “When faced with special

law enforcement needs, diminished expectations of

privacy, minimal intrusions, or the like, the Court has

found that certain general, or individual, circumstances may render a warrantless search or seizure

reasonable.” Id. Such exceptions include, for example,

searches of automobiles based on probable cause, California v. Carney, 471 U.S. 386, 394 (1985), arrests

made in public places based on probable cause, United

States v. Watson, 423 U.S. 411, 423 (1976) (felonies);

Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001)

(misdemeanors), and searches incident to lawful

arrests, United States v. Robinson, 414 U.S. 218, 235

(1973).

When it comes to the home, however, the Court has

emphasized that exceptions to the warrant requirement should be “‘jealously and carefully drawn.’”

Georgia v. Randolph, 547 U.S. 103, 109 (2006). “‘Freedom from intrusion into the home or dwelling is the

archetype of the privacy protection secured by the

Fourth Amendment.’” Payton v. New York, 445 U.S.

573, 587 (1980). For that reason, police must gener-

ally obtain a warrant before entering a home—including for the purpose of arresting someone. See id. at

603 (arrest warrant required for suspect in own home);

Steagald, 451 U.S. at 213-214 (search warrant

required for suspect in someone else’s home).

The few recognized exceptions to that general rule

reflect the Court’s careful approach to allowing warrantless entries of a home. For example, the “voluntary consent of an individual possessing authority,”

such as a “fellow occupant,” provides the police with

authority to enter a home without a warrant.

Randolph, 547 U.S. at 109. So does an exigent circumstance “so compelling that a warrantless search is

objectively reasonable.” Kentucky v. King, 563 U.S.

452, 460 (2011) (internal quotation marks and alteration omitted). Exigencies justifying a warrantless

search of a home include, for example, “assist[ing] persons who are seriously injured or threatened with such

injury,” Brigham City v. Stuart, 547 U.S. 398, 403

(2006), putting out a fire in a residence, Michigan v.

Tyler, 436 U.S. 499, 509 (1978), and preventing the

“‘imminent destruction of evidence,’” King, 563 U.S. at

460.

2. Certain exceptions to the warrant requirement

“apply categorically and thus do not require an assessment of whether the policy justifications underlying

the exception . . . are implicated in a particular case.”

Missouri v. McNeely, 569 U.S. 141, 150 n.3 (2013); see,

e.g., Riley, 573 U.S. at 382, 386 (search incident to

arrest). 1 Other exceptions “call[] for a case-specific

inquiry.” McNeely, 569 U.S. at 150 n.3.

1 See also Robinson, 414 U.S. at 235 (“[t]he authority to search

the person incident to a lawful custodial arrest, while based upon

the need to disarm and to discover evidence, does not depend on

The exigent circumstances exception ordinarily

falls within the latter category, requiring a court to

“evaluate each . . . alleged exigency based ‘on its own

facts and circumstances.’” McNeely, 569 U.S. at 150;

see also id. at 156 (“based on the totality of the circumstances”). But this Court has long recognized that a

categorical approach to the exigent circumstances

exception is appropriate in the particular context of

warrantless entries into a home while officers are in

“hot pursuit of a fleeing felon.” Welsh v. Wisconsin,

466 U.S. 740, 750 (1984) (citing United States v. Santana, 427 U.S. 38, 42-43 (1976)).

This hot-pursuit exception allows police to

complete a felony arrest “set in motion in a public

place,” where the suspect flees and “some sort of a

chase” ensues, leading the suspect to “retreat[] into [a]

house.” Santana, 427 U.S. at 42, 43. In those circumstances, the pursuing officers may enter the home

without a warrant for the limited purpose of completing the lawful arrest. See id.; Steagald, 451 U.S. at

221; Payton, 445 U.S. at 598. The Court has repeatedly listed “hot pursuit” of a felony suspect as its own

category of exigency, separate from case-specific exigencies such as a risk of evidence destruction or a danger of physical harm to persons. See, e.g., Stanton v.

Sims, 571 U.S. 3, 8 (2013) (per curiam); McNeely, 569

U.S. at 149; King, 563 U.S. at 460; Minnesota v. Olson,

495 U.S. 91, 100 (1990); Welsh, 466 U.S. at 750. The

Court has not, however, applied the hot-pursuit exception in the misdemeanor context. Cf. Stanton, 571

U.S. at 6 (recognizing that “federal and state courts

nationwide are sharply divided on the question”).

what a court may later decide was the probability in a particular

arrest situation that weapons or evidence would in fact be found”).

B. Factual Background

Petitioner Arthur Lange drove past a California

highway patrol officer in Sonoma late on the evening

of October 7, 2016. Pet. App. 2a. Lange was playing

music “very loudly” and unnecessarily honking his

car’s horn, leading the officer to “follow[] Lange

intending to conduct a traffic stop.” Id. Under California law, excessive sound amplification and honking

without justification are both infractions, punishable

with fines but not jail time. See Cal. Veh. Code

§§ 27001, 27007.2

After briefly following Lange, the officer flashed his

vehicle’s overhead emergency lights to signal that

Lange should pull over and stop. Pet. App. 3a. “It was

very dark outside” and the lights—which “consisted of

‘four red lights’” and an additional “‘bright light that

switche[d] between red and blue’”—provided “considerable illumination.” Id. at 16a. By that point, however, Lange had nearly arrived at the driveway to his

home. Id. at 3a, 17a. Rather than stopping as directed,

Lange turned into the driveway and continued into his

garage. Id. at 3a. As the garage door began to close,

the officer “exited his vehicle, approached the garage

door, stuck his foot ‘in front of the sensor and the garage door started to go back up.’” Id.3

2 Like many States, California uses the term “infraction” for nonjailable offenses, “misdemeanor” for offenses that authorize jail

time up to one year, and “felony” for offenses that authorize a

longer period of incarceration. See Cal. Penal Code §§ 17,

19.2, 19.6; see generally 1 LaFave et al., Criminal Procedure

§ 1.8(c) (4th ed. 2015).

3 A camera on the officer’s dashboard recorded a video of these

events. That video is in the record below. See Pet. App. 3a.

Upon entering the garage and questioning Lange,

the officer observed signs that Lange was intoxicated,

such as bloodshot eyes and slurred speech. C.T. 26,

136.4 A blood test later revealed that Lange’s bloodalcohol content was more than three times the legal

limit. Id. at 20, 207.

C. Proceedings Below

The Sonoma County District Attorney charged

Lange with the misdemeanor offense of driving under

the influence of alcohol, see Cal. Veh. Code § 23152,

and with an infraction for operating his car’s sound

system at an excessive level, see id. § 27007;

Pet. App. 2a.

Lange moved to suppress the evidence obtained

after the officer entered his garage, arguing that the

officer had no justification to enter without a warrant.

Pet. App. 2a-3a. The prosecutor responded that the

entry was lawful because the officer was in hot pursuit

of Lange based on probable cause to believe that

Lange had violated California Vehicle Code Section

2800, which makes it a misdemeanor to “willfully fail

or refuse to comply with a lawful order, signal, or

direction of a peace officer.” See C.T. 23-24, 562-564.

Because the officer lawfully sought to stop Lange in

order to investigate Vehicle Code infractions, Section

2800 required Lange to comply with the officer’s

instruction to pull over. Pet. App. 3a-4a, 6a, 17a.5 The

4 Citations to “C.T.” are to the clerk’s transcript from the court of

appeal.

5 For the same reason, the officer had probable cause to believe

that Lange had violated California Penal Code Section 148,

which makes it a misdemeanor to “willfully resist, delay or

superior court denied the motion to suppress on that

basis. Id. at 4a.

After the appellate division of the superior court

affirmed that ruling, Pet. App. 5a, Lange pleaded no

contest to one DUI count, id. at 6a. In light of his high

blood-alcohol content and a prior DUI conviction, the

superior court sentenced Lange to thirty days in jail

and three years’ probation. C.T. 208. Lange appealed

the conviction to the appellate division of the superior

court, which again affirmed the trial court’s denial of

the suppression motion. Pet. App. 6a; see also id. at

23a-24a (concluding that Lange could bring a “second

appeal” of the denial of his suppression motion following entry of his conviction).

The court of appeal then granted Lange’s petition

to review the case, Pet. App 1a, and affirmed Lange’s

conviction, id. at 14a-21a.6 The court explained that,

under existing California precedent, the “hot pursuit”

exception applies “‘[w]here the pursuit into the home

was based on an arrest set in motion in a public place.’”

Id. at 20a (quoting People v. Lloyd, 216 Cal. App. 3d

1425, 1430 (1989)); see also Stanton, 571 U.S. at 9 (noting that Lloyd “refused to limit the hot pursuit exception to felony suspects”).

In the court of appeal’s view, that exception applied

here. The court observed that probable cause of “nonjailable” offenses—such as the noise and honking

obstruct a peace officer in the discharge of his duties.” See Pet.

App. 17a.

6 In misdemeanor cases in California, a defendant may appeal

suppression issues as of right only to the superior court’s appellate division. See Cal. Penal Code § 1538.5(j). Additional appellate review may be had in the court of appeal only if it exercises

its discretion to order “transfer” of the case. Cal. R. of Ct. 8.1002.

infractions that initially prompted the officer to follow

Lange—might not have been sufficient to authorize

the warrantless entry. Pet. App. 21a (citing, e.g., People v. Thompson, 38 Cal. 4th 811, 821 (2006)). But

California precedent established that probable cause

of any “jailable” misdemeanor categorically allows an

officer to pursue a fleeing suspect into a home. Pet.

App. 20a-21a (citing, e.g., Lloyd, 216 Cal. App. 3d at

1430). Under the circumstances here, the court concluded that the officer’s warrantless entry was valid

because he had probable cause to arrest Lange for the

jailable offense of “failing to immediately pull over”

when the officer activated his lights. Pet. App. 17a;

see id. at 19a-21a.

Lange petitioned the California Supreme Court to

review the case. That Court denied review without requesting an answer. Pet. App. 28a.7 This Court then

granted Lange’s petition for a writ of certiorari.8

7 In a separate civil proceeding that preceded the appeals in his

criminal case, Lange challenged the decision of the Department

of Motor Vehicles to suspend his driver’s license for one year. Pet.

App. 4a-5a. In that case, the superior court agreed with Lange

that the warrantless entry into his garage violated the Fourth

Amendment, and overturned his license suspension on that basis. Id. That decision became final when the Department of Motor Vehicles did not appeal.

8 The State opposed Lange’s petition in light of the particular circumstances of the case, but noted that “[i]f the Court does grant

plenary review in this case . . . California would argue that the

Court should reject the categorical rule in the misdemeanor context.” Br. in Opp. 9.

SUMMARY OF ARGUMENT

The exigent circumstances exception to the warrant requirement ordinarily applies on a case-by-case

basis. But this Court has long recognized a categorical

hot-pursuit exception, which establishes a conclusive

presumption that exigent circumstances exist when

police pursue a fleeing felony suspect into a home. In

evaluating whether to extend that exception to pursuits of suspected misdemeanants, the Court should

consider the factors that it normally examines in

deciding whether to apply an existing Fourth Amendment exception in a new or distinct context: foundingera history, any intrusion on legitimate privacy interests that would result from extending the exception,

and the law enforcement interests that would be

advanced by that extension. Here, each of those factors counsels against applying the categorical hot-pursuit exception in the misdemeanor context.

The Founders prized the sanctity of the home, and

so did the common law authorities they consulted

when drafting the Fourth Amendment.

While

common law commentators recognized something

akin to today’s hot-pursuit exception in cases involving fleeing felony suspects, their writings do not support extending that exception to every case in which

an officer pursues a person who is suspected of committing a misdemeanor.

Privacy interests also weigh against such an extension. A sudden police entry into a home imposes an

obvious burden on the privacy and dignity interests of

those within the home—especially the interests of

those occupants who had nothing to do with the

offense giving rise to the entry. And given the greater

number and frequency of misdemeanor offenses and

arrests, such entries could become substantially more

common if this Court extended the hot-pursuit exception to all misdemeanor cases on a nationwide basis.

At the same time, the law enforcement interests

that are advanced by the felony hot-pursuit exception

are far less weighty in the misdemeanor context. Misdemeanor pursuits are less likely to involve risks of

violence, evidence destruction, or escape from the

home—the three exigencies that can be expected to

arise with sufficient frequency in the felony context to

justify departing from a case-by-case approach in

favor of a bright line categorical rule.

In light of these considerations, the categorical hotpursuit exception should be limited to cases in which

police have probable cause to believe that the fleeing

suspect committed a felony. To be sure, in certain

cases it will be important for the police to enter a

dwelling in pursuit of a misdemeanor suspect. In

those cases, officers may enter the home immediately

if the facts establish a case-specific exigency, or they

may wait outside and enter after obtaining a warrant.

Because the record here does not establish a case-specific exigency and the officer did not have a warrant to

enter Lange’s garage, the Court should hold that the

entry was inconsistent with the Fourth Amendment.

But in view of state appellate precedent that authorized the entry at the time it took place, the Court

should remand for the lower court to resolve whether

the good-faith exception to the exclusionary rule

applies.

ARGUMENT

I. THE CATEGORICAL HOT-PURSUIT EXCEPTION

SHOULD NOT BE EXTENDED TO PURSUITS OF

SUSPECTED MISDEMEANANTS

The “‘central requirement’” of the Fourth Amendment “is one of reasonableness.” Illinois v. McArthur,

531 U.S. 326, 330 (2001); see supra pp. 2-3. This Court

long ago held that it is reasonable for the police to pursue a fleeing suspect into a home, without first obtaining a warrant, if there is probable cause to believe the

suspect committed a felony. See United States v. Santana, 427 U.S. 38, 42-43 (1976). But the Court has

never extended that categorical rule to cases involving

individuals suspected of committing only a misdemeanor. It should not do so now.

A. The Court Has Only Applied a Categorical

Hot-Pursuit Exception in the Felony Context

Before Santana, this Court had considered, but not

adopted, a hot-pursuit exception. In Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 297-298

(1967), the government invoked the exception after

police entered a home without a warrant to apprehend

an armed robbery suspect. Witnesses who observed

the robbery followed the suspect to his home and

called the police, who arrived “[w]ithin minutes.” Id.

at 297. While two Justices indicated that the “‘hot

pursuit’ exception” justified the warrantless entry, id.

at 312 (Fortas, J., concurring), the Court resolved the

Fourth Amendment question on case-specific grounds,

id. at 298 (opinion of the Court). The Court explained

that delay in seeking a warrant would have “gravely

endanger[ed]” the lives of law enforcement officials “or

the lives of others,” and only an immediate “search of

the house for persons and weapons could have insured

that [the suspect] was the only man present” in the

home “and that the police had control of all weapons

which could be used against them or to effect an

escape.” Id. at 298-299.9

In Santana, the Court made clear that Hayden was

not a “true ‘hot pursuit’” case because it did not involve

a “chase.” Santana, 427 U.S. at 42-43 & n.3. Instead,

Hayden “was based upon the ‘exigencies of the situation.’” Id. at 42 n.3. By contrast, Santana did involve

a “chase”: Several narcotics agents made a controlled

drug buy, purchasing heroin with marked bills before

following the street-level dealer to the home of

Dominga Santana, a higher-level dealer. Id. at 39-40.

After Santana took the money and gave the heroin to

the street-level dealer, the agents approached the

home, “shouting ‘police,’ and displaying their identification.” Id. This led Santana, who initially stood

“directly in the doorway,” id. at 40 n.1, to “retreat[]

into the vestibule of her house,” id. at 40. Although

the agents did not have a warrant, they followed her

inside and arrested her. Id. at 40-41.

This Court upheld the entry and arrest, reasoning

that the “hot pursuit” was “sufficient to justify the

warrantless entry.” Santana, 427 U.S. at 42-43.

While the Court acknowledged that the “pursuit . . .

ended almost as soon as it began,” id. at 43, it held

9 The Court also considered the hot-pursuit exception in Johnson

v. United States, 333 U.S. 10, 16 n.7 (1948), where federal narcotics agents entered an apartment without a warrant based on

probable cause of opium consumption. The government argued

“that ‘[i]n a sense,’ the arrest was made in ‘hot pursuit.’” Id. But

the Court perceived “no element of ‘hot pursuit’ in the arrest of

one who was not in flight, was completely surrounded by agents

before she knew of their presence, . . . and who made no attempt

to escape.” Id.

that the hot-pursuit exception requires only “some

sort of a chase,” not “an extended hue and cry in and

about the public streets,” id. (internal quotation

marks and alteration omitted). As the Court recognized, once Santana “saw the police,” there was “a

realistic expectation that any delay would result in

destruction of evidence.” Id.

Since Santana, this Court has used categorical

terms to describe the exception that it adopted in that

case. See, e.g., Steagald v. United States, 451 U.S. 204,

221 (1981); supra p. 5. The Court routinely lists “hot

pursuit” of a felony suspect as its own category of exigency—separate from case-specific exigencies, such as

risk of physical harm or evidence destruction, which

require an evaluation of the totality of the circumstances in a particular case. See, e.g., Minnesota v.

Olson, 495 U.S. 91, 100 (1990) (recognizing that, “in

the absence of hot pursuit,” there must be “at least

probable cause to believe that one or more” case-specific exigencies “were present”); Missouri v. McNeely,

569 U.S. 141, 149 (2013) (similar); Kentucky v. King,

563 U.S. 452, 460 (2011) (similar); Stanton v. Sims,

571 U.S. 3, 8 (2013) (per curiam) (describing “our precedent holding that hot pursuit of a fleeing felon justifies an officer’s warrantless entry”).10

Over the decades, the categorical rule adopted in

Santana has proved to be a workable and sensible one.

In “many cases,” as in Santana, “there will be a danger

that evidence will be destroyed if there is delay, and

there will sometimes be a danger of flight or a threat

10 Lower courts, too, have understood the exception as a categorical one. See, e.g., State v. Thomas, 280 Kan. 526, 536 (2005) (“hot

pursuit alone justifies a warrantless intrusion into a home”);

United States v. Schmidt, 403 F.3d 1009, 1015 (8th Cir. 2005)

(similar).

of harm to the officers as well.” Bodine v. Warwick, 72

F.3d 393, 399 (3d Cir. 1995) (Alito, J.). Indeed, “[n]ot

infrequently, a prompt entry to arrest is called for in

order to minimize the risk that someone will be

injured or killed.” 3 LaFave, Search & Seizure: A

Treatise on the Fourth Amendment § 6.1(f) (6th ed.

2020) (LaFave); see also id. § 6.1(d). Because these

exigencies will frequently arise when police pursue

fleeing felony suspects, it is appropriate to replace

case-specific application of the exigent circumstances

exception with a bright line rule, categorically

allowing officers to pursue a suspect into a home for

the limited purpose of effecting a felony arrest. See,

e.g., State v. Weber, 372 Wis. 2d 202, 222 (2016)

(discussing the “intuitive reasonableness” of the

established “hot pursuit doctrine”).

But this Court has never applied the hot-pursuit

exception to a case involving a suspected misdemeanant. The offense giving rise to the pursuit in Santana

was a felony drug crime. See 427 U.S. at 41. And the

Court has explicitly described its precedent as “holding that hot pursuit of a fleeing felon justifies an officer’s warrantless entry,” Stanton, 571 U.S. at 8 (emphasis added), while reserving 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.

B. The Court Should Not Extend the Categorical Hot-Pursuit Exception to the Misdemeanor Context

The factors this Court normally considers when

deciding whether to extend a categorical Fourth

Amendment exception to a different context do not

support extending the felony hot-pursuit exception to

the context of misdemeanor pursuits.

1. The Fourth Amendment generally “prohibit[s]

the warrantless entry of a person’s house as unreasonable per se,” and this Court has recognized only “‘carefully drawn’” exceptions to that rule. Georgia v. Randolph, 547 U.S. 103, 109 (2006); see supra pp. 3-4.

That level of caution is particularly appropriate when

considering whether to extend a categorical exigencybased exception because “‘the fact-specific nature’” of

the reasonableness inquiry normally “demands that

[courts] evaluate each case of alleged exigency based

‘on its own facts and circumstances.’” McNeely, 569

U.S. at 150.

Of course, this Court has also recognized that certain circumstances justify an “exception[] to the warrant requirement that appl[ies] categorically,”

McNeely, 569 U.S. at 150 n.3, and one of those circumstances is “law enforcement’s need to” enter a home

while “engage[d] in ‘hot pursuit’” of a suspected felon,

id. at 149 (quoting Santana, 427 U.S. at 42-43). The

chief virtue of categorical rules as a general matter is

that they establish bright lines that are more administrable for police and the courts: they avoid the need

for case-by-case assessments in contexts where some

common fact or circumstance means that a search or

seizure will “in general [be] reasonable.” Thornton v.

United States, 541 U.S. 615, 627 (2004) (Scalia, J., concurring in the judgment).11

In the context of the exception for searches incident

to arrest, for example, the Court recognized that a

case-by-case approach would unduly interfere with a

“police officer’s determination as to how and where to

search the person of a suspect whom he has arrested.”

11 See also LaFave, “Case-by-Case Adjudication” Versus “Standardized Procedures,” 1974 Sup. Ct. Rev. 127, 141-143.

United States v. Robinson, 414 U.S. 218, 235 (1973).

The “need to disarm and to discover evidence” is commonly present when police effect an arrest. Id. The

Court thus concluded that the legality of an officer’s

“ad hoc judgment” about whether to conduct such a

search should “not depend on what a court may later

decide was the probability in a particular arrest situation that weapons or evidence would in fact be found

upon the person of the suspect.” Id.12

But categorical Fourth Amendment rules can also

have drawbacks. They are blunt instruments, by

design. They may at times be applied in cases in

which, absent the categorical rule, a case-specific inquiry into all the facts and circumstances would cast

doubt on the reasonableness of a search. Cf. Richards

v. Wisconsin, 520 U.S. 385, 393 (1997) (rejecting proposed categorical rule that “contain[ed] a considerable

overgeneralization”). And once this Court has adopted

a categorical Fourth Amendment rule, it should be

expected that police will internalize it and apply it—

even if they would have concluded that a particular

search or seizure might be unreasonable if evaluated

on all the particular facts of a case in the absence of a

categorical rule. See, e.g., Thornton, 541 U.S. at 627628 (Scalia, J., concurring in the judgment).

In view of those drawbacks, the Court does not

reflexively extend existing categorical exceptions to a

12 Other examples of categorical Fourth Amendment exceptions

include the “automobile exception,” McNeely, 569 U.S. at 150 n.3

(citing California v. Acevedo, 500 U.S. 565, 569-570 (1991)), and

the rule allowing police to make warrantless public arrests of felony suspects based on probable cause, see United States v. Watson, 423 U.S. 411, 423 (1976) (adopting categorical rule, “rather

than . . . encumber[ing] criminal prosecutions with endless litigation [over] the existence of exigent circumstances”).

new or distinct context. Instead, it generally conducts

a fresh inquiry, examining any relevant “guidance

from the founding era,” the privacy concerns that

would be implicated by extending the exception, and

the “‘legitimate governmental interests’” at stake.

Riley v. California, 573 U.S. 373, 385 (2014). In Atwater v. City of Lago Vista, for example, the Court carefully examined those considerations before extending

to misdemeanor suspects the existing categorical rule

allowing warrantless arrests of suspected felons in

public. See 532 U.S. 318, 327-354 (2001).13 In Riley,

those factors persuaded the Court to reject extension

of the search-incident-to-arrest exception to searches

of digital information on a cell phone seized from an

arrestee. 573 U.S. at 385-386. Here, the same considerations weigh against extending the categorical hotpursuit exception to the misdemeanor context.

2. The founding-era history supports a categorical

hot-pursuit exception for suspected felons, but offers

scant support for extending that exception to suspected misdemeanants. The “common-law sources

display a sensitivity to privacy interests that could not

have been lost on the Framers,” providing an “unequivocal endorsement of the tenet that ‘a man’s house

is his castle.’” Payton v. New York, 445 U.S. 573, 596,

598 (1980); see, e.g., Semayne’s Case, 77 Eng. Rep. 194,

195 (KB 1604). Although some commentators “disagreed” about “whether a constable had the authority

to make warrantless arrests in the home on mere suspicion of a felony,” Payton, 445 U.S. at 592, 593, “the

weight of authority as it appeared to the Framers was

13 Atwater reserved the question whether the Fourth Amendment

allows warrantless public arrests of misdemeanor suspects where

the offense was not committed “‘in the presence’” of an officer.

532 U.S. at 340-341 & n.11.

to the effect that a warrant was required” and “the

prevailing practice was not to make such arrests”—

“except in hot pursuit or when authorized by a warrant,” id. at 596, 598.

As the Court explained in Payton, a leading common law commentator viewed the hot-pursuit exception as generally limited to felony cases. Sir Matthew

Hale opined “that in the case where the constable suspects a person of a felony, ‘if the supposed offender fly

and take house, and the door will not be opened upon

demand of the constable and notification of his business, the constable may break the door, tho he have no

warrant.’” 445 U.S. at 595 n.41; see 2 Matthew Hale,

The History of the Pleas of the Crown 92, 94 (1st Am.

ed. 1847). None of the other common law sources discussed by the Court in Payton indicated that this warrantless entry exception extended to pursuits of all

fleeing suspects on a categorical basis. See 445 U.S. at

594-598 & n.41; see also Steagald, 451 U.S. at 218.

Historical scholarship published since Payton is

consistent with the understanding that the exception

was generally limited to felony suspects. One recent

historical survey describes two common law doctrines

allowing warrantless entries into a home for the purpose of effecting an arrest. The first, the “fleeing felon

exception,” allowed the police to enter homes “in pursuit of ” a felony suspect. Donohue, The Original

Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1196 n.56,

1228-1229 (2016). The second, the “ancient tradition”

of “hue and cry,” bore a “close relationship” to the fleeing felon exception; it “extended the authority to

apprehend” felony suspects “beyond officers of the

Crown” to private citizens in certain circumstances.

Id. at 1231. 14 These common law exceptions were

somewhat broader than the modern hot-pursuit exception in that they apparently extended to individuals

who were suspected for recently committed offenses

but who were not actively fleeing an arrest attempt.

See Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 622 & n.198 (1999);

Steagald, 451 U.S. at 229, n.2 (Rehnquist, J., dissenting).

More relevant for present purposes, however, both

common law exceptions appear to have been limited to

felony offenses, with the possible exception of certain

non-felony offenses that involved violence or a risk of

harm to others. For example, Joseph Chitty recognized that officers “may be justified in breaking open

doors” to apprehend a person on “suspicion of a felony”

or where “a dangerous wound [is] given, and the

offender being pursued, takes refuge in his own

house.” 1 Joseph Chitty, A Practical Treatise on the

Criminal Law 35 (1819); see also id. at 38 (“or where

those who have made an affray [i.e., a public fight] fly

to a house, and are pursued”). 15 Similarly, Coke

described “Hue and Cry by the Common Law, or for

the King” as applying “when any felony is committed,

or any person grievously and dangerously wounded, or

14 The practice of “hue and cry” required “all persons between the

ages of fifteen and sixty” to assist law enforcement officers in

searching for a suspect wanted for a recently committed felony—

including, if necessary, by entering a suspect’s home without a

warrant. Donohue, supra, p. 1231.

15 See also Cuddihy, The Fourth Amendment: Origins and Origi-

nal Meaning 602-1791 pp. 750-751 (2009 ed.); Davies, supra,

p. 644; Schroeder, Warrantless Misdemeanor Arrests and the

Fourth Amendment, 58 Mo. L. Rev. 771, 812 n.147 (1993).

any person assaulted and offered to be robbed either

in the day or night.” 3 Edward Coke, Institutes of the

Laws of England 116 (6th ed. 1680).16 That history

provides considerable support for the categorical hotpursuit exception with respect to individuals suspected of committing felony offenses; it provides no

support for extending that exception to every case of

flight by a suspected misdemeanant.

3. Privacy interests also weigh heavily against extending the categorical hot-pursuit exception to the

misdemeanor context. “‘[W]hen it comes to the Fourth

Amendment, the home is first among equals.’” Collins

v. Virginia, 138 S. Ct. 1663, 1670 (2018); see also Kyllo

v. United States, 533 U.S. 27, 40 (2001) (the “Fourth

Amendment draws ‘a firm line at the entrance to the

house’”). At the Amendment’s “‘very core’ stands ‘the

right of a man to retreat into his own home and there

be free from unreasonable governmental intrusion.’”

Florida v. Jardines, 569 U.S. 1, 6 (2013). Thus, when

the Court is setting a rule regarding the authority of

government officials to “‘cross the threshold’” of a person’s home without a warrant, Payton, 445 U.S. at 601

n.54, the privacy interests protected by the Fourth

Amendment are at their apex.

Expanding the categorical hot-pursuit exception to

encompass misdemeanor pursuits would threaten

those interests in a number of ways. While an officer

entering the home for the limited purpose of effecting

an arrest lacks authority to conduct a “full-blown” or

“‘top-to-bottom’ search” of the premises, Maryland v.

16 See also 2 Richard Burn, The Justice of the Peace and Parish

Officer 716-718 (20th ed. 1805) (similar); 2 Hale, supra pp. 98,

101-102 (similar).

Buie, 494 U.S. 325, 336 (1990), the disturbance of privacy interests can still be significant. An officer may

conduct a “sweep” of multiple rooms, for example, and

may “look in closets” for anyone else present in the

home who could pose a danger. Id. at 333, 334. That

sudden scrutiny of a private home surely implicates

the “privacy and dignity” interests of those inside the

home, Hudson v. Michigan, 547 U.S. 586, 594 (2006)—

especially any “innocent” occupants who may have

nothing to do with the misdemeanor offense giving

rise to the pursuit, Michigan v. Tyler, 436 U.S. 499,

505 (1978); see, e.g., Stanton, 571 U.S. at 4-5; Mascorro

v. Billings, 656 F.3d 1198, 1202 (10th Cir. 2011). A

“surprised resident” may have no time “‘to pull on

clothes or get out of bed’” before the officer’s entry.

Hudson, 547 U.S. at 594. Or he may react with “violence in supposed self-defense,” endangering officers

as well as other occupants. Id.; see, e.g., State v.

Markus, 211 So. 3d 894, 910 (Fla. 2017) (noting the

“potential danger that accompanies an officer’s entry

into the private dwelling,” including “the potential for

officer injuries or fatalities”).

A ruling from this Court extending the hot-pursuit

exception to all misdemeanor offenses on a nationwide

basis could materially increase the number and frequency of hot-pursuit entries implicating these significant privacy interests. Misdemeanor offenses span a

wide range of conduct, from “jaywalking and littering,”

Markus, 211 So. 3d at 911, to “public intoxication,”

“unlawful assembly,” “obstructing a sidewalk,” and

“public nuisance,” Pet. 25. And it is not uncommon for

the police to interact with suspected misdemeanants

near their homes, in circumstances (akin to those in

Santana) where a few steps by a suspect from her

front yard, porch, stoop, or doorway into her home

could qualify as a “hot pursuit.” Supra pp. 13-14; see,

e.g., Markus 211 So. 3d at 897; Butler v. State, 309

Ark. 211, 215-217 (1992); see also Pet. 14, n.6 (collecting similar examples).17

Of course, the felony hot-pursuit exception that

this Court adopted in Santana also implicates legitimate privacy interests. But the constitutional balance

is materially different in the misdemeanor and felony

contexts. The greater number and frequency of misdemeanor offenses and arrests suggests that, in the

aggregate, the intrusions on privacy resulting from

the existing exception are lesser than those that would

result from an expanded exception. And, as discussed

below, the interests of law enforcement in pursuing a

fleeing felony suspect into a home are typically of a

different and weightier nature than those associated

with pursuing a suspected misdemeanant.

4. a. The law enforcement interests that justify

the felony hot-pursuit exception do not arise with the

same frequency in the misdemeanor context. The

17 The “potential for abuse” is also a relevant factor in assessing

privacy interests under the Fourth Amendment. Steagald, 451

U.S. at 215. The State is not aware of any indication that law

enforcement officers in California, or other jurisdictions that currently apply a categorical hot-pursuit exception in the misdemeanor context, have abused their authority in invoking or

applying that rule. But enshrining a nationwide misdemeanor

hot-pursuit exception in this Court’s Fourth Amendment doctrine

would surely present a greater potential for abuse than a rule

requiring officers to identify case-specific circumstances justifying a warrantless entry. See generally Nieves v. Bartlett, 139 S.

Ct. 1715, 1727 (2019) (noting “‘a risk that some police officers

may exploit the arrest power’”); Payton, 445 U.S. at 616-617

(White, J., dissenting) (stressing the importance of a “felony

requirement” for warrantless home entries to “guard[ ] against

abusive or arbitrary enforcement” and “ensure[ ] that invasions

of the home occur only in case of the most serious crimes”).

principal justification for the exception in the felony

context is that the flight of a suspected felon into a

home is likely to implicate at least one of several recognized exigent circumstances justifying a warrantless entry: a serious risk of physical harm to others,

see Brigham City v. Stuart, 547 U.S. 398, 406 (2006);

the destruction of evidence, see King, 563 U.S. at 460;

or the escape of the suspect, see Hayden, 387 U.S. at

298-299; see also Bodine, 72 F.3d at 399; State v.

Thomas, 280 Kan. 526, 537 (2005); supra pp. 14-15.

Each of those circumstances is less likely to arise in

the context of misdemeanor pursuits.

As to the risk of harm to others, while misdemeanors sometimes involve dangerous conduct, see Tennessee v. Garner, 471 U.S. 1, 14 (1985), the “conduct at

issue in misdemeanors is typically not particularly

dangerous,” Natapoff, The High Stakes of Low-Level

Criminal Justice, 128 Yale L.J. 1648, 1695 (2019). The

underlying offense in a misdemeanor-pursuit case is

thus far less likely to suggest a risk of imminent violence than in a felony case. Compare Hayden, 387 U.S.

at 298-299 (felony armed robbery offense gave police

reason to believe suspect would threaten the “lives [of

police] or the lives of others”).

Recent scholarship supports that conclusion. An

empirical analysis of thousands of misdemeanor

charges filed in eight separate U.S. jurisdictions indicates that four offenses make up more than half of all

misdemeanor cases: “possession of marijuana, petty

theft, DUI, and simple assault/battery.” Mayson &

Stevenson, Misdemeanors by the Numbers, 61 B.C.

L. Rev. 971, 999 (2020).18 Marijuana possession and

18 The study excluded non-DUI traffic offenses from this calculation.

petty theft are plainly nonviolent. Driving under the

influence involves “little remaining threat to the public safety” once the suspect arrives at home and is off

the road. Welsh v. Wisconsin, 466 U.S. 740, 753 (1984).

And while simple assault or battery offenses can sometimes suggest a continuing risk of harm to others,

other times they will not. Cf. Johnson v. United States,

559 U.S. 133, 141 (2010) (simple battery often requires

only “the merest touching”).19

The risk of evidence destruction also arises less frequently in the misdemeanor context. In many cases

there will be no physical evidence associated with the

underlying misdemeanor offense. See Mayson & Stevenson, supra, p. 1044 (listing numerous misdemeanor offenses unlikely to involve physical evidence).

Here, for example, the only conduct relevant to

Lange’s misdemeanor flight offense was recorded by

the officer’s dashboard video camera. Supra p. 6 &

n.3. Similarly, in a hot-pursuit case involving the misdemeanor of driving without working taillights, there

was “no evidence which could have potentially been

destroyed.” Mascorro, 656 F.3d at 1207; see also People v. Hammerlund, 504 Mich. 442, 461 (2019) (defendant was suspected of misdemeanor-level failure to

19 Other commonly prosecuted misdemeanors include public intoxication, trespass, possession of drug paraphernalia, resisting

arrest, underage drinking, vandalism, failing to give information

to police, and general regulatory offenses (such as violating regulations governing commercial or recreational activities). See

Mayson & Stevenson, supra, pp. 993 & n.86, 1000, 1044. Each is

unlikely to suggest an ongoing risk of physical harm to others.

See generally id. at 974; Baughman, Dividing Bail Reform, 105

Iowa L. Rev. 947, 990-992 (2020) (explaining that misdemeanors

are less likely to qualify as dangerous offenses for purposes of

determining eligibility for release under state bail regimes).

report traffic accident “and there was no evidence of

that crime that she could destroy”).

To be sure, other misdemeanor-pursuit cases may

involve physical evidence. But the fleeing suspect will

have less incentive to destroy it, when compared with

a suspected felon, because the potential penalties for

conviction would be less serious. In Smith v. Stoneburner, 716 F.3d 926, 931-933 (6th Cir. 2013), for

example, Judge Sutton doubted that an individual

suspected of stealing a “$14.99 phone charger” would

attempt to destroy evidence during the time it would

take the police to secure an arrest warrant. He

explained that “[a]ny destruction of evidence . . .

would have elevated a minor misdemeanor . . . into the

felony of evidence tampering.” Id. at 932.

For similar reasons, the risk that a suspect will

attempt to escape while the police obtain a warrant is

less pronounced in misdemeanor-pursuit cases. A

number of factors discourage suspects from fleeing a

home while officers stand outside awaiting a warrant:

a flight from the home could expose the suspect to

additional criminal penalties beyond those he is

already facing, see infra p. 28, n.22; it may endanger

the suspect’s physical safety, cf. Garner, 471 U.S. at 34; and, unless the suspect intends to remain on the

lam, a successful escape might provide only a temporary reprieve from apprehension. While the serious

penalties for felonies may sometimes motivate a suspect to assume those risks, the penalties associated

with a misdemeanor are comparatively less likely to

do so. Indeed, this Court recognized in Welsh that “an

important factor to be considered” when determining

whether an escape- or evidence destruction-based exigency exists “is the gravity of the underlying offense

for which the arrest is being made.” 466 U.S. at 753.

Although Justice White dissented in Welsh, he agreed

that the gravity of the underlying offense “bears on

the likelihood” that a suspect will have an incentive to

“flee and escape apprehension” while police wait for a

warrant. Id. at 759 (White, J., dissenting).20

b. There are undoubtedly valid government interests that would be served by extending the categorical

hot-pursuit exception to misdemeanors, but they are

not sufficient to overcome the threatened intrusion on

legitimate privacy interests. Without a categorical

rule in misdemeanor-pursuit cases, some misdemeanor arrests or prosecutions may be thwarted by a

suspect’s escape or destruction of evidence in circumstances where the pursuing officers cannot identify

another legitimate basis for an immediate warrantless

entry. But see infra pp. 30-32. As this Court has recognized, however, “[p]rivacy comes at a cost.” Riley,

573 U.S. at 401. On balance, the marginal risk of

interfering with certain misdemeanor arrests and

prosecutions is insufficient to justify a categorical

exception to the warrant requirement for all misdemeanor pursuits. Cf. 4 William Blackstone, Commentaries on the Laws of England 5 (1769) (misdemeanors

are “smaller faults, and omissions of less consequence”

than felonies).

20 Welsh held that police violated the Fourth Amendment by con-

ducting a warrantless home entry to arrest a suspect for a

recently committed drunk-driving offense (classified as a civil,

nonjailable offense at the time in Wisconsin). See 466 U.S. at

742, 753-754. The crux of the disagreement between the majority

and dissent was whether “the need to preserve evidence of the

petitioner’s blood-alcohol level” qualified as an exigent circumstance. Id. at 753; see infra p. 32.

Another argument in favor of a categorical misdemeanor-pursuit rule is that, in its absence, suspects

would have “an incentive to flee law enforcement.”

City of Bismarck v. Brekhus, 908 N.W.2d 715, 723

(N.D. 2018).21 But fleeing into a home hardly earns a

suspect a get-out-of-jail-free card: the police may “remain[] in the area of the house as they wait[] to obtain

a warrant,” and then enter to effect an arrest as soon

as they have the warrant. Markus, 211 So. 3d at 912;

cf. Steagald, 451 U.S. at 221 n.14 (officers “may avoid

altogether the need to obtain a . . . warrant simply by

waiting for a suspect to leave”). Moreover, fleeing

from the police or otherwise resisting arrest is itself a

criminal offense in every State, often accompanied by

substantial penalties.22 In light of those penalties, it

is not at all clear that a categorical exception to the

warrant requirement is necessary to deter a misdemeanor suspect from fleeing when the police attempt

to arrest the suspect in public.

A final argument in favor of a categorical misdemeanor-pursuit exception is that police would otherwise be required to make determinations in the field

21 See also State v. Legg, 633 N.W.2d 763, 772 (Iowa 2001) (“Society has an interest in not rewarding the evasion of lawful police

authority by allowing suspects who make it to their homes steps

ahead of law enforcement officers to claim sanctuary.”).

22 See, e.g., supra pp. 7-8 & n.5 (discussing misdemeanor flight

offenses under California law); Cal. Veh. Code §§ 2800.2-2800.3

(imposing felony-grade offenses for exhibiting “willful or wanton

disregard” for public safety in the course of fleeing or evading

officers); Ala. Code § 13A-10-52 (fleeing or attempting to elude a

law enforcement officer); Mont. Code Ann. § 61-8-316 (similar);

N.Y. Penal Law §§ 270.25-270.35 (similar); Neb. Rev. Stat. § 28904 (resisting arrest); Ky. Rev. Stat. Ann. § 520.090 (similar).

about whether a fleeing suspect has committed a felony or misdemeanor. See, e.g., State v. Paul, 548

N.W.2d 260, 268 (Minn. 1996). As this Court recognized in Atwater, “officer[s] on the street” are not

always “able to tell” the difference between various

classes of offenses. 532 U.S. at 348. But the reality is

that a number of constitutional and statutory requirements already require police to differentiate between

classes of offenses. In most States, for example, officers must know whether an offense is a felony or misdemeanor because their authority to conduct a warrantless arrest may turn on that distinction. 23 In

jurisdictions that have refused to extend the hot-pursuit exception to misdemeanors, police already must

differentiate between felony and misdemeanor

offenses before invoking the exception to enter a home

without a warrant. See, e.g., Markus, 211 So. 3d at

911; Mascorro, 656 F.3d at 1207; Butler, 309 Ark. at

217. And even in many jurisdictions that have recognized a categorical hot-pursuit exception in the misdemeanor context, police must distinguish between “jailable” and “nonjailable” offenses.

See, e.g.,

Commonwealth v. Jewett, 471 Mass. 624, 634 (2015)

(adopting “hot pursuit exception” that is limited “to

felonies and jailable misdemeanors”) (emphasis

23 An officer may generally arrest a suspect in public for a misdemeanor only if it was committed “in the officer’s presence,” but no

such limitation applies to warrantless felony arrests. E.g., Cal.

Penal Code § 836(a); see Atwater, 532 U.S. at 354-360 (collecting

similar statutes in numerous other States); see also, e.g., 3

LaFave, supra, § 5.1(b) (discussing the “Uniform Act on Fresh

Pursuit,” adopted in most States, allowing an officer pursuing a

felony suspect, but not a misdemeanor suspect, to follow the suspect across state lines to effect an arrest in another State); Council of State Governments, The Handbook on Interstate Crime Control 1-2 (1949 ed.) (setting out the Act’s text).

added); City of Bismarck, 908 N.W.2d at 723 (similar);

In re Lavoyne M., 221 Cal. App. 3d 154, 159 (1990)

(similar).

Of course, there will be some occasions in which a

pursuing officer is unsure in the moment whether the

suspected crime giving rise to a pursuit is a felony or

a misdemeanor. In those circumstances, if no casespecific exigency justifies a warrantless entry, the

appropriate course will be for the officer either to

await confirmation that the offense is a felony or to

obtain a warrant. The costs associated with that delay

are not trivial, but they are consonant with the “sanctity of the home,” Payton, 445 U.S. at 601, as well as

the principle that “‘[f]reedom from intrusion into the

home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment,’” id. at 587.

C. Existing Doctrine Enables Police to Enter

a Home in Pursuit of a Misdemeanor

Suspect in Appropriate Cases

As just noted, in many cases existing doctrine will

allow police to pursue a misdemeanor suspect who

flees into a home, either by identifying a case-specific

exigency or by obtaining a warrant.

1. In appropriate misdemeanor cases, courts

uphold warrantless home entries based on case-specific exigencies. In Brigham City, for example, this

Court held that officers lawfully entered a home without a warrant based on “an objectively reasonable

basis for believing” that an “injured adult might need

help” inside the home and that additional “violence”

was about to break out. 547 U.S. at 406. It made no

difference that the police had witnessed only misdemeanor-level conduct before entering. See id. at 405.24

Although Brigham City was not a hot-pursuit case,

lower courts have repeatedly recognized case-specific

exigencies in the context of misdemeanor hot pursuits.

In United States v. Johnson, 106 F. App’x 363, 364,

368 (6th Cir. 2004), for example, police “responded to

a report that a man was firing a shotgun from a porch

of a home”—a misdemeanor offense in the relevant

jurisdiction—and then “observed [the] man recklessly

fire two shots into the air, reload the shotgun, and

then flee into the house.” The Sixth Circuit held that

the officers plainly faced “a dangerous situation” justifying an immediate, warrantless entry. Id. at 368;

see also United States v. Lenoir, 318 F.3d 725, 727 (7th

Cir. 2003) (similar). Other examples of safety-based

exigencies that may arise in the misdemeanor-pursuit

context include criminal-trespass episodes, where a

fleeing suspect enters or breaks into the home of

strangers, see, e.g., White v. Hefel, 875 F.3d 350, 357

(7th Cir. 2017); United States v. Collins, 650 F. App’x

398, 399 (9th Cir. 2016), and misdemeanor domesticviolence offenses, where police need to enter the home

immediately to protect a victim from physical harm,

cf. United States v. Martinez, 406 F.3d 1160, 1164 (9th

Cir. 2005); Fletcher v. Town of Clinton, 196 F.3d 41, 51

(1st Cir. 1999).

Case-specific concerns about evidence destruction

or escape could also support a warrantless entry in

24 Cf. Mitchell v. Wisconsin, 139 S. Ct. 2525, 2537 (2019) (upholding warrantless blood test in misdemeanor DUI case to prevent

destruction of evidence); McArthur, 531 U.S. at 331 (upholding

warrantless two-hour detention to prevent suspect from entering

home while police sought a warrant to search the home for evidence of misdemeanor drug possession).

certain misdemeanor-pursuit cases. For example, the

conduct of a person suspected of possessing or using

drugs might, in appropriate circumstances, lead officers to believe that the suspect will destroy the drugs

upon entering a house. And where police pursue a

DUI suspect, exigent circumstances could conceivably

justify a warrantless entry if specific facts indicate

that the suspect will either “attempt[] to flee” or “ingest more alcohol” inside his home—thereby interfering with the officers’ ability to determine his blood-alcohol content at the time of the offense. People v.

Thompson, 38 Cal. 4th 811, 826-827 (2006) (officers

witnessed a DUI suspect attempt to flee out of the

back door of his home “to evade police investigation”);

see also State v. Legg, 633 N.W.2d 763, 772 (Iowa 2001)

(suspect’s willingness to flee from authorities suggested a “real possibility” that suspect would “drink

[more] alcohol in her home” to thwart a DUI investigation).

This Court’s decision in Welsh does not foreclose

police from relying on case-specific exigencies in the

misdemeanor context. As noted above, the Court recognized that “an important factor to be considered”

when determining whether an escape- or evidencebased exigency exists “is the gravity of the underlying

offense for which the arrest is being made.” 466 U.S.

at 753. But while the seriousness of an offense is a

relevant factor in evaluating whether a suspect is

likely to destroy evidence or attempt to escape, see

supra pp. 26-27, once officers have made an objectively

reasonable determination that such an exigency exists

based on the particular circumstances before them, a

warrantless entry may be justified, cf. McArthur, 531

U.S. at 336.

2. In other cases involving misdemeanor pursuits,

police may be able to obtain a warrant to enter the

suspect’s home. While the officer in this case did not

do so—quite reasonably, in light of longstanding state

appellate precedent, see, e.g., People v. Lloyd, 216 Cal.

App. 3d 1425, 1430 (1989)—the circumstances would

have allowed him to pursue an arrest warrant. The

traffic infractions alone would have provided a basis

for such a warrant. See Cal. Penal Code §§ 817, 840.25

The officer also had probable cause for a warrant

based on Lange’s failure “to immediately pull over”

when the officer activated his lights. Pet. App. 17a;

see supra pp. 7-8 & n.5.

And the officer could have applied for the warrant

while remaining outside of Lange’s home. In California, like many States, officers may apply for warrants

from the field by telephone or other electronic means.

See Cal. Penal Code §§ 817(b)-(d), 1526(b)-(c); McNeely,

569 U.S. at 154 & n.4. Processing times can vary depending on a number of factors, including the availability of a magistrate, but telephonic and electronic

warrants can sometimes be obtained in under an hour.

See, e.g., Riley, 573 U.S. at 401. While the Fourth

Amendment requires an arrest-warrant application to

identify the suspect with particularity, the application

need not specify the suspect’s name so long as it sufficiently describes him. See generally 3 LaFave, supra,

§ 5.1(h); People v. Robinson, 47 Cal. 4th 1104, 1131

(2010). In this case, for example, it would have sufficed for the officer to describe Lange’s specific conduct,

25 In practice, however, it is unusual for officers to seek an arrest

warrant for nonjailable infractions.

the automobile he was driving, and the address of the

residence he entered.26

D. The Court Should Remand for Application

of the Good-Faith Exception

If the Court declines to extend the categorical hotpursuit exception to the misdemeanor context, the record here would provide no basis for the warrantless

entry of Lange’s garage. Pet. 17. Before entering the

garage, the officer had probable cause to believe that

Lange had committed only a misdemeanor offense—

failure to comply with the officer’s lawful command to

stop. See supra pp. 7-8 & n.5. The record does not

establish any case-specific exigency that would have

otherwise made the entry objectively reasonable:

Petitioner posed no apparent risk of harm to himself

or others, and there were no particular facts establishing a risk of flight from the home or destruction of evidence. To the contrary, the evidence of the misdemeanor offense giving rise to the entry had already

been recorded by the camera attached to the dashboard of the officer’s cruiser. See supra p. 6 & n.3.

That is not to say that Lange’s underlying DUI conviction is infirm. Even if this Court were to reject the

categorical hot-pursuit exception, there is no basis for

suppressing the evidence of Lange’s intoxication

because the officer’s entry was made in good-faith reliance on “binding appellate precedent.” Davis v.

26 One legal obstacle the officer in this case might have faced was

the late hour: under California law, an officer may not execute

an arrest warrant for a non-felony offense between the hours of

10 p.m. and 6 a.m. unless a magistrate concludes there is “good

cause” to do so and issues a warrant expressly authorizing such

a nighttime arrest. Cal. Penal Code § 840(4); see also, e.g., Okla.

Stat. tit. 22, § 189 (similar); Nev. Rev. Stat. § 171.136(2) (similar);

Minn. R. Crim. P. 3.03(3) (similar).

United States, 564 U.S. 229, 232 (2011); see, e.g., Lloyd,

216 Cal. App. 3d at 1430. Indeed, long before that

entry, this Court had recognized that “the California

Court of Appeal refused to limit the hot pursuit exception to felony suspects.” Stanton, 571 U.S. at 7. Under

the “‘good-faith’ exception” to the exclusionary rule,

the fruits of that entry need not be suppressed. Davis,

564 U.S. at 238. Because this issue falls outside the

question presented, however, and because this Court

is “‘a court of review, not of first view,’” Manuel v. City

of Joliet, Ill., 137 S. Ct. 911, 922 (2017), the Court

should remand for the court below to address the issue

in the first instance.

CONCLUSION

The Court should vacate the judgment below and

remand for further proceedings.

Respectfully submitted,

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

LANCE E. WINTERS

Chief Assistant Attorney General

JEFFREY M. LAURENCE

Senior Assistant Attorney General

SAMUEL T. HARBOURT

HELEN H. HONG

Deputy Solicitors General

DONNA M. PROVENZANO

Supervising Deputy

Attorney General

KIMBERLY M. CASTLE

Associate Deputy

Solicitor General

December 4, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.