Amicus Curiae Brief — Arthur Gregory Lange, Petitioner v. California
Supreme Court briefDec 11, 2020
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No. 20-18
In the Supreme Court of the United States
______________
ARTHUR GREGORY LANGE,
Petitioner,
v.
STATE OF CALIFORNIA,
______________
Respondent.
On Writ of Certiorari
to the Court of Appeal of the State of California,
First Appellate Division
______________
BRIEF OF ILLINOIS, THE DISTRICT OF
COLUMBIA, IOWA, MARYLAND, MICHIGAN,
NEVADA, OREGON, AND VIRGINIA AS AMICI
CURIAE IN SUPPORT OF PETITIONER
____________
JANE ELINOR NOTZ*
Solicitor General
SARAH A. HUNGER
Deputy Solicitor General
GARSON S. FISCHER
Assistant Attorney General
KWAME RAOUL
Illinois Attorney General
100 West Randolph Street
Chicago, Illinois 60601
(312) 814-5376
jnotz@atg.state.il.us
* Counsel of Record
(Additional Counsel on Signature Pages)
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTERESTS OF AMICI CURIAE ............................. 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT ............................................................... 4
I.
The Totality Of The Circumstances Test For
In-Home Warrantless Arrests Of Suspected
Misdemeanants Advances The States’
Interest In Safe Policing. ................................. 4
A. States have a reduced interest in effectuating
immediate arrests for misdemeanors. ............. 5
B. Warrantless entry into a private home in
pursuit of a suspected misdemeanant may
create unreasonable risk to officers and
others absent additional exigent
circumstances. ................................................ 10
II.
The Totality Of The Circumstances Test
For Exigency Sufficiently Secures The
States’ Law Enforcement And Public
Safety Interests. ............................................. 15
A. A totality of the circumstances approach to
exigency is sufficient to secure the States’
interests. ......................................................... 16
B. A totality of the circumstances approach is
no harder for police in the field to apply
than the hot pursuit doctrine. ....................... 20
ii
III.
Requiring That The Totality Of The
Circumstances Demonstrate Exigency
Prior To Entering A Home To Arrest A
Suspected Misdemeanant Advances The
States’ Interest In Their Residents’
Privacy Rights. ............................................... 24
CONCLUSION.......................................................... 29
iii
TABLE OF AUTHORITIES
Page(s)
Cases:
Arizona v. Gant, 556 U.S. 332 (2009) ....................... 24
Bartnicki v. Vopper, 532 U.S. 514 (2001) ................. 24
Beckwith v. Philby, 6 Barn. & Cress. 635,
108 Eng. Rep. 585 (K.B. 1827) .............................. 7
Brigham City, Utah v. Stewart,
547 U.S. 398 (2006) ....................................... 17, 18
California v. Acevedo, 500 U.S. 565 (1991) .............. 20
Carey v. Brown, 447 U.S. 455 (1980) ....................... 27
Carroll v. United States, 267 U.S. 132 (1925)............ 6
Cohen v. California, 403 U.S. 15 (1971)................... 27
Commonwealth v. Jewett,
31 N.E. 3d 1079 (Mass. 2015) ............................. 23
Commonwealth v. Martin,
81 N.E.3d 350 (Mass. App. Ct. 2017) ............ 22, 23
Curtis v. Thompson,
840 F.2d 1291 (7th Cir. 1988) ............................. 27
Frisby v. Schultz, 487 U.S. 474 (1988) ..................... 28
Georgia v. Randolph, 547 U.S. 103 (2006) ............... 18
Grayned v. City of Rockford, 408 U.S. 104 (1972) ... 24
Healy v. James, 408 U.S. 169 (1972) ........................ 25
Illinois v. McArthur, 531 U.S. 326 (2001) .................. 3
In re Larsen, 655 A.2d 239 (Pa. 1994) ........................ 7
iv
Kearney v. Solomon Smith Barney, Inc.,
137 P.3d 914 (Cal. 2006) ..................................... 26
Kentucky v. King, 563 U.S. 452 (2011) ................... 2, 5
McDonald v. United States, 335 U.S. 451 (1948) ...... 6
Michigan v. Fisher, 558 U.S. 45 (2009) .................... 17
Miller v. Clark Cnty.,
340 F.3d 959 (9th Cir. 2003) .................................. 8
Mincey v. Arizona, 437 U.S. 385 (1978) ................... 16
Minnesota v. Olson, 495 U.S. 91 (1990) ............. 18, 21
New York v. Belton, 453 U.S. 454 (1981) ................. 20
Norris v. State, 993 S.W.2d 918 (Ark. 1999) ............ 16
Payton v. New York, 445 U.S. 573 (1980) .............. 2, 6
People v. Khan,
483 N.E.2d 1030 (Ill. App. Ct. 1985) ..................... 8
People v. Smock,
100 N.E.3d 208 (Ill. App. Ct. 2018) ..................... 22
People v. Wear, 893 N.E.2d 631 (Ill. 2008) ............... 19
Petrillo v. Syntex Laboratories, Inc.,
499 N.E.2d 952 (Ill. App. Ct. 1986) ..................... 26
Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ... 25
Riley v. California, 573 U.S. 373 (2014)..................... 5
Rowan v. United States Post Office Dep’t,
397 U.S. 728 (1970) ............................................. 26
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ..... 4
Samuel v. Payne, 99 Eng. Rep. 230 (K.B. 1780) ........ 7
v
Schmerber v. California, 384 U.S. 757 (1966) ......... 18
Shuttlesworth v. City of Birmingham,
394 U.S. 147 (1969) ............................................. 25
Sosnowski v. State,
245 So. 3d 885 (Fla. Dist. Ct. App. 2018) ..... 16, 17
State v. Bolte, 560 A.2d 644 (N.J. 1989)................... 16
State v. Brown, 902 S.W.2d 278 (Mo. 1995) ............... 7
State v. Ferguson, 767 N.W.2d 187 (Wis. 2009)....... 23
State v. Gibbs,
730 N.E.2d 1027 (Ohio Ct. App. 1999)................ 26
State v. Hollis,
750 S.W.2d 674 (Mo. Ct. App. 1985) ..................... 8
State v. Keaton, 371 So. 2d 86 (Fla. 1979) ............... 27
State v. Markus, 211 So.3d 894 (Fla. 2017) ....... 16, 17
State v. Walker, 62 A.3d 897 (N.J. 2013) ........... 16, 18
Stutte v. State,
432 S.W.3d 661 (Ark. Ct. App. 2014) .................. 16
Tennessee v. Garner, 471 U.S. 1 (1985) ...................... 6
Terry v. Ohio, 392 U.S. 1 (1968) ................................. 4
United States v. Johnson,
256 F.3d 895 (9th Cir. 2001) ............................... 21
United States v. Lindsay,
506 F.2d 166 (D.C. Cir. 1974) ............................. 22
United States v. Santana, 427 U.S. 38 (1976) ..... 2, 21
United States v. United States District Court,
407 U.S. 297 (1972) ............................................. 27
vi
United States v. Watson, 423 U.S. 411 (1976) ....... 6, 7
Waugh v. State, 51 S.W.3d 714 (Tex. App. 2001) .... 14
Welsh v. Wisconsin, 466 U.S. 740 (1984) ....... 5, 21, 22
West Virginia Citizens Action Group v. Daley,
174 W. Va. 299 (W. Va. 1984) ............................. 27
Constitutional Provisions:
Ala. Const. art. I, § 8 ................................................... 8
Ark. Const. art. III, § 2 ............................................... 9
R.I. Const. art. I, § 7 ................................................... 8
Va. Const. art. II, § 1 .................................................. 9
Statutes and Rules:
28 U.S.C. § 1865 .......................................................... 9
720 ILCS 5/19-1 .......................................................... 9
725 ILCS 5/109-3.1 ..................................................... 8
725 ILCS 5/111-2 ........................................................ 8
Ala. Code § 13A-11-181............................................. 10
Ala. Code § 15-11-1 ..................................................... 8
Ala. Code § 15-16-21 ................................................... 8
Alaska Stat. § 09.20.020 ............................................. 9
Alaska Stat. § 25.24.050 ............................................. 9
Ariz. Rev. Stat. Ann. § 13-904 .................................. 10
Ariz. Rev. Stat. Ann. § 16-101 .................................... 9
Ariz. Rev. Stat. Ann. § 21-201 .................................... 9
Conn. Gen. Stat. Ann. § 54-86 .................................... 8
vii
Fed. R. Crim. P. 5........................................................ 8
Fla. Stat. Ann. § 775.13 ............................................ 10
Fla. Stat. Ann. § 790.23 .............................................. 9
Idaho Code § 32-603.................................................... 9
Kan. Stat. Ann. § 21-4615 .................................... 9, 10
Md. Cts. & Jud. Proc. Code Ann. § 4-304................... 8
Mo. Rev. Stat. § 561.021 ........................................... 10
Mo. Rev. Stat. § 561.026 ........................................... 10
Mo. Sup. Ct. R. 27 ....................................................... 8
N.D. Cent. Code § 14-05-03 ........................................ 9
Neb. Rev. Stat. § 29-2001 ........................................... 8
Nev. Rev. Stat. § 175.141............................................ 9
Nev. Rev. Stat. § 202.360............................................ 9
N.Y. Jud. Law § 90...................................................... 9
Ohio Bar R. 5 § 18 ....................................................... 9
Or. Rev. Stat. § 135.07 ................................................ 8
S.D. Codified Laws Ann. § 25-4-2............................... 9
Tex. Fam. Code Ann. § 6.0004 .................................... 9
Utah Code § 76-4-203 ................................................. 9
Utah Code § 78-46-7 ................................................. 10
Va. Code Ann. § 20-91 ................................................ 9
Treatises:
W. Blackstone, Commentaries ................................... 7
viii
M. Hale, Pleas of the Crown ....................................... 7
Halsbury’s Laws of England (3d ed. 1955) ................ 7
W. Hawkins, A Treatise of the Pleas to the Crown
(8th ed. 1824) ......................................................... 6
Wayne R. Lafave & Austin H. Scott,
Criminal Law ..................................................... 7, 9
J. Stephen, A History of the Criminal Law of
England (1883) ...................................................... 7
Secondary Sources:
Austin Police Department General Orders ....... 13, 14
Black’s Law Dictionary (7th ed. 1990) ....................... 7
Shannon Bohrer, Edward F. Davis, & Thomas J.
Garrity, Establishing a Foot Pursuit Policy, FBI
Law Enforcement Bull. (May 2000) .................... 13
Judith Wagner DeCew, In Pursuit of Privacy: Law,
Ethics, and the Rise of Technology (1997).......... 25
David A. Harris, The Stories, the Statistics, and
the Law: Why “Driving While Black” Matters,
84 Minn. L. Rev. 265 (1999) ................................ 28
Houston Police Department General Order ............ 12
Robert J. Kaminsky, A Descriptive Analysis of Foot
Pursuits in the Los Angeles County Sheriff’s
Department (Jun. 18, 2010) ................................ 11
Robert J. Kaminsky, Police Foot Pursuits and Officer
Safety, Law Enforcement Executive Forum
(Mar. 2007) .......................................................... 12
Tracey Maclin, Race and the Fourth Amendment,
51 Vand. L. Rev. 333 (1998) ................................ 28
ix
Max Minzer, Putting Probability Back Into
Probable Cause, Benjamin N. Cardozo School
of Law Jacob Burns Institute for Advanced
Legal Studies, Working Paper No. 240
(July 2008) ........................................................... 20
Portland Police Bureau Dir. 630.15 ......................... 13
Alexander Reinert, Public Interest(s) and
Fourth Amendment Enforcements,
2010 U. Ill. L. Rev. 1461 (2010) .................... 26, 28
William A. Schroeder, Warrantless Misdemeanor
Arrests and The Fourth Amendment,
58 Mo. L. Rev. 771 (1993) ...................................... 6
Joseph William Singer, Entitlement: The
Paradoxes of Property 11 (2000) ......................... 26
Scott E. Sundby, “Everyman”’s Fourth Amendment:
Privacy or Mutual Trust Between Government
and Citizen?, 94 Colum. L. Rev. 1751 (1994) ..... 28
Andrew E. Taslitz, Stories of Fourth Amendment
Disrespect: From Elian to the Internment,
70 Fordham L. Rev. 2257 (2002) ......................... 26
U.S. Dept. of Justice, Investigation of the Baltimore
City Police Department (Aug. 10, 2016) .............. 14
U.S. Dept. of Justice, Investigation of the Chicago
Police Department (Jan. 13, 2017) ...................... 11
Horace L. Wilgus, Arrest Without a Warrant,
22 Mich. L. Rev. 541 (1924)................................... 7
INTERESTS OF AMICI CURIAE
The States of Illinois, Iowa, Maryland, Michigan,
Nevada, Oregon, Virginia, and the District of Columbia (collectively, the “amici States”) submit this brief
in support of petitioner and urge reversal of the California Court of Appeal, which extended the “hot pursuit” doctrine to suspected misdemeanants. Under
this doctrine, police have authority to enter a private
home to complete an immediate, warrantless arrest of
a suspect, even in the absence of other exigencies, so
long as the immediate, continuous pursuit of the suspect began in public.
The amici States have an interest in the enforcement of their laws, which includes promoting the
safety of law enforcement officers and others during
the apprehension of suspects. The lower court’s decision extending the hot pursuit doctrine to suspected
misdemeanants interferes with that interest. A totality of the circumstances test for exigency, by contrast,
has proven sufficient to serve this and other components of the States’ law enforcement interest, including ensuring the preservation of evidence and protecting public safety. In fact, this rule is being implemented by police departments across the country.
In addition, adopting a totality of the circumstances
test would cultivate a greater sense of personal privacy and security among the amici States’ residents.
This, in turn, serves the States’ interests by fostering
trust between the States and their residents and encouraging participation in civic activities, including
sitting on juries and cooperating with law enforcement, that benefit the States.
2
SUMMARY OF ARGUMENT
The Fourth Amendment provides that the “right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend.
IV. Because “physical entry of the home is the chief
evil against which the wording of the Fourth Amendment is directed,” it is generally unreasonable for police to enter a person’s home without a warrant. Payton v. New York, 445 U.S. 573, 576, 585 (1980).
Nevertheless, there are times when the States’ interests require that an exception be made.
A
longstanding exception to the warrant requirement
applies in “exigent circumstances,” such as the immediate need to preserve evidence or where a suspect
poses an immediate risk of danger to himself or others. Kentucky v. King, 563 U.S. 452, 460 (2011). This
Court has also recognized a categorical rule that the
“hot pursuit of a fleeing suspect” to a felony is necessarily an exigent circumstance that justifies the warrantless entry into a private home. United States v.
Santana, 427 U.S. 38, 42-43 (1976). The lower court
here extended the categorical hot pursuit rule to suspected misdemeanants on the theory that the nature
of the offense “is of no significance in determining the
validity of the entry without a warrant.” Pet. App.
20a.
This extension of the hot pursuit doctrine is inconsistent with this Court’s precedents, for the reasons
petitioner and California explain. The amici States
agree and write separately to explain that the extension also is inconsistent with the States’ law enforcement interests, which, together with privacy concerns,
3
guide the exigent circumstances analysis. See Illinois
v. McArthur, 531 U.S. 326, 331 (2001). Instead, application of a totality of the circumstances test for exigency to warrantless arrests of suspected misdemeanants best serves the States’ interest in safe enforcement of their laws. Experience teaches that foot pursuits into homes can endanger the safety of officers
and others. Moreover, States have a reduced interest
in securing the immediate arrest of suspected misdemeanants as compared with suspected felons.
The totality of the circumstances approach also is
administrable in the field. In States and localities
that have adopted this standard, the test allows officers to act without waiting for a warrant when necessary to protect themselves and the public, or to preserve evidence. In this way and others, the test has
proven workable for officers to apply. Additionally,
empirical data shows officers are more effective when
they slow down the decision-making process and obtain a warrant if possible, than when they act in the
heat of pursuit.
Finally, the totality of the circumstances test is
preferable in the misdemeanor context because it better secures state residents’ privacy interests. The hot
pursuit doctrine enables incursions of personal privacy which, in turn, reduces the willingness of residents to participate in civic activities that benefit the
State, like serving on juries and testifying as a witness
to a crime. For these reasons, this Court should reverse the lower court’s decision extending the hot pursuit doctrine to misdemeanors.
4
ARGUMENT
I.
The Totality Of The Circumstances Test
For In-Home Warrantless Arrests Of Suspected Misdemeanants Advances The
States’ Interest In Safe Policing.
The States have a significant interest in enforcing
their criminal laws. See Terry v. Ohio, 392 U.S. 1, 22
(1968) (recognizing state interest in “effective crime
prevention and detection”). This interest encompasses the States’ concurrent interest in the safety of
their residents and officers of the peace. See, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 485 (1995)
(recognizing States’ “interest in protecting the health,
safety, and welfare of its citizens”). In the amici
States’ experience, when it comes to suspected misdemeanors, the totality of the circumstances test for exigency serves both of these interests more effectively
than the hot pursuit exception employed by the lower
court for at least two reasons.
First, States have a lesser interest in the immediate arrest of many suspected misdemeanants than for
suspected felons. Common law and contemporary
state statutes both recognize this distinction between
felonies and misdemeanors, and this Court’s Fourth
Amendment jurisprudence has often taken that reduced interest into account. Second, officers may be
less safe and less effective when they are allowed to
pursue suspects into private homes without slowing
down to evaluate the totality of the circumstances,
and whenever possible obtain a warrant.
5
A. States have a reduced interest in effectuating immediate arrests for misdemeanors.
This Court has long held that warrantless arrests
in the home are presumptively unreasonable, subject
to certain exceptions. See King, 563 U.S. at 459. Such
exceptions typically depend on the State’s interest in
effectuating an immediate search and seizure, balanced against the individual privacy interests at
stake. Compare Riley v. California, 573 U.S. 373, 391
(2014) (“The search incident to arrest exception rests
not only on the heightened government interests at
stake in a volatile arrest situation, but also on an arrestee’s reduced privacy interests upon being taken
into police custody.”), with Welsh v. Wisconsin, 466
U.S. 740, 750 (1984) (holding that when government’s
interest is only to arrest for minor offense, it is difficult to overcome presumption of unreasonableness of
warrantless invasion of “the sanctity of the home”).
And in the case of suspected misdemeanants, the
State often has a reduced interest in effectuating an
immediate arrest.
Indeed, the Court has recognized that the States’
interest in enforcing the law is diminished relative to
countervailing interests where the offense is of a less
serious nature. See Welsh, 466 U.S. at 750 (noting
that the Court’s “hesitation in finding exigent circumstances, especially when warrantless arrests in the
home are at issue, is particularly appropriate when
the underlying offense for which there is probable
cause to arrest is relatively minor”). In a 1948 concurrence, for instance, Justice Robert Jackson explained
that the reasonableness of a warrantless search “certainly depends somewhat upon the gravity of the offense thought to be in progress as well as the hazards
6
of the method of attempting to reach it.” McDonald v.
United States, 335 U.S. 451, 459-460 (1948) (Jackson,
J. concurring).
Put differently, the level of punishment associated
with a crime reflects society’s interest in preventing
the crime, and by defining an offense as a misdemeanor, the legislature makes an implicit statement
that the governmental interest in arresting and convicting people of that offense is reduced. 1 In fact, the
distinction between misdemeanors and felonies has
deep roots in the common law, where it extended to
the context of searches and seizures. See, e.g., United
States v. Watson, 423 U.S. 411, 418-420 (1976) (discussing common law distinction); Tennessee v. Garner,
471 U.S. 1, 11-15 (1985) (same); Payton, 445 U.S. at
606-07. 2
For example, this Court explained nearly a century
ago that “the usual rule is that a police officer may
arrest without warrant one believed by the officer
upon reasonable cause to have been guilty of a felony.”
Carroll v. United States, 267 U.S. 132, 156 (1925).
This reflected the common-law rule that a peace officer was permitted to arrest without a warrant for a
felony whether or not it was committed in his presence
if there was reasonable ground for making the arrest,
but was only permitted to arrest without a warrant for
a misdemeanor if the misdemeanor was committed in
William A. Schroeder, Warrantless Misdemeanor Arrests and
The Fourth Amendment, 58 Mo. L. Rev. 771, 804 (1993).
1
2 See also 2 W. Hawkins, A Treatise of the Pleas to the Crown,
ch. 14 § 1 at 136 (8th ed. 1824) (suggesting that the hot pursuit
doctrine was limited to felons or other serious offenders).
7
his presence. Watson, 423 U.S. at 418. 3 In this way,
the common law balanced the reduced “public need for
the most certain and immediate arrest of criminal suspects” in the case of misdemeanors “with the requirement of magisterial oversight to protect against mistaken insults to privacy.” Id. at 441-442 (Marshall, J.,
dissenting).
In contemporary times, as well, the felony/misdemeanor distinction is “(t)he most important classification of crimes in general use in the United States.” 4 It
reflects a recognition by the States that those crimes
labeled “felonies” are more serious offenses than those
designated “misdemeanors.” See, e.g., State v. Brown,
902 S.W.2d 278, 294 (Mo. 1995) (“By definition a felony is a ‘crime of a . . . more serious nature than those
designated misdemeanors.’”) (quoting Black’s Law
Dictionary 617 (7th ed. 1990)); In re Larsen, 655 A.2d
239, 247 (Pa. 1994) (“As noted, the crime has been
classified by the General Assembly as a felony, which
by its very definition denotes a crime of a serious nature.”). In other words, “[t]he government has an undeniable legitimate interest in apprehending criminal
suspects, and that interest is even stronger when the
Citing 10 Halsbury’s Laws of England 344-345 (3d ed. 1955); 4
W. Blackstone, Commentaries at 292; 1 J. Stephen, A History of
the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the
Crown at 72-74; Horace L. Wilgus, Arrest Without a Warrant, 22
Mich. L. Rev. 541, 547-550, 686-688 (1924); Samuel v. Payne, 1
Doug. 359, 99 Eng. Rep. 230 (K.B. 1780); Beckwith v. Philby, 6
Barn. & Cress. 635, 108 Eng. Rep. 585 (K.B. 1827).
3
4
Wayne R. Lafave & Austin H. Scott, Criminal Law § 1.6(a).
8
criminal is . . . suspected of a felony, which is by definition a crime deemed serious by the state.” Miller v.
Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003).
This recognition carries through to many areas of
criminal procedure. 5 It can affect pretrial procedures
such as discovery, see, e.g., People v. Khan, 483 N.E.2d
1030, 1035 (Ill. App. Ct. 1985) (“Illinois Supreme
Court rules regarding discovery are not applicable in
misdemeanor cases.”) 6, indictments, see, e.g., State v.
Hollis, 750 S.W.2d 674, 675 (Mo. Ct. App. 1985) (the
same strictness in charging is not required for misdemeanors as for felonies) 7, and preliminary hearings 8,
as well as trial proceedings. 9
5 Ibid. (applicability of many rules of criminal procedure depends
upon whether the crime in question is a felony or a misdemeanor).
See also, e.g., Conn. Gen. Stat. Ann. § 54-86 (depositions of witnesses permissible only in felony cases).
6
See also, e.g., Ala. Const. art. I, § 8 (grand jury unnecessary in
misdemeanor cases); R.I. Const. art. I, § 7 (indictment or information required for all felony prosecutions); 725 ILCS 5/111-2
(“(a) All prosecution of felonies shall be by information or by indictment . . . (b) All other prosecutions may be by indictment,
information or complaint.”).
7
See, e.g., Fed. R. Crim. P. 58(b)(2) (mandating special rules for
the initial appearance in misdemeanor cases); Ala. Code § 15-111; 725 ILCS 5/109-3.1 (mandating special procedures for preliminary hearings in felony cases); Md. Cts. & Jud. Proc. Code Ann.
§ 4-304; Or. Rev. Stat. § 135.070 (if defendant charged with felony, magistrate must read the information and inform defendant
of his rights before the preliminary hearing).
8
See, e.g., Ala. Code § 15-16-21; Mo. Sup. Ct. R. 27 (mandating
different trial procedures for misdemeanors and felonies); Neb.
Rev. Stat. § 29-2001 (misdemeanant, but not felon, may be tried
9
9
Moreover, felonies carry more serious consequences, beyond simply longer terms of incarceration.
For example, certain acts may be criminal only if engaged in by convicted felons, 10 or if done in furtherance of the commission of a felony. 11 Beyond direct
criminal consequences, some States have recognized
felony convictions as a ground for divorce, 12 disbarment and the loss of other professional licenses, 13 and
loss of eligibility to vote, 14 serve on juries, 15 or hold
in absentia); Nev. Rev. Stat. § 175.141 (if indictment or information for felony, clerk must read it and state defendant’s plea
to the jury).
10 See, e.g., Fla. Stat. Ann. § 790.23 (unlawful for convicted felons
to possess a firearm); Nev. Rev. Stat. § 202.360 (same).
See, e.g., 720 ILCS 5/19-1(a) (“A person commits burglary
when without authority he knowingly enters . . . a building . . .
with intent to commit therein a felony or theft.”); Utah Code § 764-203 (crime to solicit a person to commit an act which is a felony); see also LaFave & Scott, supra note 4, § 14.5 (discussing
the felony-murder doctrine).
11
See, e.g., Alaska Stat. § 25.24.050; Idaho Code § 32-603; N.D.
Cent. Code § 14-05-03; S.D. Codified Laws Ann. § 25-4-2; Tex.
Fam. Code Ann. § 6.0004; Va. Code Ann. § 20-91.
12
See, e.g., N.Y. Jud. Law § 90(4)(a) (“Any. . . attorney who shall
be convicted of a felony . . . shall upon such conviction, cease to
be an attorney . . . .”); Ohio Bar R. 5 § 18(A)(1) (any judicial officer
or attorney convicted of a felony may be suspended).
13
14 See, e.g., Ark. Const. art. III, § 2 (no person shall be deprived
of the right to vote “except for the commission of a felony at common law”); Va. Const. art. II, § 1; Ariz. Rev. Stat. Ann. § 16-101;
Kan. Stat. Ann. § 21-4615.
See, e.g., 28 U.S.C. § 1865(b)(5) (person with pending felony
charge or felony conviction in state or federal court ineligible to
serve on a jury.); Alaska Stat. § 09.20.020; Ariz. Rev. Stat. Ann.
15
10
public office. 16 Some States require convicted felons
to register their presence in the State. 17
In these and other ways, the distinction between
misdemeanors and felonies has been recognized for
hundreds of years. The States’ reduced interest in the
immediate arrest of suspected misdemeanants should
continue to be reflected in a rule that requires a warrant to enter a home to make misdemeanor arrests in
the absence of additional exigent circumstances.
B. Warrantless entry into a private home in
pursuit of a suspected misdemeanant may
create unreasonable risk to officers and
others absent additional exigent circumstances.
In addition to the States’ reduced interest in effectuating immediate arrests of misdemeanants, the
States’ interest in enforcing laws in a way that protects the safety of officers and others is also relevant.
And that interest is best served by requiring a warrant to effectuate an in-home arrest of a suspected
misdemeanant, except in situations where the totality
of the circumstances demonstrates exigency requiring
immediate action.
§ 21-201; Kan. Stat. Ann. § 21-4615; Mo. Rev. Stat. § 561.026(3);
Utah Code § 78-46-7.
See, e.g., Ariz. Rev. Stat. Ann. § 13-904; Kan. Stat. Ann. § 214615; Mo. Rev. Stat. § 561.021(1), (2).
16
17 See, e.g., Fla. Stat. Ann. § 775.13; see also Ala. Code § 13A-11181 (person convicted of felonies more than twice must register
with sheriff in county of residence).
11
While “foot pursuits are a necessary and sometimes
important part of good policing,” they can be “dangerous and present substantial risks to officers and the
public.” 18 Among other reasons, foot pursuits can be
dangerous because officers “may experience fatigue or
an adrenaline rush that compromises their ability to
control a suspect they capture, to fire their weapons
accurately, and even to make sound judgments.” 19
Warrant procedures, by contrast, can protect officers
and others by ensuring that officers engage in considered reflection before entering a home.
According to one study, for example, nearly one in
five foot pursuits conducted by officers in the Los Angeles County Sheriff’s Department resulted in officer
injuries. 20 The study also found that a suspect assaulted a deputy in more than two out of five foot pursuits, while approximately three in five foot pursuits
resulted in injuries to a suspect. 21 At the same time,
approximately one in six foot pursuits resulted in misdemeanor charges only. 22 Similarly, a study of the
Richland County, South Carolina Sheriff’s Department found that one third of deputies reported being
U.S. Dept. of Justice. Investigation of the Chicago Police Department, at 26 (Jan. 13, 2017), https://tinyurl.com/zks457t.
18
19
Ibid.
20 Robert J. Kaminsky, A Descriptive Analysis of Foot Pursuits
in the Los Angeles County Sheriff’s Department (Jun. 18, 2010),
at 4, https://tinyurl.com/y4qnask9.
21
Ibid.
22
Id. at 5.
12
injured intentionally by a suspect during a foot pursuit. 23 And these injuries compromised their ability
to return to work: in total, 16 deputies missed 273
days of work due to intentional injuries, and 20 deputies missed 496 days of work due to accidental injuries
suffered during foot pursuits. 24 Dozens more deputies
spent hundreds of days working at reduced capacity,
as well. 25
Unsurprisingly, therefore, to advance their interest
in keeping officers safe and on the job, police departments around the country ask officers to evaluate the
totality of the circumstances before making a warrantless entry into a home. For example, the Houston
Police Department instructs officers to abandon foot
pursuit “[i]f the suspect’s identity is established or
other information exists that allows for the suspect’s
probable apprehension at a later time and there is no
immediate threat to the public or police officers.” 26
The policy further directs officers to “balance the possibility of losing evidence of a crime (e.g., narcotics,
weapon used in a crime) with the safety of later apprehension.” 27 In other words, Houston police officers are
Robert J. Kaminsky, Police Foot Pursuits and Officer Safety,
Law Enforcement Executive Forum, at 65 (Mar. 2007), https://tinyurl.com/yxnjmc84.
23
24
Id. at 67-68.
25
Ibid.
Houston Police Department General Order 600-611, https://tinyurl.com/y3ttzdj9.
26
27
Ibid.
13
asked to make a totality of the circumstances determination about any ongoing pursuit, including ones that
continue into a home.
In another example, the Collingswood, New Jersey
police department established a foot pursuit policy
that prohibited pursuit into buildings absent exigent
circumstances, such as a threat to the safety of the
general public, and in the first two years under the
new policy, the department experienced fewer injuries
to officers. 28 Similarly, the Portland Police Bureau directive on foot pursuits describes them as “inherently
dangerous,” and directs that no member of the Portland police “shall be criticized for deciding against initiating, discontinuing his/her involvement in or terminating a foot pursuit.” 29 Moreover, officers are instructed not to continue pursuits into buildings absent
“extreme circumstances.” 30
In some cases, departments have rejected the categorical hot pursuit approach to warrantless home entries for the apprehension of suspected misdemeanants even where their state courts have approved of it.
For instance, Austin Police Department General Order 319.3.2 provides that “[o]fficers shall not forcibly
enter a private home to arrest a person for a misdemeanor violation,” including “officers in hot pursuit of
28 Shannon Bohrer, Edward F. Davis, & Thomas J. Garrity, Establishing a Foot Pursuit Policy, FBI Law Enforcement Bull., at
13 (May 2000).
Portland Police Bureau Dir. 630.15, https://tinyurl.com/
y6zme7d8.
29
30
Ibid.
14
a subject.” 31 Texas courts, however, have applied the
hot pursuit doctrine to misdemeanors. See, e.g.,
Waugh v. State, 51 S.W.3d 714, 718 n.3 (Tex. App.
2001) (collecting cases).
The benefits of a totality of the circumstances test
for exigency in the misdemeanor context are further
demonstrated by recent analyses conducted by the
United States Department of Justice (DOJ) and the
International Association of Chiefs of Police. DOJ’s
2016 investigation of the Baltimore City Police Department, for example, assessed a 2014 incident during which an officer on patrol started to respond to a
call, when he saw an unknown man “observe [his]
marked uniform presence and flee on foot.” 32 The officer abandoned the call for service and instead pursued this individual on foot into his home. 33 According
to DOJ, even if the officer’s warrantless entry could be
justified under the hot pursuit doctrine, his actions
were “unsafe” and he had “endangered himself, the individual he pursued, and a homeowner, and damaged
a homeowner’s property.” 34
The solution, according to DOJ, is to engage in considered reflection about a situation before committing
to a foot pursuit: “When officers decide to pursue a
suspect, even though they must decide quickly
whether to pursue, they should assess the seriousness
Austin Police Department General Orders, https://tinyurl.
com/y5lessf9.
31
32 U.S. Dept. of Justice. Investigation of the Baltimore City Police
Department, at 94 (Aug. 10, 2016), https://tinyurl.com/y3cofpgq.
33
Ibid.
34
Id. at 95.
15
of the suspected violation at issue, the dangerousness
of the pursuit under the circumstances, whether the
person they intend to pursue poses an immediate and
serious threat or could be apprehended later or
through other means.” 35 DOJ drew on the experiences
of the International Association of Chiefs of Police,
which similarly recommends that “[b]ecause of the inherent and demonstrated dangers involved in foot
pursuits, it should be a matter of agency policy that
officers should not be criticized or sanctioned for making a rational and professionally informed decision not
to engage in or to terminate a foot pursuit.” 36
In sum, because applying the hot pursuit doctrine
to misdemeanors has the effect of authorizing officers
to pursue suspects into a home without regard for the
seriousness of the offense or other relevant circumstances, it runs counter to the States’ interest in safe
policing. The totality of the circumstances test for exigency, by contrast, reflects the States’ reduced interest in the immediate arrest of many suspected misdemeanants and the importance of safe policing.
II.
The Totality Of The Circumstances Test
For Exigency Sufficiently Secures The
States’ Law Enforcement And Public
Safety Interests.
As discussed, the totality of the circumstances test
for exigency recognizes that in many cases, concerns
about officer and public safety make it unreasonable
to perform a warrantless in-home arrest of a suspected misdemeanant. But where immediate action
35
Id. at 93.
36
Id. at 94.
16
without the delay of obtaining a warrant is needed,
the totality of the circumstances test has proven flexible enough to secure the States’ interests. This is so
because the general exigent circumstances test permits police officers to make a warrantless entry to effect an arrest when necessary to protect the public or
preserve evidence. See Mincey v. Arizona, 437 U.S.
385, 394 (1978) (sometimes, “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment”) (internal quotations omitted). And this test has proven workable for
officers and courts to apply.
A. A totality of the circumstances approach to
exigency is sufficient to secure the States’
interests.
Courts in at least three States—Arkansas, Florida,
and New Jersey—have rejected the categorical hot
pursuit doctrine for misdemeanors. See State v.
Markus, 211 So.3d 894, 901 (Fla. 2017); Norris v.
State, 993 S.W.2d 918, 923 (Ark. 1999); State v. Bolte,
560 A.2d 644, 654 (N.J. 1989). Nevertheless, the
usual totality of the circumstances test applies in
these States to allow officers to complete warrantless
in-home arrests when justified by the presence of exigent circumstances. See, e.g., Sosnowski v. State, 245
So. 3d 885, 888 (Fla. Dist. Ct. App. 2018); Stutte v.
State, 432 S.W.3d 661, 663-64 (Ark. Ct. App. 2014);
State v. Walker, 62 A.3d 897, 907 (N.J. 2013).
Although there is no comprehensive list of what
constitutes exigent circumstances, one established example of an exigency that justifies a warrantless entry
into a home under the totality of the circumstances
17
test is the “emergency aid” exception. This exception
applies to allow officers “to render emergency assistance to an injured occupant or to protect an occupant
from imminent injury.” Brigham City, Utah v. Stewart, 547 U.S. 398, 403 (2006); see also, e.g., Michigan
v. Fisher, 558 U.S. 45, 49 (2009) (upholding warrantless home entry based on emergency aid exception).
Applying this exception, courts in the States that have
rejected the hot pursuit doctrine for non-felonies have
still found that warrantless entries into the home
were permissible when necessary to protect someone
from harm under the totality of the circumstances
test.
For example, a Florida court upheld the warrantless arrest of Thomas Sosnowski on misdemeanor
charges as he fled into his home. Sosnowski, 245 So.
3d at 887, 890. On the evening of his arrest, Sosnowski’s wife called the authorities because she feared
for her safety and that of their young son. Id. at 886.
When officials arrived, Sosnowski’s wife appeared to
be terrified and had fresh bruises on her face, chest,
and neck. Ibid. After Sosnowski refused police orders
and retreated towards his house, the officers climbed
the fence to his backyard to apprehend him. Ibid. In
upholding the arrest, the court explained that “while
the evidence of [his wife’s] abuse provided the officers
sufficient probable cause to arrest Sosnowski without
a warrant, the evidence of abuse alone is not enough
to support a warrantless entry into his backyard.” Id.
at 888 (emphasis omitted) (citing Markus, 211 So.3d
at 909 (“Florida courts have [ ] found probable cause
for minor offenses insufficient to justify warrantless
home searches and arrests.”)). But, the court also
held, “[i]mmediate entry into Sosnowski’s backyard
18
and home was necessary for the officers to ensure the
safety of a five-year-old child,” and “[p]ublic safety has
long been recognized as an exigent circumstance permitting warrantless entry into a residence.” Ibid. In
other words, the totality of the circumstances test for
exigency was enough to secure the State’s interest in
public safety, even where the categorical hot pursuit
doctrine was unavailable. See also, e.g., State v. Reece,
117 A.3d 1235, 1245 (N.J. 2015) (exigent circumstances existed under emergency-aid exception to justify warrantless in-home arrest for suspected misdemeanors where officers were responding to dropped 91-1 call).
The need “to prevent the imminent destruction of
evidence” has also been recognized as sufficient to justify a warrantless entry into a home. Brigham City,
547 U.S. at 403; see also Georgia v. Randolph, 547
U.S. 103, 116, n.6 (2006); Minnesota v. Olson, 495 U.S.
91, 100 (1990). This exception covers not only the destruction but also the dissipation of evidence, such as
blood alcohol content, over time. See Schmerber v.
California, 384 U.S. 757, 770-771 (1966) (warrantless
testing for blood-alcohol content was justified based
on potential dissipation of evidence).
In jurisdictions where the hot pursuit doctrine has
not been extended to suspected misdemeanants, the
destruction of evidence exception allows officers to act
without waiting for a warrant as needed to preserve
evidence. In Walker, for example, Newark Police received a tip from a confidential source about a person
selling drugs from an apartment. 62 A.3d at 900.
Plain-clothed officers went to the suspect’s apartment
to try to buy drugs from him. Ibid. When they
19
knocked, a person later identified as the suspect answered while smoking a marijuana cigarette. Ibid.
The suspect saw the officer’s badge, threw the marijuana cigarette into his apartment, and attempted to
slam the door. Ibid. Police stopped the door from closing, followed the suspect into his apartment, and arrested him. Ibid. The New Jersey Supreme Court
held that the arrest complied with the Fourth Amendment because the officers had probable cause to arrest
for a misdemeanor disorderly persons offense, id. at
903, and entered the apartment to prevent the destruction of evidence, id. at 907.
Indeed, even in States like Illinois that have applied the hot pursuit doctrine to misdemeanors, it is
apparent that a categorical exception to the warrant
requirement is unnecessary to ensure the State’s interest in enforcing misdemeanor offenses. In People v.
Wear, 893 N.E.2d 631 (Ill. 2008), a majority of the Illinois Supreme Court extended the hot pursuit doctrine to misdemeanors, id. at 646, while three justices
rejected the categorical approach, id. at 652 (Burke,
J., concurring). Those three justices agreed with the
outcome, however. They would have held that, even
though the hot pursuit doctrine should not be extended to misdemeanors, “under the totality of the circumstances, [the officer] acted reasonably” when entering the defendant’s home without a warrant to arrest him for the misdemeanor offense of driving under
the influence. Id. at 652-653.
Finally, not only does the totality of the circumstances test for exigency authorize officers to forego a
warrant where necessary to prevent the destruction of
evidence, data suggests police officers are more effective in recovering evidence when acting consistent
20
with that standard. For example, while the probable
cause analysis for obtaining a warrant and acting in
the field is the same, multiple studies have found that
warrants have an evidence recovery rate of greater
than 80%. 37 The evidence recovery rate when officers
search without a warrant is typically less than 50%. 38
In other words, the totality of the circumstances test
is not only consistent with the States’ law enforcement
interests, because it allows officers to enter a home
without a warrant where necessary to protect the public or preserve evidence, but it may make officers more
effective by discouraging them from rushing into situations when the totality of the circumstances does not
demand immediate action.
B. A totality of the circumstances approach is
no harder for police in the field to apply
than the hot pursuit doctrine.
This Court has noted the benefits associated with
bright line rules that clarify the duties of law enforcement and allow easier application. See, e.g., California v. Acevedo, 500 U.S. 565, 576-579 (1991) (finding
rule too confusing for police to apply); New York v. Belton, 453 U.S. 454 (1981) (“A single, familiar standard
is essential to guide police officers, who have only limited time and expertise to reflect on and balance the
social and individual interests involved in the specific
circumstances they confront.”) (internal quotations
Max Minzer, Putting Probability Back Into Probable Cause,
Benjamin N. Cardozo School of Law Jacob Burns Institute for
Advanced Legal Studies Working Paper No. 240, at 12-13 (July
2008), https://tinyurl.com/y3qtbads.
37
38
Id. at 13-14.
21
omitted). Here, though, the categorical hot pursuit
doctrine presents its own set of judgments for officers
to make. To be sure, the Court’s directives in Santana
have eliminated some of those determinations. See
Santana, 427 U.S. at 42-43. But, as courts have recognized, other judgment calls remain.
Although hot pursuit of a fleeing felony suspect can
be an exigent circumstance justifying a warrantless
arrest in one’s home, Olson, 495 U.S. at 100-101; see
also Santana, 427 U.S. at 42-43, not all such pursuits
justify a warrantless in-home arrest. In Welsh, this
Court instructed lower courts to weigh the “gravity of
the underlying offense” when determining the legality
of the entry. 466 U.S. at 753. And the Court also required that officers have engaged in an “immediate or
continuous pursuit” into a home in response to a crime
that occurred in a public place. Ibid. Answering these
questions requires officers in the field to make judgment calls in the same way that they must do when
determining whether a warrantless intrusion is reasonable based on the totality of the circumstances.
For starters, determining whether a pursuit is “immediate or continuous” requires an analysis of the
particular facts of a case. In United States v. Johnson,
256 F.3d 895 (9th Cir. 2001), for example, the court
held that pursuit of a suspected misdemeanant was
not “immediate or continuous,” and therefore the hot
pursuit doctrine did not apply, because the officers
who were chasing the suspect lost sight of him for 30
minutes prior to their warrantless entry into a private
yard. Id. at 898-899, 907. The court reasoned: “The
half-hour time period, during which the officers received no new information about where [the suspect]
had gone, turned the pursuit from lukewarm to ice
22
cold.” Id. at 907-908. Therefore, this case was not like
one “where the police officers always knew exactly
where the suspect was, but decided that it would be
dangerous for them to enter the property until reinforcements arrive.” Ibid. Under those circumstances,
the hot pursuit doctrine could apply. Ibid (citing
United States v. Lindsay, 506 F.2d 166, 173 (D.C. Cir.
1974)).
Illinois’s experience confirms this point. Since the
Illinois Supreme Court first extended the hot pursuit
doctrine to misdemeanors, the State’s officers have occasionally stumbled when determining whether they
were in hot pursuit of a suspect. For example, in People v. Smock, 100 N.E.3d 208 (Ill. App. Ct. 2018), officers arrived at the defendant’s trailer in response to a
noise complaint. Id. at 211. When the defendant
opened the door, one officer told him that he was under arrest and tried to grab him by the hand. Ibid.
The defendant fled back into his trailer, and the officers pursued and arrested him. Ibid. The appellate
court concluded that the arrest violated the Fourth
Amendment because the defendant only came into
public view when the officers knocked on his door and
encouraged him onto his porch. Id. at 217. The hot
pursuit doctrine, which requires that the pursuit
begin in a public place, thus did not apply. Ibid.
In States where courts have applied the hot pursuit doctrine to misdemeanors, officers must also determine whether an offense is sufficiently grave under
Welsh to justify hot pursuit. In Commonwealth v.
Martin, 81 N.E.3d 350 (Mass. App. Ct. 2017), for example, the court declined to apply the hot pursuit doctrine to the officers’ pursuit of the defendant, who fled
from police after he was spotted smoking marijuana;
23
the pursuit culminated in the officers’ warrantless entry into the defendant’s home, where a gun was recovered in his pocket. Id. at 353-354. Although Massachusetts has extended the hot pursuit doctrine to misdemeanors, Commonwealth v. Jewett, 31 N.E. 3d
1079, 1089 (Mass. 2015), the court in Martin held that
the doctrine did not apply because the pursuit “commenced with probable cause to issue a citation for civil
marijuana possession, which is not a jailable misdemeanor” and therefore insufficiently severe, 81 N.E.
3d at 356.
In sum, officers applying the hot pursuit doctrine
have to draw distinctions based on the facts of each
specific case to determine whether warrantless pursuit into a private home is justified. Indeed, some jurists have suggested that drawing these distinctions
in the field is easier when there is a clear rule that the
doctrine applies only to suspected felonies. See, e.g.,
State v. Ferguson, 767 N.W.2d 187, 203 (Wis. 2009)
(“As city police officers step over the threshold to arrest for disorderly conduct, how are they to know if
conduct will subsequently be charged as a jailable or
nonjailable offense? When officers have to act in the
middle of the night under split-second circumstances,
how can we expect them to make these nuanced decisions?”) (Bradley, J., concurring). In other words, applying the hot pursuit doctrine can be quite similar in
the field to the totality of the circumstances approach
for exigency.
24
III.
Requiring That The Totality Of The Circumstances Demonstrate Exigency Prior
To Entering A Home To Arrest A Suspected Misdemeanant Advances The
States’ Interest In Their Residents’ Privacy Rights.
This Court has historically judged possible Fourth
Amendment violations by balancing the government’s
regulatory and law enforcement interests against the
individual privacy interests at stake. See, e.g., Arizona v. Gant, 556 U.S. 332, 345 (2009) (“A rule that
gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of
the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless
individuals.”). But there are also public interests that
are tied to individual privacy interests. Put differently, the States themselves have an interest in the
privacy rights protected by the Fourth Amendment—
similar to the States’ interest in the First Amendment
context, which this Court has long recognized. See,
e.g., Bartnicki v. Vopper, 532 U.S. 514, 532 (2001) (“In
a democratic society privacy of communication is essential if citizens are to think and act creatively and
constructively.”) (internal quotations and citation
omitted).
So, for example, the Court allows reasonable time,
place, and manner regulations of speech based on its
consideration of the public’s collective interests in facilitating and regulating speech. See, e.g., Grayned v.
City of Rockford, 408 U.S. 104, 118-119 (1972) (describing public’s collective interests in preventing disruption of school activities, on the one hand, and in
25
publicizing “significant grievances,” on the other);
Shuttlesworth v. City of Birmingham, 394 U.S. 147,
163 (1969) (referring to the importance to both the
public and the speaker in having political expression
heard). Relatedly, the Court has acknowledged the
importance of communicating ideas for democratic dialogue as well as to individual expression. See Red
Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (“But
the people as a whole retain their interest in free
speech by radio and their collective right to have the
medium function consistently with the ends and purposes of the First Amendment.”). First Amendment
interests are thus both collective and individual, and
the collective interests at stake can both support and
cut against governmental intrusion on the right.
History and common sense demonstrate that the
States have collective interests in Fourth Amendment
rights, just as they do in First Amendment rights. Privacy is essential to the flourishing of free thought,
which serves both individual and collective interests.
See Healy v. James, 408 U.S. 169, 171 (1972) (“We also
are mindful of the equally significant interest in the
widest latitude for free expression and debate consonant with the maintenance of order.”). 39 And the
Fourth Amendment secures these interests just as the
39 See Judith Wagner DeCew, In Pursuit of Privacy: Law, Ethics,
and the Rise of Technology 61-80 (1997) (explaining that without
privacy, we feel weak and vulnerable; with privacy, we feel the
independence and strength to resist conformity and exercise the
autonomy to forge our own unique lifestyle).
26
First Amendment does. 40 Indeed, protections against
unreasonable searches and seizures help to provide a
setting in which other liberties—such as free speech,
religious activity, and a private family life—can be exercised, allowing social relations among interdependent and free individuals to flourish. 41 Thus, historically, the Fourth Amendment’s warrant requirement
reflected the concern that allowing searches of homes
without an individualized warrant empowered the
Crown to suppress opposition to the British monarchy, confiscate and destroy dissident religious texts,
and suppress anti-state publications. 42
Following this Court’s lead, many state courts have
recognized the interest of the States in their residents’
right to privacy, as well. See, e.g., Kearney v. Solomon
Smith Barney, Inc., 137 P.3d 914, 934 (Cal. 2006) (resolving conflict of law in favor of application of California’s privacy statute because to do otherwise would
impair California’s strong interest in protecting the
privacy of its residents); State v. Gibbs, 730 N.E.2d
1027, 1031 (Ohio Ct. App. 1999) (“the state has a legitimate interest in protecting its citizens from unwanted intrusions into their privacy because each citizen has the right to be let alone”) (citing Rowan v.
United States Post Office Dep’t, 397 U.S. 728, 736-737
(1970)); Petrillo v. Syntex Laboratories, Inc., 499
Andrew E. Taslitz, Stories of Fourth Amendment Disrespect:
From Elian to the Internment, 70 Fordham L. Rev. 2257, 2266
(2002).
40
Joseph William Singer, Entitlement: The Paradoxes of Property 11, 23, 31-32, 131 (2000).
41
42 Alexander Reinert, Public Interest(s) and Fourth Amendment
Enforcements, 2010 U. Ill. L. Rev. 1461, 1486 (2010).
27
N.E.2d 952, 971 (Ill. App. Ct. 1986) (“Moreover, the
State has a significant interest in safeguarding the
privacy rights of individual patients.”); West Virginia
Citizens Action Group v. Daley, 174 W. Va. 299, 308
(W. Va. 1984) (prohibitions on canvassing after 5:00
p.m. “also directly further the towns’ interest in protecting the privacy of their residents”); State v. Keaton, 371 So. 2d 86, 92 (Fla. 1979) (“The state has a legitimate concern with protecting substantial privacy
interests of its citizens from being invaded in an essentially intolerable manner.”) (citing Cohen v. California, 403 U.S. 15, 21 (1971)).
And just as the individual right to privacy is perhaps most sacred in one’s own home, see United States
v. United States District Court, 407 U.S. 297, 313
(1972) (“physical entry of the home is the chief evil
against which the wording of the Fourth Amendment
is directed”), nowhere is the State’s interest in protecting that right for its residents stronger than in their
homes, see, e.g., Curtis v. Thompson, 840 F.2d 1291,
1299 (7th Cir. 1988) (“Unquestionably, Illinois’ interest in ensuring the privacy of its residents while they
are at home is strong and valid.”). This Court has recognized that “[t]he State’s interest in protecting the
well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Carey v. Brown, 447 U.S. 455, 471 (1980). And
the Court has held that the State may act to protect
this interest: “a special benefit of the privacy all citizens enjoy within their own walls, which the State
may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals
are not required to welcome unwanted speech into
their own homes and that the government may protect
28
this freedom.” Frisby v. Schultz, 487 U.S. 474, 484485 (1988).
But where police regularly intrude on the privacy
of the home to make warrantless arrests of suspected
misdemeanants without consideration of other exigent circumstances, the intrusions not only undermine the States’ interests in protecting the privacy of
their residents, they alienate the community from the
police. 43 This alienation is harmful to government
and societal interests generally because “integral to
the Constitution and our societal view of government
is a reciprocal trust between the government and its
citizens.” 44 More specifically, this alienation undermines the States’ ability to enforce their laws by making members of these communities less likely to cooperate as witnesses and jurors. 45 In other words, when
individuals suffer intrusions on their right to privacy,
it affects the willingness of the whole community to
participate in collective activity that is beneficial to
the States. 46
In sum, the States’ interests here do not support allowing officers to intrude on individual privacy. Rather, those interests—including in officer safety and
Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L.
Rev. 333, 386-392 (1998).
43
44 Scott E. Sundby, “Everyman”’s Fourth Amendment: Privacy
or Mutual Trust Between Government and Citizen?, 94 Colum. L.
Rev. 1751, 1777 (1994)
David A. Harris, The Stories, the Statistics, and the Law: Why
“Driving While Black” Matters, 84 Minn. L. Rev. 265, 268-269
(1999).
45
46
Reinert, supra note 42, at 1488.
29
encouraging collective activity beneficial to the
States—would not be served by extending the hot pursuit doctrine to misdemeanants. This is especially
true given the States’ reduced interest in the immediate arrest of misdemeanants. Where state interests
would be served by allowing law enforcement to enter
a home without a warrant to arrest a misdemeanant,
the totality of the circumstances test adequately protects those interests.
CONCLUSION
The Decision of the Court of Appeal for the State
of California, First Appellate Division, should be reversed.
Respectfully submitted,
KWAME RAOUL
Illinois Attorney General
JANE ELINOR NOTZ*
Solicitor General
SARAH A. HUNGER
Deputy Solicitor General
GARSON FISCHER
Assistant Attorney General
100 West Randolph Street
Chicago, Illinois 60601
(312) 814-5376
jnotz@atg.state.il.us
* Counsel of Record
DECEMBER 2020
30
KARL A. RACINE
Attorney General
District of Columbia
400 6th Street, NW
Suite 8100
Washington, D.C. 20001
THOMAS J. MILLER
Attorney General
State of Iowa
1305 E. Walnut Street
Des Moines, IA 50319
BRIAN E. FROSH
Attorney General
State of Maryland
200 St. Paul Place
Baltimore, MD 21202
DANA NESSEL
Attorney General
State of Michigan
P.O. Box 30212
Lansing, MI 48909
AARON D. FORD
Attorney General
State of Nevada
100 N. Carson Street
Carson City, NV 89701
ELLEN F. ROSENBLUM
Attorney General
State of Oregon
1162 Court Street NE
Salem, OR 97301
MARK R. HERRING
Attorney General
Commonwealth of Virginia
202 North 9th Street
Richmond, VA 23219
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