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

Supreme Court briefJan 8, 2021

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No. 20-18

IN THE

Supreme Court of the United States

ARTHUR GREGORY LANGE,

Petitioner,

CALIFORNIA,

Respondent.

On Writ of Certiorari

to the Court of Appeal of the State of California,

First Appellate Division

BRIEF OF COURT-APPOINTED

AMICUS CURIAE AMANDA K. RICE

IN SUPPORT OF THE JUDGMENT BELOW

Robert N. Stander

Parker Rider-Longmaid

Mary H. Schnoor*

Amelia A. DeGory

Angela E. Lesnak*

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

* Admitted respectively in

Illinois and California; not

admitted in DC (supervised by

a licensed DC Bar member)

Amanda K. Rice

Counsel of Record

Andrew J. Clopton

JONES DAY

150 West Jefferson Ave.

Suite 2100

Detroit, MI 48226

(313) 733-3939

arice@jonesday.com

Attorneys for Amicus Curiae

QUESTION PRESENTED

Does pursuit of a person who a police officer has

probable cause to believe has committed a misdemeanor categorically qualify as an exigent circumstance sufficient to allow the officer to enter a home

without a warrant?

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

TABLE OF AUTHORITIES ....................................... v

INTEREST OF AMICUS CURIAE............................ 1

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 4

SUMMARY OF ARGUMENT .................................... 7

ARGUMENT ............................................................ 10

HOT PURSUIT OF A SUSPECTED

MISDEMEANANT JUSTIFIES

WARRANTLESS ENTRY........................................ 10

This Court Has Held that Hot

Pursuit Categorically Justifies

Warrantless Entry, Without

Distinguishing Between

Felonies and Misdemeanors .................... 10

The Hot Pursuit Rule Reflects a

Balance of Strong Government

Interests in Acting Swiftly with

Diminished Interests in

Personal Privacy....................................... 13

The government has strong

interests in swiftly

apprehending fleeing suspects......... 13

A fleeing suspect has

significantly diminished

privacy interests ............................... 17

iii

TABLE OF CONTENTS

(continued)

Page

II.

The Hot Pursuit Exception Has

Common-Law Roots ................................. 20

A CASE-BY-CASE RULE CANNOT BE

RECONCILED WITH PRECEDENT, HISTORY,

OR GOOD POLICY ................................................ 23

Many Exceptions to the Warrant

Requirement—Including for Hot

Pursuit—Operate Categorically .............. 25

This Court’s decisions

establish that the hot pursuit

exception, like several other

warrant-requirement

exceptions, is categorical.................. 25

Case-specific interestbalancing is inappropriate

in hot pursuit cases .......................... 31

The common law recognized

categorical justifications,

including hot pursuit, for

warrantless entry of a home ............ 33

The Hot Pursuit Exception Is Not

Limited to Felonies .................................. 34

There is no precedential basis

for a felony–misdemeanor

distinction in the hot pursuit

context .............................................. 34

TABLE OF CONTENTS

(continued)

Page

Interest-balancing does not

support a misdemeanor

limitation .......................................... 36

The felony–misdemeanor line

is unworkable and arbitrary ............ 38

The common law does not

support limiting the hot

pursuit exception to felonies ............ 41

Lange’s and California’s Policy

Arguments Lack Merit ............................. 42

Limiting the hot pursuit

exception would hinder

effective policing ............................... 42

A categorical hot pursuit

rule will not contribute to

police abuse ...................................... 44

III. IN THE ALTERNATIVE, THE COURT SHOULD

AFFIRM THE JUDGMENT BELOW EVEN

UNDER A CASE-SPECIFIC APPROACH.................. 49

CONCLUSION ......................................................... 50

APPENDIX: CLASSIFICATION OF

OFFENSES IN CALIFORNIA

PENAL CODE PART 1 .................................... 1a

TABLE OF AUTHORITIES

Page(s)

CASES

Arizona v. Gant,

556 U.S. 332 (2009) ........................................ 19, 27

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) ...................................... passim

Bailey v. United States,

568 U.S. 186 (2013) .............................................. 18

Bd. of Cnty. Comm’rs v. Umbehr,

518 U.S. 668 (1996) .............................................. 40

Berkemer v. McCarty,

468 U.S. 420 (1984) ........................................ 39, 47

Birchfield v. North Dakota,

136 S. Ct. 2160 (2016) .............................. 11, 29, 30

Bishop Atterbury’s Case (1723)

16 How. St. Tr. 323 (H.L.) ................................... 21

Bodine v. Warwick,

72 F.3d 393 (3d Cir. 1995) ................................... 43

Brigham City v. Stuart,

547 U.S. 398 (2006) .............................. 1, 10, 11, 29

Brown v. Texas,

443 U.S. 47 (1979) ................................................ 47

Cahill v. People,

106 Ill. 621 (1883) ................................................ 23

California v. Acevedo,

500 U.S. 565 (1991) .............................................. 32

TABLE OF AUTHORITIES

(continued)

Page(s)

California v. Carney,

471 U.S. 386 (1985) ........................................ 27, 28

California v. Hodari D.,

499 U.S. 621 (1991) ........................................ 14, 15

Carpenter v. United States,

138 S. Ct. 2206 (2018) .......................................... 10

Carroll v. Ellington,

800 F.3d 154 (5th Cir. 2015) ................................ 45

Chimel v. California,

395 U.S. 752 (1969) .............................................. 27

City Council v. Payne,

11 S.C.L. (2 Nott & McC.) 475 (1820).................. 22

City of Bismarck v. Brekhus,

908 N.W.2d 715 (N.D. 2018) ................................ 32

City of Middletown v. Flinchum,

765 N.E.2d 330 (Ohio 2002) ................................. 32

Collins v. Virginia,

138 S. Ct. 1663 (2018) .................................... 11, 21

Commonwealth v. Jewett,

31 N.E.3d 1079 (Mass. 2015) ................... 15, 19, 32

County of Los Angeles v. Mendez,

137 S. Ct. 1539 (2017) .......................................... 45

Davis v. United States,

564 U.S. 229 (2011) .............................................. 49

Dunaway v. New York,

442 U.S. 200 (1979) .............................................. 28

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Est. of Sauceda v. City of North Las Vegas,

380 F. Supp. 3d 1068 (D. Nev. 2019) ................... 45

Ewing v. California,

538 U.S. 11 (2003) ................................................ 39

Ford v. Breen,

173 Mass. 52 (1899) ............................................. 34

Franklin v. City of South Bend,

No. 3:13-cv-207, 2015 WL 5174060

(N.D. Ind. Sept. 3, 2015) ...................................... 45

Georgia v. Randolph,

547 U.S. 103 (2006) .............................................. 28

Illinois v. Gates,

462 U.S. 213 (1983) .............................................. 43

Illinois v. McArthur,

531 U.S. 326 (2001) .............................................. 17

Illinois v. Rodriguez,

497 U.S. 177 (1990) .............................................. 14

Illinois v. Wardlow,

528 U.S. 119 (2000) .............................................. 16

Jennings v. Stephens,

574 U.S. 271 (2015) .............................................. 49

Johnson v. United States,

559 U.S. 133 (2010) .............................................. 41

Kansas v. Glover,

140 S. Ct. 1183 (2020) .......................................... 47

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Kentucky v. King,

563 U.S. 452 (2011) .............................. 1, 10, 11, 44

Knot v. Gay,

1 Root 66 (Conn. Super. Ct. 1774) ....................... 22

Lentz v. Raum,

21 Pa. D. 1116 (Pa. Ct. Com. Pl. 1912)................ 42

Luer v. St. Louis County,

No. 4:17-cv-00767, 2018 WL 6064862

(E.D. Mo. Nov. 19, 2018) ...................................... 45

Macooh v. Queen,

[1993] 2 S.C.R. 802 (Can.) ........................... passim

Magruder v. United States,

62 A.3d 720 (D.C. 2013) ....................................... 26

Maryland v. Buie,

494 U.S. 325 (1990) ........................................ 19, 27

Maryland v. Wilson,

519 U.S. 408 (1997) .............................................. 16

Mascorro v. Billings,

656 F.3d 1198 (10th Cir. 2011) ............................ 45

Michigan v. Chesternut,

486 U.S. 567 (1988) .............................................. 31

Michigan v. Fisher,

558 U.S. 45 (2009) (per curiam) .......................... 29

Michigan v. Tyler,

436 U.S. 499 (1978) ........................................ 14, 29

TABLE OF AUTHORITIES

(continued)

Page(s)

Minnesota v. Olson,

495 U.S. 91 (1990) .......................................... 11, 26

Missouri v. McNeely,

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

Mitchell v. Wisconsin,

139 S. Ct. 2525 (2019) .............................. 17, 18, 38

Payton v. New York,

445 U.S. 573 (1980) ........................................ 20, 21

People v. Johnson,

48 N.W. 175 (Mich. 1891) .................................... 42

People v. Lloyd,

216 Cal. App. 3d 1425 (1989) ..................... 7, 48, 49

People v. Wear,

867 N.E.2d 1027 (Ill. App. Ct. 2007) ................... 21

Plumhoff v. Rickard,

572 U.S. 765 (2014) .............................................. 14

Rakas v. Illinois,

439 U.S. 128 (1978) .............................................. 18

Richards v. Wisconsin,

520 U.S. 385 (1997) ........................................ 30, 31

Riley v. California,

573 U.S. 373 (2014) ........................................ 13, 32

Scher v. United States,

305 U.S. 251 (1938) ............................ 11, 12, 13, 34

Scott v. Harris,

550 U.S. 372 (2007) ............................ 13, 14, 15, 18

TABLE OF AUTHORITIES

(continued)

Page(s)

Semayne’s Case (1604)

77 Eng. Rep. 194 (K.B.)........................................ 21

Smith v. Stoneburner,

716 F.3d 926 (6th Cir. 2013) ................................ 37

Stanton v. Sims,

571 U.S. 3 (2013) (per curiam) .......... 11, 34, 35, 36

State v. Blake,

468 N.E.2d 548 (Ind. Ct. App. 1984) ................... 16

State v. Davis,

768 So. 2d 201 (La. Ct. App. 2000) ...................... 43

State v. Ionescu,

937 N.W.2d 90 (Wis. Ct. App. 2019) .................... 32

State v. Legg,

633 N.W.2d 763 (Iowa 2001).......................... 17, 44

State v. Markus,

211 So. 3d 894 (Fla. 2017) ................................... 35

State v. Ricci,

739 A.2d 404 (N.H. 1999)............................... 15, 26

State v. Thomas,

124 P.3d 48 (Kan. 2005) ....................................... 16

State v. Walker,

953 So. 2d 786 (La. 2007)..................................... 16

State v. Weber,

887 N.W.2d 554 (Wis. 2016) .................... 18, 19, 43

Steagald v. United States,

451 U.S. 204 (1981) ........................................ 18, 26

TABLE OF AUTHORITIES

(continued)

Page(s)

Tennessee v. Garner,

471 U.S. 1 (1985) .......................................... passim

Terry v. Ohio,

392 U.S. 1 (1968) ...................................... 14, 46, 47

Thomas v. State,

658 S.E.2d 796 (Ga. Ct. App. 2008) ............... 18, 31

Thompson v. City of Florence,

No. 3:17-cv-01053, 2019 WL 3220051

(N.D. Ala. July 17, 2019) ............................... 43, 46

Trent v. Wade,

776 F.3d 368 (5th Cir. 2015) ................................ 26

United States v. Corder,

724 F. App’x 394 (6th Cir. 2018) ......................... 46

United States v. Cruz,

977 F.3d 998 (10th Cir. 2020) .............................. 26

United States v. Jones,

204 F.3d 541 (4th Cir. 2000) ................................ 32

United States v. Myers,

550 F.2d 1036 (5th Cir. 1977) .............................. 16

United States v. Robinson,

414 U.S. 218 (1973) ........................................ 27, 32

United States v. Santana,

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

United States v. Watson,

423 U.S. 411 (1976) .................................. 12, 13, 28

xii

TABLE OF AUTHORITIES

(continued)

Page(s)

Voisine v. United States,

136 S. Ct. 2272 (2016) .......................................... 38

Warden v. Hayden,

387 U.S. 294 (1967) .............................................. 26

Washington v. Chrisman,

455 U.S. 1 (1982) .................................................. 29

Wells v. City of Dearborn Heights,

538 F. App’x 631 (6th Cir. 2013) ......................... 44

Welsh v. Wisconsin,

466 U.S. 740 (1984) .................................... 3, 35, 36

Whren v. United States,

517 U.S. 806 (1996) ........................................ 40, 47

Wilson v. Arkansas,

514 U.S. 927 (1995) ........................................ 20, 43

Z.J. ex rel. Jones v. Kan. City Bd. of

Police Comm’rs,

931 F.3d 672 (8th Cir. 2019) ................................ 44

STATUTES

Ala. Code § 13A-8-194 ............................................... 40

Cal. Health & Safety Code § 11360 .......................... 39

Cal. Ins. Code § 11162 ............................................... 38

Cal. Penal Code § 17.................................................. 39

Cal. Penal Code § 148.............................................. 5, 6

Cal. Penal Code § 148.9............................................. 40

Cal. Penal Code § 156................................................ 38

xiii

TABLE OF AUTHORITIES

(continued)

Page(s)

Cal. Penal Code § 171c .............................................. 38

Cal. Penal Code § 241................................................ 38

Cal. Penal Code § 241.3............................................. 38

Cal. Penal Code § 243.25........................................... 38

Cal. Penal Code § 417................................................ 38

Cal. Penal Code § 417.4............................................. 38

Cal. Penal Code §§ 486–490.1 ................................... 39

Cal. Penal Code § 528................................................ 38

Cal. Penal Code § 840................................................ 49

Cal. Veh. Code § 2800 ................................................. 5

Cal. Veh. Code § 23152 ............................................... 5

Cal. Veh. Code § 27001 ............................................... 4

Cal. Veh. Code § 27007 ........................................... 4, 5

Del. Code Ann. Title 21, § 4103 ................................ 40

Fla. Stat. § 316.1935 ................................................. 40

Me. Stat. Title 17-A, § 4 ............................................ 40

N.J. Stat. Ann. § 2C:1-4 ............................................ 40

OTHER AUTHORITIES

Akhil Reed Amar, Fourth Amendment

First Principles,

107 HARV. L. REV. 757 (1994) .............................. 21

xiv

TABLE OF AUTHORITIES

(continued)

Page(s)

ROBERT BEVILL, A TREATISE ON THE LAW

OF HOMICIDE AND OF LARCENY AT

COMMON LAW (1799)............................................. 22

1 WILLIAM BLACKSTONE, COMMENTARIES ........... 23, 33

RICHARD BURN, THE JUSTICE OF THE

PEACE (1772)......................................................... 22

1 JOSEPH CHITTY & RICHARD PETERS, A

PRACTICAL TREATISE ON THE

CRIMINAL LAW (1819) ........................................... 21

WILLIAM J. CUDDIHY, THE FOURTH

AMENDMENT: ORIGINS AND

ORIGINAL MEANING (2009) ........................... passim

W.F. Foster & Joseph E. Magnet, The

Law of Forcible Entry, 15 ALTA. L.

REV. 271 (1977)..................................................... 21

Dale Joseph Gilsinger, Annotation,

When Is Warrantless Entry of

House or Other Building Justified

Under “Hot Pursuit” Doctrine,

17 A.L.R. 6th 327 (2006) .......................... 26, 27, 37

MATTHEW HALE, THE HISTORY OF THE

PLEAS OF THE CROWN (1736) ................................ 33

3 WAYNE R. LAFAVE, SEARCH & SEIZURE

(6th ed. Sept. 2020) .............................................. 26

1 LAWS OF THE COMMONWEALTH OF

PENNSYLVANIA (1771) (J. Bioren ed. 1810).......... 33

TABLE OF AUTHORITIES

(continued)

Page(s)

WILLIAM J. NOVAK, THE PEOPLE’S

WELFARE (1996) .................................................... 33

JAMES PARKER, CONDUCTOR GENERALIS (1788) ........ 23

George C. Thomas III, Stumbling Toward

History: The Framers’ Search and Seizure

World, 43 TEX. TECH L. REV. 199 (2010) ............. 22

Horace L. Wilgus, Arrest Without A

Warrant, 22 MICH. L. REV. 541 (1924) ................ 42

Horace L. Wilgus, Arrest Without A

Warrant, 22 MICH. L. REV. 798 (1924) .......... 23, 33

INTEREST OF AMICUS CURIAE

This Court invited Amanda K. Rice to brief and

argue this case as amicus curiae in support of the California Court of Appeal’s judgment after the State of

California declined to defend that court’s grounds for

decision.1

INTRODUCTION

The “touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398,

403 (2006). And there is nothing reasonable about allowing an offender to defeat a lawful public arrest by

fleeing into a home. That is true regardless of whether

the underlying crime happens to be classified as a felony or a misdemeanor.

This Court has long recognized that the warrant

requirement “is subject to certain reasonable exceptions,” Kentucky v. King, 563 U.S. 452, 459–60 (2011),

and that those exceptions sometimes “apply categorically.” Missouri v. McNeely, 569 U.S. 141, 148–50 &

n.3 (2013). In United States v. Santana, 427 U.S. 38

(1976), this Court held that “hot pursuit” is one of

those categorical exceptions. The “act of retreating

into [a] house,” the Court reasoned, cannot “thwart an

otherwise proper arrest” that has been “set in motion

in a public place.” Id. at 42–43. Although the drugdealing offense in Santana happened to be a felony, id.

at 40–42, the Court’s ruling turned neither on the

classification of that offense nor on whether other exigent circumstances were present. Instead, the Court

1 No counsel for a party authored this brief in whole or in

part, and no person other than amicus curiae and her firm made

a monetary contribution to this brief’s preparation or submission.

made clear that hot pursuit was itself “sufficient to

justify the warrantless entry into [a] house.” Id. at 43.

The Santana rule reflects traditional interest-balancing, which categorically favors law enforcement’s

side of the scales in hot pursuit cases. On the one hand,

every time a suspect runs he triggers a weighty law

enforcement interest in discouraging flight so that

criminals do not think that reaching a home means

they are “home free.” Flight also implicates several

other law enforcement interests, including the needs

to identify the offender, protect the public from harm,

and prevent the destruction of evidence. Those interests are properly assessed categorically not only because they exist in some combination in most hot pursuit cases, but also because they are difficult for officers to assess in any particular case in the heat of pursuit. On the other hand, the fugitive significantly diminishes any privacy interests he may have in the

home he enters—assuming it is even his own—when

he decides to run inside with police hot on his heels.

The hot pursuit exception also has common-law

roots. The common law generally permitted hot pursuit entries for crimes committed in an officer’s presence. And other doctrines—including for hue and cry,

breach of the peace, and recapture of arrestees—also

justified warrantless home entry in circumstances

similar to hot pursuit. In reality, however, a commonlaw court would not have gotten even that far: There

was no clear warrant requirement for home arrests,

and no exclusionary rule regardless.

In the decision below, the California Court of Appeal adhered to precedent, interest-balancing, and the

common law by treating hot pursuit as a categorical

exception to the warrant requirement. Pet.App.15a–

20a. It applied that exception in upholding the drunkdriving conviction of Petitioner Arthur Lange, who

failed to heed California Highway Patrol Officer Aaron Weikert’s signal to pull over and instead continued driving into a garage. Because Lange decided to

flee and Officer Weikert had probable cause to arrest

him, Officer Weikert was justified in pursuing Lange

into the garage to complete the arrest. Pet.App.15a–

17a, 21a.

Lange and California disagree. Lange, for his part,

claims there are no categorical exceptions to the warrant requirement for home entries. That argument

fails at every turn. It disregards this Court’s consistent treatment of hot pursuit and other exceptions

as categorical. It ignores both that flight is itself dispositive of the interest-balancing in hot pursuit cases

and that case-specific balancing is impractical in the

heat of the moment. And it lacks any common-law

grounding.

California heads down a different path, conceding

that the hot pursuit exception operates categorically

for felonies but inventing a different, case-by-case rule

for misdemeanors. There is no precedential basis for

that approach either. The main case on which it relies,

Welsh v. Wisconsin, 466 U.S. 740 (1984), did not even

involve hot pursuit, and Atwater v. City of Lago Vista,

532 U.S. 318 (2001), rejected a felony-only rule in a

closely related context. Moreover, the justifications for

the hot pursuit exception rest on the suspect’s flight,

not his underlying crime. And a felony–misdemeanor

line is unworkable and arbitrary.

Lange and California make their last stand in policy territory. But their proposed alternatives—knock-

ing and seeking consent to enter (as if the fleeing suspect will turn around to answer the door) and waiting

for a warrant (as if the fleeing suspect will take a timeout too)—would hinder effective policing. They are

also unnecessary, because neither evidence nor logic

suggests that the hot pursuit exception encourages

police abuse. And if States don’t like the Fourth

Amendment balance, they may strike their own under

state law.

At the end of the day, the hot pursuit rule reflects

common sense. Whatever the classification of his initial crime, a fleeing suspect cannot graft the protections of the home onto a lawful arrest begun in public

by running inside. The Court should adhere to this

reasonable rule and affirm the judgment below.

STATEMENT OF THE CASE

1. Officer Weikert was on patrol late one evening

when he noticed Lange drive by. Pet.App.2a. Lange

would have been difficult to miss: He was blaring loud

music and honking his horn repeatedly for no apparent reason. Id. California law prohibits operating a

car’s sound system at an excessive volume, and permits use of a horn only as necessary for safety. Cal.

Veh. Code §§ 27001, 27007. So Officer Weikert pulled

out after Lange, intending to conduct a traffic stop.

Pet.App.2a. He caught up after following Lange

through two turns, then activated his overhead lights

to tell Lange to pull over. Pet.App.2a–3a.

But Lange kept driving. He pulled into a residential driveway, with Officer Weikert following close behind, and continued into a garage. Pet.App.3a. The

garage door then began closing behind him. Id. To prevent Lange’s escape, Officer Weikert exited his vehicle

and stuck his foot in front of the garage-door sensor,

causing the door to go back up. Id. He then entered

the garage and questioned Lange, who showed clear

signs of excessive intoxication. Id.; C.T. 26, 136. A

blood test later placed Lange’s blood-alcohol content

at 0.245 percent, more than three times the legal limit.

C.T. 20, 207.

2. The State charged Lange in Sonoma County

Superior Court with driving under the influence of alcohol (DUI), a misdemeanor, Cal. Veh. Code

§ 23152(a), (b), and with operating a vehicle’s sound

system at excessive levels, an infraction, id. § 27007.

Pet.App.2a. Lange moved to suppress all evidence obtained after Officer Weikert entered his garage, arguing that the warrantless entry had violated the

Fourth Amendment. Id.

The Superior Court denied the motion. Officer

Weikert, it found, had lawfully directed Lange to pull

over based on the apparent Vehicle Code violations.

Pet.App.4a. And when Lange failed to stop, Officer

Weikert had probable cause to believe he had committed the misdemeanor of willfully obstructing a peace

officer or failing to comply with a peace officer’s order.

Pet.App.3a–4a; see Cal. Veh. Code § 2800; Cal. Penal

Code § 148. Officer Weikert’s hot pursuit of Lange, accordingly, justified his warrantless entry into Lange’s

garage, and the evidence he subsequently obtained

was admissible. Pet.App.4a.

3. Lange took an interlocutory appeal, and the

Superior Court’s Appellate Division affirmed.

Pet.App.26a–27a. “[A] reasonable person in [Lange’s]

position,” the court explained, “would have known the

officer intended to detain [Lange] when the officer activated his emergency lights from right behind

[Lange’s] vehicle and continued following [him].”

Pet.App.26a. And Lange’s “failure to submit to the officer’s show of authority” gave Officer Weikert “probable cause to believe [Lange] was attempting to

evade … detention” in violation of Penal Code § 148.

Pet.App.27a. Because Lange’s “detention … was initiated in a public place,” the court held that Officer

Weikert did not need a warrant to follow him into the

garage. Pet.App.26a.

After that ruling, Lange pleaded no contest to the

misdemeanor DUI offense. Pet.App.6a. Because this

was not Lange’s first DUI conviction and because his

blood-alcohol content had far exceeded the legal limit,

the Superior Court sentenced him to thirty days in jail

and three years’ probation. C.T. 208.

Lange appealed his conviction, and the Appellate

Division again affirmed. Pet.App.23a–25a (explaining

that defendants who plead no contest after an interlocutory appeal are entitled to postconviction review).

As before, it found that Officer Weikert had probable

cause to believe that Lange intended to evade a public

detention, and that his pursuit of Lange into the garage had been lawful. Id.

4. The California Court of Appeal granted review

and affirmed. Pet.App.1a–22a. Its logic was straightforward. First, “[t]here was evidence Lange was violating the Vehicle Code, which justified the officer’s attempt to stop Lange’s vehicle.” Pet.App.16a. Second,

“a reasonable person in Lange’s position would have

known the officer intended for him to pull over.”

Pet.App.17a. Third, “[w]hen Lange failed to stop his

car, the officer’s reasonable cause to detain Lange for

traffic infractions ripened into probable cause to arrest him for misdemeanor offenses.” Pet.App.18a.

“[T]he officer’s ‘hot pursuit’ into the house to prevent

the suspect from frustrating [that] arrest,” the court

concluded, “constitutes a proper exception to the warrant requirement.” Id.; see also Pet.App.15a–16a (citing Santana, 427 U.S. at 42–43). And “the fact that

the offenses justifying the initial detention or arrest

were misdemeanors is of no significance in determining the validity of the entry without a warrant.”

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

1425, 1430 (1989)).

The California Supreme Court denied review.

Pet.App.28a.

5. This Court granted certiorari to resolve a division of authority about whether the hot pursuit exception applies to misdemeanors.

SUMMARY OF ARGUMENT

I. Precedent, interest-balancing, and history all

confirm that an officer in hot pursuit of a suspected

misdemeanant does not violate the Fourth Amendment by following him into a home without a warrant.

A. This Court has long held that hot pursuit of a

fleeing suspect justifies warrantless entry. It did so

most clearly in Santana. 427 U.S. at 42–43. And since

then, it has repeatedly characterized hot pursuit as a

categorical exigency. The Court has never said that

the hot pursuit rule turns on the character of the underlying offense. Indeed, Atwater’s holding that the

Constitution permits warrantless arrests of misdemeanants just as it permits warrantless arrests of felons confirms that there is no basis for treating misdemeanants differently if they resist by taking flight.

B. The hot pursuit exception appropriately balances the government’s strong interests in pursuing

fleeing suspects against those suspects’ diminished

privacy interests when they attempt to hide inside a

home. On the government’s side of the scales are

strong interests in discouraging flight, identifying

suspects, eliminating public-safety threats, and preventing destruction of evidence. All hot pursuit cases

implicate the first of those interests, and most will implicate some (if not all) of the others. And the pursuit

itself makes it difficult for officers to assess these interests in real time. By contrast, the fleeing suspect’s

interests are minimal. If he submits to a lawful public

arrest, his home remains his castle. But if he chooses

to resist by running inside, he invites the pursuing officer to follow for the limited purpose of completing

that arrest and cannot reasonably expect the officer to

stop at the threshold.

C. The hot pursuit exception developed from the

common law. As an initial matter, it is far from clear

that the common law had a rigid warrant requirement

for home arrests, and it certainly had no exclusionary

rule. So any complaint about hot pursuit would have

provided no basis for disturbing a conviction. Regardless, various common-law doctrines justified warrantless home entry in connection with non-felony crimes.

II. A case-by-case approach to misdemeanor hot

pursuit flouts precedent, has no basis in history, and

is bad policy.

A. Lange attempts to defend that approach by arguing that, at least where the home is concerned, the

Fourth Amendment’s warrant requirement tolerates

no categorical exceptions at all. But “traditional exceptions” to the warrant requirement are often categorical, McNeely, 569 U.S. at 150 n.3, and this Court

has made clear that hot pursuit is one of them. Rightly

so, both because the interest-balancing calculus yields

the same result in every hot pursuit case and because

officers cannot reasonably be expected to undertake

an individualized risk assessment in the midst of a

chase. Moreover, the common law recognized categorical rules in the context of home entries, including for

hot pursuit.

B. California, for its part, concedes that the hot

pursuit exception is categorical for felonies but argues

that misdemeanors should be treated differently. The

felony–misdemeanor line does not withstand scrutiny.

It finds no support in this Court’s precedents. It does

not change the balance between government and private interests. It tracks no discernable common-law

standard. And it yields arbitrary and unworkable results.

C. Lange’s and California’s policy arguments

likewise lack merit. A case-by-case approach would

hinder effective policing. And their suggestion that a

categorical rule will enable police abuse lacks evidentiary or logical support. Indeed, the fact patterns they

denounce either involve no hot pursuit, or involve

harms resulting from excessive force. Many jurisdictions (including California) have long applied the hot

pursuit exception to misdemeanors, and the sky has

shown no signs of falling.

III. The Court should affirm even if it holds that

the hot pursuit exception must be assessed case by

case. There is no dispute as to Officer Weikert’s goodfaith reliance on the categorical hot pursuit rule endorsed by California’s courts. And Officer Weikert’s

pursuit of Lange into his garage was reasonable on its

own terms anyway.

ARGUMENT

HOT PURSUIT OF A SUSPECTED MISDEMEANANT

JUSTIFIES WARRANTLESS ENTRY.

The Fourth Amendment requires all searches and

seizures to be reasonable. King, 563 U.S. at 459. Usually, police entries into residences are reasonable only

when conducted pursuant to a warrant. Brigham City,

547 U.S. at 403. But in certain well-defined situations,

compelling law enforcement needs make warrantless

entry reasonable. “[T]raditional 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.” McNeely, 569 U.S. at 148–50 & n.3.

Hot pursuit is such an exception. It applies when

an officer has probable cause to make a public arrest,

the suspect “retreat[s] into [a] house” to “thwart” that

arrest, and the officer follows the suspect inside to apprehend him. Santana, 427 U.S. at 42–43. Precedent,

Fourth Amendment interest-balancing, and commonlaw authorities all confirm that it covers felons and

misdemeanants alike.

A. This Court Has Held that Hot Pursuit

Categorically

Justifies

Warrantless

Entry, Without Distinguishing Between

Felonies and Misdemeanors.

This Court has recognized that “hot pursuit” of a

fleeing suspect is “sufficient to justify … warrantless

entry.” Santana, 427 U.S. at 43. And it has consistently characterized the hot pursuit exception in categorical terms. See, e.g., Carpenter v. United States, 138

S. Ct. 2206, 2222–23 (2018) (listing “the need to pursue a fleeing suspect” as an “exigenc[y]” justifying

warrantless entry); Birchfield v. North Dakota, 136

S. Ct. 2160, 2173 (2016) (similar); King, 563 U.S. at

460 (similar); McNeely, 569 U.S. at 149 (similar);

Brigham City, 547 U.S. at 403 (similar). Although

“other factors”—like the “risk of danger, the gravity of

the crime and likelihood that the suspect is armed”—

may “justify[] … entry” “in the absence of hot pursuit,”

Minnesota v. Olson, 495 U.S. 91, 100 (1990) (emphasis

added), no additional justification is necessary when

hot pursuit occurs.

This Court has never indicated that the hot pursuit exception turns on the classification of the underlying crime. To be sure, Santana happened to involve

a person police had probable cause to believe had committed a felony drug-dealing offense. See 427 U.S. at

40–41. But the Court’s reasoning hinged on the suspect’s flight, not her crime. See id. at 42 (explaining

that the defendant’s “act of retreating into her house

could [not] thwart an otherwise proper arrest”). The

Court did not rely on the classification of Santana’s

offense, much less “limit [its] holding based on that

fact.” Stanton v. Sims, 571 U.S. 3, 9 (2013) (per curiam).

Although Santana is the Court’s most significant

hot pursuit case, it does not stand alone. In Scher v.

United States, 305 U.S. 251 (1938), for example, the

Court did not even mention whether the underlying

crime (transporting illegal whiskey) was a misdemeanor or a felony. See Collins v. Virginia, 138 S. Ct.

1663, 1674 (2018) (classifying Scher as a “hot pursuit”

case). As in Santana, the suspect’s flight was the beginning and the end of the analysis. “[J]ust before

[Scher] entered the garage,” the Court reasoned, “the

following officers properly could have stopped [his]

car, made search and put him under arrest.” Scher,

305 U.S. at 255. “Passage of the car into the open garage closely followed by the observing officer did not

destroy this right.” Id.

If the hot pursuit decisions themselves left any

doubt about their applicability to misdemeanors, Atwater eliminated it. The Court had previously held in

United States v. Watson, 423 U.S. 411, 423–24 (1976),

that an officer does not need a warrant to arrest in

public someone he has probable cause to believe committed a crime. The question presented in Atwater

was whether that rule is limited to felonies, or

whether it also applies to misdemeanors and minor offenses. 532 U.S. at 323. The Court answered unequivocally: The same “standard of probable cause applies

to all arrests, without the need to balance the interests and circumstances involved in particular situations.” Id. at 354 (cleaned up). In support of that ruling, the Court cited the need for administrable rules

that officers can apply “on the spur (and in the heat)

of the moment”; the impracticality of expecting that

officers will “know the details of frequently complex

penalty schemes”; the danger of providing “a systematic disincentive to arrest in situations where … arresting would serve an important societal interest”;

and States’ ability to modify the rule through legislation. Id. at 347–52.

Those considerations apply with equal force to hot

pursuit. Indeed, Atwater’s extension of Watson to misdemeanors compels the application of Santana in

Lange. In Santana, the Court held that “a suspect

may not defeat an arrest which has been set in motion

in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place.”

Santana, 427 U.S. at 43. Factor in Atwater, and the

answer to the question presented follows directly: A

“suspect may not defeat an arrest which has been set

in motion in a public place, and is therefore proper under Watson [or Atwater], by the expedient of escaping

to a private place.” Id.

B. The Hot Pursuit Rule Reflects a Balance

of Strong Government Interests in

Acting Swiftly with Diminished Interests

in Personal Privacy.

The Court’s hot pursuit holdings were so commonsensical that they needed little elaboration. See

Santana, 427 U.S. at 42–43; Scher, 305 U.S. at 255.

But they reflect an appropriate balance between “the

importance of the governmental interests,” on the one

hand, and “the intrusion on the individual’s” privacy

interests, on the other. Scott v. Harris, 550 U.S. 372,

383 (2007) (citation omitted). That balancing must be

conducted categorically because flight implicates a

consistent set of interests in all hot pursuit cases, and

the pursuit makes it difficult for officers to assess

those interests in real time. Officers need “readily administrable rules” “lest every discretionary judgment

in the field be converted into an occasion for constitutional review,” often accompanied by the threat of personal liability. Atwater, 532 U.S. at 347; see, e.g., Riley

v. California, 573 U.S. 373, 398 (2014).

1. The government has strong interests

in swiftly apprehending fleeing

suspects.

The government interests in hot pursuit cases are

substantial. The government has a crucial interest in

every hot pursuit case in deterring flight from arrest.

Beyond that, hot pursuit usually implicates additional

interests in identifying the offender, eliminating

safety threats, and preventing destruction of evidence. Because officers “need to act quickly,” Santana,

427 U.S. at 42, those additional interests are difficult

to assess “on the spur (and in the heat) of the moment,” Atwater, 532 U.S. at 347. As a result, the flight

of a criminal suspect is itself an “exigency [that]

makes a warrantless search imperative to the safety

of the police and of the community.” Illinois v. Rodriguez, 497 U.S. 177, 191–92 (1990) (Marshall, J., dissenting).

a. The cornerstone of the hot pursuit rule is the

strong government interest—implicated by every hot

pursuit case—in discouraging flight from arrest. “An

arrest is the initial stage of a criminal prosecution,”

“intended to vindicate society’s interest in having its

laws obeyed.” Terry v. Ohio, 392 U.S. 1, 26 (1968). Apprehending a fleeing criminal suspect always presents

a “compelling need for official action.” McNeely, 569

U.S. at 169 (Roberts, C.J., concurring) (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). And, as this

Court has repeatedly recognized, flight itself is dangerous and must not be incentivized.

“Street pursuits always place the public at some

risk,” California v. Hodari D., 499 U.S. 621, 627

(1991), and vehicular pursuits, which may begin with

just a traffic offense, are more dangerous still, e.g.,

Plumhoff v. Rickard, 572 U.S. 765, 768–69, 776–77

(2014) (reckless flight from routine traffic stop “posed

a grave public safety risk”); Scott, 550 U.S. at 382 n.9,

385. Those dangers may escalate quickly. And with

“no way to convey convincingly to [the fugitive] … that

the chase [i]s off,” de-escalation can prove impossible.

Scott, 550 U.S. at 385. For these reasons, “compliance

with police orders to stop should … be encouraged.”

Hodari D., 499 U.S. at 627.

Although officers may decide to call off a chase

when a suspect escapes into a home, requiring them

to do so would teach offenders that reaching home

base means they are “home free.” But law enforcement

is not “a child’s game,” “with apprehension and conviction depending upon whether the officer or defendant

is the fleetest of foot.” Commonwealth v. Jewett, 31

N.E.3d 1079, 1089 (Mass. 2015) (quoting State v.

Ricci, 739 A.2d 404, 408 (N.H. 1999)). Treating it as

such would create “perverse incentives,” encouraging

more—and more reckless—flight. Scott, 550 U.S. at

385.

Concerns about incentivizing flight are exactly

what led this Court to reject a rule requiring police to

abandon vehicular chases in Scott. Such a rule, the

Court explained, would tell “[e]very fleeing motorist … that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow

line a few times, and runs a few red lights.” Id. The

hot pursuit exception recognizes that reaching the

garage door ought be no more effective.

b. Hot pursuit typically implicates several additional government interests too. Although the

strength of any one of those interests may vary from

case to case, nearly every conceivable scenario implicates some of them. And they must be assessed categorically because a pursuing officer—acting in the

heat of the moment and with incomplete information—cannot accurately assess them case by case.

First, an offender’s escape can make it impossible

to identify him later. Suspects on foot are likely to display few identifying clues. And vehicular fugitives

may be driving (or even have stolen) someone else’s

car. Particularly in rural communities—where calling

for backup to cover all exits may be impossible—an

officer’s ability to continue the pursuit may mean the

difference between accountability and impunity for offenders. See, e.g., State v. Blake, 468 N.E.2d 548, 553

(Ind. Ct. App. 1984) (identification “depended upon

pursuit and arrest”); State v. Thomas, 124 P.3d 48, 55

(Kan. 2005) (high risk that offender would escape apprehension where quickly obtaining a search warrant

at 2 a.m. was doubtful).

Second, fleeing suspects may pose a safety threat

to officers, other residents of the home, or themselves.

Such threats can be difficult to assess on the fly. The

pursuing officer will usually be unaware of the suspect’s criminal history, any active arrest warrants, or

the presence of a firearm or other weapon on his person or inside the home. The officer is also unlikely to

know whether the suspect is fleeing into his own home

or someone else’s. See, e.g., State v. Walker, 953 So. 2d

786, 790–91 (La. 2007) (defendant retreated into

third-person’s residence, where he was unwelcome).

These safety concerns are especially understandable,

given that the flight is itself “suggestive” “of wrongdoing,” Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000).

The suspect’s decision to flee corroborates the State’s

interest in apprehending him by suggesting not only

that he is guilty of the underlying offense, see, e.g.,

United States v. Myers, 550 F.2d 1036, 1049 (5th Cir.

1977), but also that he may have even more to hide,

cf. Maryland v. Wilson, 519 U.S. 408, 414 (1997)

(“[T]he possibility of a violent encounter stems not

from the ordinary reaction of a motorist stopped for a

speeding violation, but from the fact that evidence of

a more serious crime might be uncovered during the

stop.”).

Third, hot pursuit cases often present concerns

about dissipation or destruction of evidence. See Santana, 427 U.S. at 43. Indeed, suspects may choose to

run for precisely that reason. Cf., e.g., Illinois v. McArthur, 531 U.S. 326, 332 (2001) (“police had good reason

to fear that” a suspect “suspecting an imminent

search, would, if given the chance, get rid of the drugs

fast”). Concerns about evidence recovery are particularly salient in DUI cases. For one thing, enforcing

DUI laws “requires prompt testing because it is ‘a biological certainty’ that ‘alcohol dissipates from the

bloodstream at a rate of 0.01 percent to 0.025 percent

per hour.’” Mitchell v. Wisconsin, 139 S. Ct. 2525,

2536–37 (2019) (plurality op.) (cleaned up; quoting

McNeely, 569 U.S. at 169 (Roberts, C.J., concurring in

part and dissenting in part)). “Evidence is literally

disappearing by the minute.” Id. For another, a fleeing

DUI suspect may be seeking “the opportunity to drink

alcohol in her home, thereby obscuring the source of

the alcohol” and throwing off any subsequent testing.

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

2. A fleeing suspect has significantly

diminished privacy interests.

There is little stacked on the other side of the

scales. To begin, the fleeing suspect has diminished

interests because a “proper arrest” has “been set in

motion in a public place,” Santana, 427 U.S. at 42–43,

and hot pursuit into the home to complete it works little “additional intrusion,” Bailey v. United States, 568

U.S. 186, 193 (2013). See Steagald v. United States,

451 U.S. 204, 221 (1981) (“[A]n arrest warrant alone

will suffice to enter a suspect’s own residence to effect

his arrest.”).

The fleeing suspect’s interests are further weakened by his conduct, his expectations, and the scope of

the resulting intrusion. Start with his conduct. If a

suspect chooses to wrongfully enter someone else’s

home, he has no privacy interests in that space at all.

See Rakas v. Illinois, 439 U.S. 128, 141 (1978). And if

he chooses to enter his own home, he invites the pursuing officer to follow him in, abandoning any reasonable expectation of privacy that the Fourth Amendment would otherwise provide. See, e.g., State v. Weber, 887 N.W.2d 554, 567 (Wis. 2016) (officers would

not have entered garage had suspect “chosen to stop

on the highway, or even in his driveway”). A fleeing

suspect “intentionally place[s] himself and the public

in danger,” Scott, 550 U.S. at 384, and “[i]t would be

perverse if the more wanton behavior were rewarded”

with greater constitutional protections, Mitchell, 139

S. Ct. at 2537.

Next, consider the fleeing suspect’s expectations.

He can hardly be said to have been “bothered by the

police unexpectedly while in domestic tranquility.”

Macooh v. Queen, [1993] 2 S.C.R. 802, 815 (Can.). Because he has “knowingly expose[d]” his house to police,

their entry hot on his heels should come as no surprise. Santana, 427 U.S. at 42; see also, e.g., Thomas

v. State, 658 S.E.2d 796, 801 (Ga. Ct. App. 2008) (“key”

to hot pursuit “is that the defendant is aware he is being pursued by the police”); Jewett, 31 N.E.3d at 1089;

infra pp. 31–33.

Finally, consider the minimal scope of the intrusion. Hot pursuit justifies entry “not [for] a full search

of the premises,” but only to inspect “those spaces

where a person may be found,” and for “no longer than

it takes to complete the arrest and depart the premises.” Maryland v. Buie, 494 U.S. 325, 335–36 (1990);

see also Arizona v. Gant, 556 U.S. 332, 339 (2009)

(scope of warrant requirement exception “is commensurate with its purposes”); Weber, 887 N.W.2d at 566

(“entry and apprehension” were appropriately “calculated to accomplish no more than was absolutely necessary to halt [the suspect’s] escape”).

* * *

With weighty government interests on one side,

and minimal privacy interests on the other, the hot

pursuit rule simply reflects “common sense,” as the

Supreme Court of Canada put it. Macooh, 2 S.C.R. at

816. In Macooh, that court held that police may enter

a home without a warrant in hot pursuit of a person

suspected of committing either an indictable offense

(analogous to a felony) or a provincial offense (analogous to a misdemeanor). Id. at 817–20. In so doing, the

court relied on the same interests discussed above: not

“reward[ing]” “[t]he flight of the offender”; “identify[ing] the offender”; avoiding the “[s]ignificant danger [that] may be associated with … flight”; and preventing the loss of evidence. Id. at 815–16. These rationales, the court reasoned, apply equally as to indictable and provincial offenses. Id. at 820. And they

categorically outweigh any privacy interests the fleeing suspect may retain. See id. at 822. “[A] person who

enters his house or that of someone else to get away

from the police who are pursuing him in connection

with an offence he has just committed and for which

there is a power of arrest without a warrant cannot

expect his privacy to be protected in such circumstances so as to prevent the police from making an arrest.” Id.

C. The Hot Pursuit Exception Has CommonLaw Roots.

This Court is “guided” in Fourth Amendment

cases not just by interest-balancing but also “by ‘the

traditional protections against unreasonable searches

and seizures afforded by the common law at the time

of the framing.’” Atwater, 532 U.S. at 326 (quoting Wilson v. Arkansas, 514 U.S. 927, 931 (1995)). The weight

afforded to Framing-era practice varies. To some questions, the common law provides clear answers, e.g.,

Wilson, 514 U.S. at 933; as to others, “the common-law

rule cannot be directly translated to the present day,”

Tennessee v. Garner, 471 U.S. 1, 14 (1985); see, e.g.,

Payton v. New York, 445 U.S. 573, 591 (1980) (“the

common-law rules of arrest developed in legal contexts that substantially differ from the cases now”).

This case falls somewhere in between: Although the

present-day landscape differs significantly from the

common-law map, common-law authorities generally

considered warrantless entry to be justified in hot pursuit cases.

1. As an initial matter, Lange’ s conviction would

have been upheld at common law for two threshold

reasons. First, “a warrant was not required to enter

[a] house to make [an] arrest” in the first place, according to some authorities. Santana, 427 U.S. at 43–

44 (White, J., concurring); see also Payton, 445 U.S. at

604 (White, J., dissenting); Akhil Reed Amar, Fourth

Amendment First Principles, 107 HARV. L. REV. 757,

761–63 (1994). To the contrary, “the common law had

long recognized that forcible entry of the place containing a person to be arrested was a valid part of the

arrest process, whether by warrant or without.” WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS

AND ORIGINAL MEANING 768 (2009) (citing Semayne’s

Case (1604) 77 Eng. Rep. 194 (K.B.)). Second, “[t]he

exclusionary rule … did not exist.” Collins, 138 S. Ct.

at 1676 (Thomas, J., concurring); see CUDDIHY, supra,

at 431 (citing Bishop Atterbury’s Case (1723) 16 How.

St. Tr. 323 (H.L.)).

2. In any event, hot pursuit and several other

doctrines justified warrantless entry in circumstances

resembling the modern-day hot pursuit rule.

a. Hot pursuit, as a distinct justification for warrantless entry, has “deep roots in 17th- and 18th-century English common law.” People v. Wear, 867 N.E.2d

1027, 1045 (Ill. App. Ct. 2007). There is little dispute

that constables could chase a fleeing felon into a home.

E.g., 1 JOSEPH CHITTY & RICHARD PETERS, A PRACTICAL TREATISE ON THE CRIMINAL LAW 23–31 (1819).

“[T]he common law also more generally recognized a

right to enter in hot pursuit for any misdemeanour

provided it was committed in the presence of a police

officer.” Macooh, 2 S.C.R. at 818 (citing W.F. Foster &

Joseph E. Magnet, The Law of Forcible Entry, 15

ALTA. L. REV. 271 (1977)); see also CUDDIHY, supra, at

753 (“[c]ustomary procedure” at Founding “identified

several reasons to enter … dwellings,” including “warrantless arrests during hot pursuit”).

b. Common-law authorities also recognized several related justifications for warrantless entry in connection with felony and non-felony offenses.

First, the ancient doctrine of “hue and cry” required “pursuit of suspects by local citizens,” including, where necessary, into homes. CUDDIHY, supra, at

28. By the time of the Founding, the doctrine was often codified and was regularly applied to all manner

of offenders, encompassing everything from “stolen

livestock” to “Quakers,” “jail breakers, fugitives, murders, burglars, and thieves.” Id. at 201, 246; see also

ROBERT BEVILL, A TREATISE ON THE LAW OF HOMICIDE

AND OF LARCENY AT COMMON LAW 162–63, 261 (1799)

(“hue and cry” could be raised “for … misdemeanor[s]”

and justified “break[ing] open the doors” “if the person

pursued escape[d] into a house”). The practice persisted “for years after the ratification of the Bill of

Rights in almost all of the justice of the peace manuals.” George C. Thomas III, Stumbling Toward History:

The Framers’ Search and Seizure World, 43 TEX. TECH

L. REV. 199, 227 (2010).

Second, “[f]rom time immemorial, constables and

watchmen had authority, without warrant, to arrest

those whom they saw engaged in an affray, or breach

of the peace.” City Council v. Payne, 11 S.C.L. (2 Nott

& McC.) 475, 478 (1820); see, e.g., Knot v. Gay, 1 Root

66, 66–67 (Conn. Super. Ct. 1774); see also, e.g., RICHARD BURN, THE JUSTICE OF THE PEACE 101 (1772) (“If

there be disorderly drinking or noise in a house, at an

unreasonable time of night … the constable or his

watch … may break open the doors, to see and suppress the disorder.”). And if the perpetrator fled into a

home, the constable was entitled to follow. See, e.g.,

JAMES PARKER, CONDUCTOR GENERALIS 13 (1788) (affrays); Horace L. Wilgus, Arrest Without A Warrant,

22 MICH. L. REV. 798, 802–03 (1924) (breaches of

peace); cf. 1 WILLIAM BLACKSTONE, COMMENTARIES

*356 (noting constables’ “very large [inherent] powers,

of arresting, … of breaking open houses, and the like”).

Third, a warrantless arrest could always be made

whenever a person was “lawfully arrested for any

cause, and afterwards escape[d], and shelter[ed] himself in a[] house.” PARKER, supra, at 27–29 (emphasis

added); see, e.g., Cahill v. People, 106 Ill. 621, 624–25

(1883).

To be sure, no single common-law doctrine maps

precisely onto what we now call “hot pursuit.” See

Santana, 427 U.S. at 42–43 (explaining that “hot pursuit” does not require an “extended hue and cry”); infra Part II.B.3. But they all reflect the same basic

premise: Property and privacy interests are diminished, and warrantless entry justified, if a suspect attempts to thwart civil or criminal process by fleeing

into a home.

II. A CASE-BY-CASE RULE CANNOT BE RECONCILED

WITH PRECEDENT, HISTORY, OR GOOD POLICY.

In arguing that the hot pursuit exception does not

apply to misdemeanants, Lange and California take

different tacks. Lange argues that warrant requirements can never operate categorically with respect to

the home. By his lights, hot pursuit is not a warrant

exception at all, because warrantless entry is lawful

only if other exigencies are also present. California,

meanwhile, acknowledges that hot pursuit is a categorical exception to the warrant requirement where

the underlying offense is a felony. But if the underlying offense is a misdemeanor, California agrees with

Lange that a case-specific showing of some other exigency is required.

Neither hits the mark. Lange’s frontal attack on

categorical exceptions cannot be reconciled with this

Court’s precedents. And his insistence that interests

must be balanced in each case ignores that the defining feature of every hot pursuit case—the suspect’s

flight itself—is dispositive. California’s attempt to distinguish between felons and misdemeanants fares no

better. The constitutionality of a search or seizure

should not turn on the happenstance of (or invite the

manipulation of) a particular jurisdiction’s labeling

scheme. And a felony–misdemeanor distinction would

be both unworkable and arbitrary anyway.

As a last resort, Lange, California, and their amici

comb the casebooks for fact patterns they claim

demonstrate the dangers of a categorical hot pursuit

exception. But many of their cases do not even involve

hot pursuit. And in those that do, it is misconduct

(usually involving excessive force), not the hot pursuit

rule, that is to blame. The truth is that jurisdictions

like California and Canada have long recognized that

hot pursuit categorically justifies warrantless entry,

and no horribles have gone on parade. Although

States are free to adopt a more restrictive rule if they

so choose, the Constitution does not require them to

allow suspects to defeat lawful public arrests by fleeing inside homes.

A. Many Exceptions to the Warrant

Requirement—Including

for

Hot

Pursuit—Operate Categorically.

Precedent, traditional interest-balancing, and the

common law all belie Lange’s suggestion (at 7, 10–26)

that every warrantless home entry—including those

based on felony hot pursuit—must be justified on a

case-by-case basis.

1. This Court’s decisions establish that

the hot pursuit exception, like

several other warrant-requirement

exceptions, is categorical.

Lange distorts this Court’s Fourth Amendment jurisprudence beyond recognition in asserting that

there can be no categorical exceptions to the warrant

requirement for home entries. That is simply untrue.

This Court has always treated hot pursuit categorically. And its approach to hot pursuit mirrors its

bright-line treatment of other exceptions to the warrant requirement, including exceptions that apply to

the home. The out-of-context quotations on which

Lange relies are not to the contrary.

a. Santana itself makes clear that the hot pursuit exception applies categorically. Its holding—that

the “act of retreating into [a] house” cannot “thwart an

otherwise proper arrest,” 427 U.S. at 42—was unqualified. Supra pp. 10–11. And Lange’s suggestion (at 24–

25) that the decision turned on a case-specific risk of

evidence destruction ignores the Court’s plain statement that hot pursuit was itself “sufficient to justify

the warrantless entry into Santana’s house.” Santana,

427 U.S. at 43 (emphasis added). Yes, the Court also

mentioned the potential for evidence destruction—a

risk present in many hot pursuit cases. Id.; see also

supra p. 17. But that was an additional reason why

warrantless entry was justified, not an independent

requirement. Santana, 427 U.S. at 42–43 (“Once Santana saw the police, there was likewise a realistic expectation that any delay would result in destruction

of evidence.” (emphasis added)).2

Since Santana, this Court has repeatedly described hot pursuit in categorical terms. In Steagald,

for example, the Court explained that “a warrantless

entry of a home would be justified if the police were in

‘hot pursuit’ of a fugitive.” 451 U.S. at 221 (citing Santana, 427 U.S. at 42–43). And in many other decisions,

the Court has noted that hot pursuit or case-specific

exigencies can justify warrantless entry. See, e.g., Olson, 495 U.S. at 93, 100; supra pp. 10–11.

California reads those decisions that way, conceding that hot pursuit is categorical at least for felonies.

Cal. Br. 12–15. And it is not alone. Lower courts apply

the hot pursuit exception categorically. See id. at 14

n.10 (citing cases); see also, e.g., United States v. Cruz,

977 F.3d 998, 1009–10 (10th Cir. 2020); Trent v. Wade,

776 F.3d 368, 381–82 (5th Cir. 2015); Magruder v.

United States, 62 A.3d 720, 724–25 (D.C. 2013); Ricci,

739 A.2d at 407. Treatise writers see it that way too.

See, e.g., 3 WAYNE R. LAFAVE, SEARCH & SEIZURE

§ 6.1(d) (6th ed. Sept. 2020); Dale Joseph Gilsinger,

Annotation, When Is Warrantless Entry of House or

2 Lange suggests (at 24–25) that Warden v. Hayden, 387 U.S.

294 (1967), which predated Santana, supports a case-specific approach. Although the circumstances in Hayden implicated familiar law enforcement interests, that case did not involve a “true

‘hot pursuit.’” Santana, 427 U.S. at 42–43 & n.3.

Other Building Justified Under “Hot Pursuit” Doctrine, 17 A.L.R. 6th 327, § 2 (2006).

b. There is nothing anomalous about categorical

exceptions to the warrant requirement, in the context

of home entry or otherwise. Categorical exceptions are

based on across-the-board assessments of the interests at stake and, accordingly, “do not require an assessment of whether the policy justifications underlying the exception … are implicated in a particular

case.” McNeely, 569 U.S. at 150 n.3. Such categorical

assessments are justified where important government interests will predictably arise, see Gant, 556

U.S. at 338, or where it would be unreasonable to expect officers to balance interests in the heat of the moment, Atwater, 532 U.S. at 347.

Take the exception for searches incident to arrest.

That exception balances strong “interests in officer

safety and evidence preservation that are typically

implicated in arrest situations” against an arrestee’s

diminished interest in privacy. Gant, 556 U.S. at 338.

Because arresting officers must make “quick ad hoc

judgment[s],” the exception applies to all arrests—regardless “what a court may later decide was the probability in a particular arrest situation that weapons or

evidence would in fact be found.” United States v. Robinson, 414 U.S. 218, 235 (1973). Arrests inside the

home are treated no differently. E.g., Chimel v. California, 395 U.S. 752, 766 (1969); see Buie, 494 U.S. at

333–36 (protective sweep justified as well).

The automobile exception is another example. It

follows from a categorical judgment about law enforcement and privacy interests relating to vehicles.

See California v. Carney, 471 U.S. 386 (1985). The

strength of those interests may vary in any particular

case, such as when a vehicle is being used as a home.

But a bright-line rule is necessary all the same to “ensure that law enforcement officials are not unnecessarily hamstrung.” Id. at 393–94.

Officers’ authority to arrest suspects in public

without a warrant is likewise categorical. Warrantless

arrest authority exists for both felonies (Watson) and

misdemeanors (Atwater). And it “applie[s] to all arrests, without the need to ‘balance’ the interests and

circumstances involved in particular situations.” Atwater, 532 U.S. at 354 (quoting Dunaway v. New York,

442 U.S. 200, 208 (1979)).

Lange acknowledges that these exceptions are

categorical, but he insists that exceptions applicable

to the home cannot work the same way. Lange Br. 21–

23. Although Lange is certainly right to point out that

privacy interests are generally weightier in homes

than in cars or public spaces, that speaks only to how

interests should be balanced in assessing any particular exception—not whether they can be balanced categorically. This Court has never endorsed a categorical rule against categorical rules, whether in the context of the home or otherwise. To the contrary, it has

recognized a number of circumstances that, where

present, categorically justify warrantless home entry.

“[V]oluntary consent of an individual possessing

authority,” for instance, is always sufficient to justify

a warrantless entry. Georgia v. Randolph, 547 U.S.

103, 109 (2006). Determining whether an individual

has voluntarily consented may require a case-specific

analysis. But once such consent is tendered no further

showing is necessary.

An officer’s right to accompany an arrestee who

asks to return to his home is similarly clear-cut. Washington v. Chrisman, 455 U.S. 1, 6–7 (1982). No showing of “exigent circumstances” is required, and “the

nature of the offense for which the arrest was made”

is irrelevant. Id. Regardless the facts of any particular

case, “[e]very arrest must be presumed to present a

risk of danger to the arresting officer”—particularly

since “[t]here is no way for an officer to predict reliably

how a particular subject will react to arrest,” “the degree of the potential danger,” or “the possibility that

an arrested person will attempt to escape.” Id. at 7.

Other exigency-related circumstances can also

suffice, without more, to make “warrantless entry

onto private property” reasonable. Brigham City, 547

U.S. at 403. In particular, officers can enter a home

without a warrant where there is a need for emergency assistance, e.g., Michigan v. Fisher, 558 U.S. 45,

47–48 (2009) (per curiam), or to put out a fire, Tyler,

436 U.S. at 509–10. To be sure, a case-specific inquiry

may be required to determine whether there was a

need to provide emergency aid or put out a fire in the

first place. But once such an exigency is established,

nothing more is required.

c. Lange constructs his alternate Fourth

Amendment universe primarily from out-of-context

quotations. In particular, Lange repeatedly quotes

Birchfield, 136 S. Ct. at 2180, for the proposition that

exigency “always requires case-by-case” interest-balancing. Lange Br. 2, 7, 11. That is not what Birchfield

says. Again, courts may need to assess case-specific

facts to determine whether a “traditional exception to

the warrant requirement” (like hot pursuit) applies.

McNeely, 569 U.S. at 150 n.3. If one does not, Birchfield makes clear that a “case-by-case determination”

is necessary to determine whether other exigent circumstances nevertheless justified the entry. 136 S. Ct.

at 2180. But if one does, the Fourth Amendment is

satisfied. No case-specific interest-balancing or additional justification is required. See supra p. 29. Indeed, Birchfield itself acknowledged that “the warrantless entry of private property” is permitted “when

police are in hot pursuit of a fleeing suspect.” 136

S. Ct. at 2173.

Lange’s two supposed counterexamples—deadly

force and knock-and-announce, see Lange Br. 20–21—

are not to the contrary. “The intrusiveness of a seizure

by means of deadly force is unmatched.” Garner, 471

U.S. at 18. And society has a critical, centuries-old interest in “judicial determination of guilt and punishment.” Id. at 9 (emphasis added). For those reasons,

the Court in Garner rejected “the [old] rule that

deadly force may be used against any fleeing felon,”

instead requiring case-specific justifications for that

most drastic of measures. Id. at 18. The hot pursuit

rule, by contrast, merely prevents suspects from evading lawful public arrests, see Santana, 427 U.S. at 43,

thereby promoting judicial determination of guilt and

punishment.

The knock-and-announce rule is no help to Lange,

either. In Richards v. Wisconsin, 520 U.S. 385, 387–88

(1997), this Court rejected the proposition that “police

officers are never required to knock and announce

their presence when executing a search warrant in a

felony drug investigation.” Such a categorical rule, the

Court concluded, would “contain[] considerable overgeneralization” because, for example, officers could

choose to search “when the only individuals present in

a residence have no connection with the drug activity.”

Id. at 393. The hot pursuit exception is different. It

requires no “overgeneralization” because it is the suspect’s flight that both triggers and justifies the exception. Supra pp. 13–19. And whereas in the knock-andannounce context police can come prepared, and in

numbers, officers in hot pursuit must make difficult

decisions quickly and cannot mitigate risks in advance.

2. Case-specific interest-balancing is

inappropriate in hot pursuit cases.

Lange argues that hot pursuit justifies warrantless entry only if some other case-specific emergency

leaves no time to seek a warrant. Lange Br. 13–17.

But as already explained, a suspect’s flight itself implicates strong government interests, diminishes personal privacy interests, and leaves officers with no

time to conduct case-specific analyses or wait for a

warrant. Supra pp. 13–19. Accordingly, hot pursuit

entries are categorically reasonable, regardless of

whether a particular flight-based risk ultimately materializes in a particular case.

Lange’s efforts to minimize the strong public interest in discouraging flight fall flat. Lange first argues that that interest cannot support an across-theboard exception because it is implicated “only in the

subset of cases where the suspect knows he is being

pursued by police.” Lange Br. 36–37. But that’s the

whole set. Hot pursuit occurs only where a reasonable

person in the fleeing suspect’s shoes would know the

police were pursuing him. See, e.g., Thomas, 658

S.E.2d at 801; cf. Michigan v. Chesternut, 486 U.S. 567,

573–74 (1988) (test for seizure is whether “a reasonable person would have believed that he was not free to

leave”).3

Lange further contends that criminal sanctions

for disobeying the police are sufficient to discourage

flight. Lange Br. 37. But if that were true, we would

not be here. Hot pursuit occurs precisely because (and

only when) suspects do attempt to evade detention,

notwithstanding the criminal consequences that may

follow. One can reasonably assume that they do so because they believe the possibility of escape or the

chance to destroy evidence is worth the risk of additional sanctions.

Finally, Lange’s case-by-case rule ignores the need

for “readily administrable” bright-line rules where officers must act “on the spur (and in the heat) of the

moment.” Atwater, 532 U.S. at 347; see, e.g., Riley, 573

U.S. at 398; Robinson, 414 U.S. at 234–35. Categorically balancing the relevant interests gives officers

the “‘clear and unequivocal’ guidelines” they need to

do their jobs. California v. Acevedo, 500 U.S. 565, 577

(1991). Lange’s rule, in contrast, would force officers

to make split-second decisions based on rapidly unfolding facts, turning “every discretionary judgment

3 Even when they do not address this objective awareness-

of-pursuit requirement, lower court decisions are nearly uniformly consistent with it. See, e.g., City of Bismarck v. Brekhus,

908 N.W.2d 715, 719–21 (N.D. 2018); Jewett, 31 N.E.3d at 1089;

City of Middletown v. Flinchum, 765 N.E.2d 330, 332 (Ohio 2002);

United States v. Jones, 204 F.3d 541, 542–43 (4th Cir. 2000). The

one allegedly contrary case Lange cites (at 33), State v. Ionescu,

937 N.W.2d 90 (Wis. Ct. App. 2019), involved flight from a crime

scene, not from a pursuing officer, id. at 91–92.

in the field … into an occasion for constitutional review” and potential civil liability. Atwater, 532 U.S. at

347, 350.

3. The

common

law

recognized

categorical justifications, including

hot pursuit, for warrantless entry of

a home.

Lange’s assault on categorical exceptions lacks

any common-law footing. Common-law authorities are

rife with categorical justifications for warrantless

searches and entries. See, e.g., CUDDIHY, supra, at 768

(search incident to arrest). Indeed, California concedes that “[t]he founding-era history supports a categorical hot-pursuit exception for suspected felons.”

Cal. Br. 18; see also, e.g., 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN 583 (1736). And

while the precise boundaries of doctrines like “hue and

cry” and “breach of the peace” may be fairly debatable,

see supra pp. 22–23, their categorical application is

not.

Nor is their applicability to the home—notwithstanding Edward Coke’s oft-quoted “adage” that a

man’s home is a castle. See, e.g., WILLIAM J. NOVAK,

THE PEOPLE’S WELFARE 157 (1996) (describing that

saying as “[o]ne of the most sacred and enduring

myths in Anglo-American constitutionalism”); see also

Wilgus, supra, at 800 (adage “applies [only] to civil

process”). Constables historically possessed “very

large powers, of arresting, … of breaking open houses,

and the like,” BLACKSTONE, supra, at *356, and their

practice, often codified, illustrated the boundaries of

the common law, CUDDIHY, supra, at 417; see also, e.g.,

1 LAWS OF THE COMMONWEALTH OF PENNSYLVANIA ch.

DCXXXVI (1771) (J. Bioren ed. 1810) (watchmen

could arrest “all night-walkers, malefactors, rogues,

vagabonds and disorderly persons”).4 And constables

exercised their broad powers pursuant to many categorical rules. See supra pp. 21–23.

B. The Hot Pursuit Exception

Limited to Felonies.

Not

California, unlike Lange, accepts that the hot pursuit exception is categorical. But California joins

Lange in contending that it should apply only to suspected felons. That limitation finds no support in precedent, interest-balancing, or history.

1. There is no precedential basis for a

felony–misdemeanor distinction in

the hot pursuit context.

This Court’s decisions provide no support for distinguishing between misdemeanor and felony hot pursuits. Supra pp. 10–13. The rule is simply that “a suspect may not defeat an arrest” by fleeing into a home.

Santana, 427 U.S. at 43. “[T]hough Santana involved

a felony suspect, [it] did not expressly limit [its] holding based on that fact.” Stanton, 571 U.S. at 9. And

Scher, 305 U.S. 251, did not even mention whether the

underlying offense was a felony or misdemeanor.

4 For example, one officer in 1691 Massachusetts asserted

the inherent authority “to search an entire town” house by

house—without a warrant—for two women who had escaped

home confinement. CUDDIHY, supra, at 416. Two centuries later,

two officers in Massachusetts argued successfully that they had

the statutory authority to enter and arrest—without warrant or

invitation—a woman who was “intoxicated,” and thus “committing a breach of the peace,” “in a dwelling house where she resided.” Ford v. Breen, 173 Mass. 52, 53 (1899).

The line between felonies and misdemeanors is irrelevant for other exceptions to the warrant requirement as well. See supra pp. 25–29. Indeed, Atwater

specifically rejected a felonies-only rule for warrantless public arrests. 532 U.S. at 345–54. The causal

link between public arrests and hot pursuits—i.e.,

that hot pursuits begin when public arrests are

thwarted—makes that holding all the more applicable

here. Supra pp. 10–13.

The sole precedential hook for the felony limitation (and thus the circuit split) appears to be Welsh v.

Wisconsin. See, e.g., State v. Markus, 211 So. 3d 894,

907–09 (Fla. 2017). At issue there was the constitutionality of a “warrantless, nighttime entry into

[Welsh’s] home to arrest him for a civil traffic offense.”

Welsh, 466 U.S. at 754. It all started when a trucker

saw Welsh driving erratically before coming “to a stop

in an open field” and asked a passerby to call the police.

Id. at 742. Welsh walked away before the police arrived. See id. But after running the car’s plates, police

determined that Welsh, the registered owner, lived

“within walking distance.” Id. And “[w]ithout securing

any type of warrant,” they entered the home, found

Welsh “lying naked in bed,” and arrested him for a vehicular infraction. Id. at 743.

As those facts should make clear, Welsh “did not

involve hot pursuit” at all. Stanton, 571 U.S. at 8. To

the contrary, the Court acknowledged that “hot pursuit” is an “exception[] to the warrant requirement”

that authorizes “arrests in the home,” but held that

the exception did not apply “because there was no immediate or continuous pursuit of the petitioner from

the scene of a crime.” Welsh, 466 U.S. at 749–50, 753.

Only then did the Court conduct a case-specific exigency analysis, in which “the gravity of the underlying

offense”—a mere “civil traffic offense”—played a role.

Id. at 753–54. “[N]othing in [Welsh] establishes that

the seriousness of the crime is equally important in

cases of hot pursuit.” Stanton, 571 U.S. at 9 (emphasis

in original).

2. Interest-balancing does not support a

misdemeanor limitation.

The fact that an offense is labeled a misdemeanor

rather than a felony does not alter the balance of interests in hot pursuit cases. “[T]here is no logical connection between the fact that an offence falls in one or

the other of these categories and the need there may

be to make an arrest in hot pursuit in residential

premises.” Macooh, 2 S.C.R. at 819. And an offense’s

classification has no impact whatsoever on the privacy

side of the scale.

a. California’s unsupported assertion (at 26)

that suspected misdemeanants implicate lessened law

enforcement interests because they are less likely to

flee misses the point: Every hot pursuit case involves

a suspect who has decided to flee. So the relevant set

of suspects is not all misdemeanants, but only the fleeing ones. Once this fundamental denominator problem is corrected, many of California’s arguments collapse. Indeed, the choice to flee is at least arguably

more indicative of heightened law enforcement interests—such as the suspect’s propensity for violence,

willingness to destroy evidence, or likelihood of

guilt—in the misdemeanor context. If the consequences of submission are less serious, that only

makes the suspect’s choice more suspicious. See supra

pp. 16–17.

Similarly, only by ignoring flight can California

suggest (at 26) that an individual who has stolen a $15

phone charger is unlikely to destroy it while police

seek a warrant. That might be true as to a charger

thief who does not flee, like the culprit in the case California cites. See Smith v. Stoneburner, 716 F.3d 926,

931 (6th Cir. 2013) (“neither a ‘pursuit’ nor ‘hot’”). But

there is likely more to the story when that individual

decides to run the risk of additional criminal penalties

associated with flight rather than own up to a minor

shoplifting offense.

Lange’s case is illustrative: Had Lange merely

been playing loud music and honking for no reason,

any consequences—had he simply pulled over—would

surely have been minor. See Pet.App.2a. But it was

not fear of a “loud music” citation that kept Lange’s

foot on the gas. It was his desire to avoid the more serious consequences of a repeat DUI offense. And

Lange’s case—along with the serious dangers it presents to other motorists—is not unique. See, e.g.,

Gilsinger, supra, § 12 (collecting cases).

b. The suggestion that States always have lesser

interests in apprehending misdemeanants, see, e.g.,

Br. for Illinois et al. 4–8, likewise misses the mark.

The law enforcement interests supporting the hot pursuit exception relate to flight, not the underlying offense. Supra pp. 10–13. And “the assumption that a

‘felon’ is more dangerous than a misdemeanant” is

“untenable” anyway. Garner, 471 U.S. at 14. The distinction between felonies and misdemeanors “is minor

and often arbitrary,” and “numerous misdemeanors

involve conduct more dangerous than many felonies.”

Id.; cf. Atwater, 532 U.S. at 347–49 (rejecting assumption that only certain types of offenders will “pose a

danger”).

The codebooks bear that out. Driving under the

influence, often a misdemeanor, kills with “chilling”

frequency. Mitchell, 139 S. Ct. at 2535–36. Serious assault, battery, domestic-violence, and weapons-related offenses may be charged as misdemeanors too.

See, e.g., Br. for the United States at Apps. B & C,

Voisine v. United States, 136 S. Ct. 2272 (2016) (No.

14-10154); Cal. Penal Code §§ 171c, 241, 241.3,

243.25, 417, 417.4. Many felony offenses, such as producing a spurious heir, Cal. Penal Code § 156, marriage by false personation, id. § 528, or borrowing

funds from a fraternal benefit society, Cal. Ins. Code

§ 11162, certainly present no greater exigency. See

also infra App.

c. On the other side of the scales, neither Lange

nor California even attempts to argue that fleeing

misdemeanants have greater privacy interests than

fleeing felons. For good reason: A misdemeanant who

chooses to evade arrest by fleeing into a home has no

greater interest in the privacy of that space than does

a felon who makes the same choice. See supra pp. 18–

19.

3. The felony–misdemeanor

unworkable and arbitrary.

line

A hot pursuit exception applicable only to felonies

would be difficult for officers to apply, produce inconsistent results, and be readily circumventable.

a. “[T]he highly technical felony/misdemeanor

distinction is … difficult”—and oftentimes impossi-

ble—“to apply in the field.” Garner, 471 U.S. at 20. Police officers are not lawyers, much less walking codebooks. They cannot be expected to know by heart “the

details of frequently complex penalty schemes.” Atwater, 532 U.S. at 348 (citing Berkemer v. McCarty, 468

U.S. 420, 431 n.13 (1984)). And even an officer with

perfect statutory recall still would struggle to accurately classify offenses on the fly. State law often

makes penalties for “ostensibly identical conduct …

vary on account of facts difficult (if not impossible) to

know at the scene of an arrest.” Atwater, 532 U.S. at

348–49 & nn.18–20; see, e.g., Cal. Health & Safety

Code § 11360 (classifying a drug-related offense as a

felony, misdemeanor, or infraction based on drug

quantity, age of offender, and offender’s prior convictions); Cal. Penal Code §§ 486–490.1 (classifying theft

as one of four offenses—infraction, misdemeanor, wobbler, or felony—depending on value of stolen item).

Moreover, a single course of conduct may “implicate

more than one criminal prohibition,” including both a

misdemeanor and a felony. Atwater, 532 U.S. at 348–

49 & n.20.

And that is only the half of it. Some States have

what Californians call “wobblers”: offenses that can be

charged as either felonies or misdemeanors depending

on the prosecutor’s prerogative, judicial discretion, or

the presence of certain aggravating factors. Ewing v.

California, 538 U.S. 11, 16–17 (2003); see infra App.

(identifying classifications of many California offenses). That means that, in some cases, whether an

offense is a felony or a misdemeanor will not be determined until sentencing. See Cal. Penal Code

§ 17(b)(1). In other States, offenses are classified by

degree, rather than as felonies or misdemeanors. See,

e.g., N.J. Stat. Ann. § 2C:1-4 (classifying offenses as

crimes of the first, second, third, or fourth degree, or

as disorderly persons offenses); Me. Stat. tit. 17-A, § 4

(classifying offenses other than murder as Class A

through E offenses). In such jurisdictions, a misdemeanor–felony line makes no sense at all.

b. A felony-only hot pursuit rule would also

make “the search and seizure protections of the

Fourth Amendment” “vary” from State to State,

Whren v. United States, 517 U.S. 806, 815 (1996),

based solely on the crime-labeling regime each State

happens to select. States classify similar misconduct

differently. Compare, e.g., Cal. Penal Code § 148.9

(classifying false representation as a misdemeanor),

with Ala. Code § 13A-8-194 (classifying false representation as a felony). Indeed, Lange’s vehicular flight

likely would have been classified as a felony in many

states. See, e.g., Fla. Stat. § 316.1935; Del. Code Ann.

tit. 21, § 4103. The fact that he was driving in California rather than Delaware should not change the constitutional analysis.

c. Finally, a felony-only rule would be easily circumventable. States desiring a broad rule would need

only to classify all flight from a crime scene or an officer’s lawful order to stop as a felony, and voilà!: no

Fourth Amendment violation. That is not how constitutional rights are supposed to work. See, e.g., Bd. of

Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 679–80

(1996) (for “constitutional claims,” Court has “consistently eschewed” “formal distinctions, which can be

manipulated”).

4. The common law does not support

limiting the hot pursuit exception to

felonies.

Lange and California rely on out-of-context treatise statements to suggest that the common law limited hot pursuit to felonies. It did not.

For starters, neither Lange nor California identifies any common-law analog for the modern-day felony–misdemeanor line. Nor could they: At common

law, the term “felony” was generally reserved for capital crimes, Garner, 471 U.S. at 13–14, and the term

“misdemeanor” reached “many very serious crimes,

such as kidnaping and assault with the intent to murder or rape,” Johnson v. United States, 559 U.S. 133,

149–50 (2010) (Alito, J., dissenting). Those categories

bear little resemblance to today’s complex taxonomies.

Moreover, Lange and California identify no authority affirmatively showing that “the Fourth

Amendment, as originally understood, forbade peace

officers” from making warrantless entries in cases like

Lange’s. Atwater, 532 U.S. at 340 (emphasis added).

Instead, they rely primarily on negative inferences

from stray treatise statements about what officers

were allowed to do under various common-law doctrines that justified hot pursuit into a home. See, e.g.,

Lange Br. 29–30; Cal. Br. 19–21. That is not enough

to establish a common-law consensus—particularly

given that individual treatise writers may have had

their own views and agendas. See CUDDIHY, supra, at

115–21 (explaining how Coke “distorted” cases “to suit

his theoretical purposes,” including with respect to

“forcible entry” and “felonies”); cf. Atwater, 532 U.S. at

328 (noting that “common-law commentators …

reached divergent conclusions” on the same subject).

In any event, common-law doctrines permitting

warrantless entry into a home, see supra pp. 21–23,

developed to cover many crimes that would be classified as misdemeanors today. For instance, breach of

the peace covered “blowing [a] horn on the streets …

after 10 o’clock at night,” Lentz v. Raum, 21 Pa. D.

1116, 1117 (Pa. Ct. Com. Pl. 1912), or “shouting in a

village street at night so as to be heard 150 feet away,”

Horace L. Wilgus, Arrest Without A Warrant, 22 MICH.

L. REV. 541, 575 (1924) (citing People v. Johnson, 48

N.W. 175, 870–71 (Mich. 1891))—perhaps the best

olden-days equivalents of Lange’s conduct here. And

escaped arrestees could be pursued regardless of their

crimes. See supra p. 23. At a minimum, these doctrines “riddle [any] supposed common-law rule with

enough exceptions to unsettle any contention … that

it would necessarily have been unreasonable” to enter

a home without a warrant while in hot pursuit of a

misdemeanant. Atwater, 532 U.S. at 335.

C. Lange’s

and

California’s

Arguments Lack Merit.

Policy

Limiting hot pursuit will impede effective policing—and for naught, as the abuses with which Lange

and California are concerned are not actually attributable to hot pursuit.

1. Limiting the hot pursuit exception

would hinder effective policing.

Restricting hot pursuit entries would take an important policing tool from officers’ toolkits. And

Lange’s proposed alternatives—knocking and seeking

consent or waiting for a warrant, Lange Br. 35–36—

are poor substitutes.

First of all, “[s]ince the suspect knows what the

police are attempting to do,” there would be “little purpose” in knocking. Bodine v. Warwick, 72 F.3d 393, 399

(3d Cir. 1995) (Alito, J.). Why would a suspect in flight

“simply … turn[] around and open[] the door” for the

pursuing officer? Weber, 887 N.W.2d at 567. This

Court has previously recognized that “it would be a

‘senseless ceremony’ to require an officer in pursuit of

a recently escaped arrestee to make an announcement

prior to breaking the door to retake him.” Wilson, 514

U.S. at 936. So too here.

A warrant is not an adequate alternative either.

Contrary to Lange’s contention (at 36), it almost always takes far longer than five minutes to secure a

warrant. “Processing times,” California acknowledges,

“can vary depending on … the availability of a magistrate,” the time of day, and other factors. Cal. Br. 33–

34 & n.26. And only “sometimes” can warrants “be obtained in under an hour.” Id. “[S]treamline[d]” “standard-form warrant applications” may be available for

run-of-the-mill blood draws of DUI suspects in custody. McNeely, 569 U.S. at 155. But in a pursuit case,

the officer’s affidavit would have to provide “[s]ufficient information” to allow a magistrate “to determine

probable cause.” Illinois v. Gates, 462 U.S. 213, 239

(1983). Officers without backup—like Officer Weikert

here—can hardly take their attention away from the

scene to compose a competent warrant affidavit.

In the meantime, dangers and complications multiply. The suspect may retrieve a firearm, or even summon armed help. See, e.g., State v. Davis, 768 So. 2d

201, 206 (La. Ct. App. 2000) (suspect “reached for a

handgun” inside); Thompson v. City of Florence, No.

3:17-cv-01053, 2019 WL 3220051, at *4 (N.D. Ala. July

17, 2019) (at fleeing suspect’s urging, resident

grabbed a loaded handgun). Or the suspect may exit

the back door, blend into the crowd at a party, or disappear behind another door inside a residential building. And destroying evidence can be the work of as little as “15 to 20 seconds.” King, 563 U.S. at 460 n.3; see

also, e.g., Legg, 633 N.W.2d at 772.

2. A categorical hot pursuit rule will not

contribute to police abuse.

Accepting the costs of a case-by-case hot pursuit

rule would yield few benefits. Lange and California

assert that such a rule will prevent abuse and decrease racial disparities. But those interests, while

weighty, are not directly implicated by misdemeanor

hot pursuit. To the extent any State or police department disagrees, it is free to limit the circumstances in

which officers may pursue suspects as a matter of

state law or departmental policy.

a. Lange contends that hot pursuit entries

“risk[] confrontations that can end in tragedy.” Lange

Br. 37, 42. But any home entry—with or without a

warrant—can result in trauma or tragedy where individuals are armed or police use excessive force. See,

e.g., Z.J. ex rel. Jones v. Kan. City Bd. of Police

Comm’rs, 931 F.3d 672, 677 (8th Cir. 2019) (police with

warrant for wrong home threw a flash-bang grenade

inside before homeowner could open the door, traumatizing toddler); Wells v. City of Dearborn Heights, 538

F. App’x 631, 633–35 (6th Cir. 2013) (dog shot and

homeowner beaten and tased during execution of

search warrant). The same could be said of traffic

stops and other interactions between citizens and police.

Lange’s and his amici’s cases—drawn from a

skewed sample, because unremarkable cases are unlikely to appear in 42 U.S.C. § 1983 decisions—do not

show that hot pursuit entry causes the harms they decry. Indeed, many of Lange’s cases (at 42–43) do not

involve hot pursuit at all. In one, officers entered a

home at night to search for a taxi-fare evader. Luer v.

St. Louis County, No. 4:17-cv-00767, 2018 WL

6064862, at *5 (E.D. Mo. Nov. 19, 2018). In another,

the officer “acknowledge[d] he saw no evidence of

criminal wrongdoing” yet “rushed onto the property”

anyway after someone in the driveway asked who he

was. Est. of Sauceda v. City of North Las Vegas, 380 F.

Supp. 3d 1068, 1074, 1081 (D. Nev. 2019). And in a

third, officers did not witness the misdemeanor and

the suspect had already left the scene when they arrived. Franklin v. City of South Bend, No. 3:13-cv-207,

2015 WL 5174060, at *1, 6 (N.D. Ind. Sept. 3, 2015).

Most of those cases that do involve hot pursuit are

“egregious” not for that reason, but rather because officers used excessive force. See, e.g., Mascorro v.

Billings, 656 F.3d 1198, 1202–04 (10th Cir. 2011) (affirming denial of qualified immunity on use of excessive force claim); Carroll v. Ellington, 800 F.3d 154,

163–66 (5th Cir. 2015) (recounting egregious use of

force separate from officer’s entry). Excessive force is

excessive (and unconstitutional) wherever it occurs.

Cf. County of Los Angeles v. Mendez, 137 S. Ct. 1539,

1547–49 (2017) (courts must assess harms as proximately caused by particular Fourth Amendment violations). And Lange has not shown that officers with a

propensity for using excessive force are likely to be deterred by a case-specific rule addressing a different issue.

Still other cases involve unreasonable behavior by

the suspect or residents. In Thompson, for example,

police repeatedly displayed badges and identified

themselves while attempting to apprehend a man

they had just seen urinating in public. But the offender responded that “that badge don’t mean shit to

me,” and his partner drew a gun and called 911 to complain about “two black men ‘posing as police officers.’”

2019 WL 3220051, at *3–4 & n.4.

Having failed to identify real cases of police abuse

caused by hot pursuit, Lange tries to hypothesize

some instead. Lange Br. 39–40. But police are permitted to “tail a suspect” or “lure a known suspect out of

his house.” Id. at 39. And the hot pursuit rule allows

an officer to follow the suspect into a home only if he

refuses to stop and a reasonable person in his shoes

would know police were pursuing. See supra pp. 31–

32 & n.3. Moreover, police who gin up false pursuits

risk disciplinary consequences up to and including

criminal prosecution. See United States v. Corder, 724

F. App’x 394, 397–98 (6th Cir. 2018) (affirming officer’s

conviction).

All told, Lange’s and his amici’s surveys of cases,

plus their active imaginations, have produced only

non–hot pursuit cases and cases in which any harm is

attributable to excessive force or other unreasonable

behavior. Just as in Atwater, there is “a dearth of horribles demanding redress.” 532 U.S. at 353. And just

as in Atwater, isolated instances of bad behavior

should not drive the constitutional rule. Id.

b. Lange’s bootstrapping concerns are similarly

overblown. Lange first contends that a categorical

rule would allow mere Terry stops “to escalate into …

warrantless entr[ies]” because all States make resisting apprehension a crime. Lange Br. 38. But there is

no risk of escalation unless the suspect chooses to flee.

Even then, the order initiating the Terry stop must

rest on an “individualized suspicion” of “a particular

crime” in the first place, Kansas v. Glover, 140 S. Ct.

1183, 1190 n.1 (2020), because the State cannot criminalize failure to stop where such suspicion is lacking,

see Brown v. Texas, 443 U.S. 47, 52–53 (1979).

Lange further suggests that the probable cause

standard will allow entry “even if it turns out the citizen did not realize the officer was trying to make a

stop.” Lange Br. 38–39. Again, however, hot pursuit

requires that a reasonable person in the suspect’s

shoes would know he was being pursued. Supra

pp. 31–32 & n.3. And any difference between the reasonable suspect and the actual one is, at best, a complaint about the probable cause standard itself. Here,

too, Lange’s case is illustrative. A motorist is expected

to pull over “when he sees a policeman’s light flashing

behind him.” Berkemer, 468 U.S. at 437. And Officer

Weikert could have reasonably presumed that Lange

saw his signal to stop. If Lange was too inebriated to

see those flashing lights, that only underscores the

strong public interest in pursuing him.

c. Lange also argues that the costs of a categorical hot pursuit rule will be borne disproportionately

by “communities that already bear the brunt of discretionary enforcement of misdemeanor laws.” Lange Br.

37. Concerns about racial and other disparities in law

enforcement are serious, and may provide reason to

question the proliferation of criminal offenses making

“virtually everyone … guilty.” Whren, 517 U.S. at 818.

But that is a subject for legislative change or other reforms, not evidence of any defect inherent in hot pursuit doctrine.

d. In the end, Lange and California offer a solution in search of a problem. As California concedes,

there is no evidence of increased police abuse in jurisdictions with categorical misdemeanor pursuit rules.

Cal. Br. 23 n.17. And California would know, since it

has long had a categorical misdemeanor pursuit rule.

See Lloyd, 216 Cal. App. 3d at 1428–30.

To the extent States supporting Lange are still

concerned, they are free to limit hot pursuit entries—

based on the classification of the underlying offense or

otherwise—as a matter of state law. Statutes and regulations, rather than constitutional doctrine, are the

appropriate vehicles for nuanced policy judgments of

that sort. See Atwater, 532 U.S. at 352 (“It is of course

easier to devise a minor-offense limitation by statute

than to derive one through the Constitution.”). Indeed, some police departments have already adopted

policies instructing officers to abandon pursuits in certain circumstances. See Br. of Illinois et al. 12–14. The

existence of those policies only confirms that this

Court need not constitutionalize Lange’s or California’s preferred approach. See Atwater, 532 U.S. at

351–52 (citing state laws “limiting warrantless arrests for minor offenses” as reason to doubt that “warrantless misdemeanor arrests need constitutional attention”).

III. IN THE ALTERNATIVE, THE COURT SHOULD

AFFIRM THE JUDGMENT BELOW EVEN UNDER A

CASE-SPECIFIC APPROACH.

The Court should affirm the judgment of the California Court of Appeal even if it holds that the hot

pursuit exception must be assessed on a case-by-case

basis. See Jennings v. Stephens, 574 U.S. 271, 276

(2015) (Court may affirm on any ground “appearing in

the record”).

First, as California observes (at 34–35), Officer

Weikert arrested Lange in good-faith reliance on

“binding appellate precedent,” Davis v. United States,

564 U.S. 229, 232 (2011)—namely, the categorical misdemeanor pursuit rule stated in Lloyd, 216 Cal. App.

3d at 1428–30.

Second, Officer Weikert’s pursuit of Lange into his

garage was reasonable even if assessed on its own

terms. Officer Weikert was patrolling alone at night

without any sure means of identifying Lange as the

driver or securing all exits to the home. He could reasonably have suspected inebriation, evidence of which

would have dissipated over time. And as California

concedes, it would have been difficult (if not impossible) to get an arrest warrant before morning. See Cal.

Br. 34 n.26 (citing Cal. Penal Code § 840(4)). Accordingly, a reasonable officer in Weikert’s shoes would

have understood that allowing the garage door to close

posed a real risk that Lange would evade detention

altogether—a result that would have reinforced exactly the perverse incentives the hot pursuit rule exists to combat. Lange, for his part, made the choice to

flee rather than submit to a traffic stop. And he had

diminished privacy interests in his garage, which was

already open for the world (and Officer Weikert’s

dashboard camera) to see. See Santana, 427 U.S. at

42.

CONCLUSION

The decision below should be affirmed.

January 8, 2021

Respectfully submitted,

Robert N. Stander

Parker Rider-Longmaid

Mary H. Schnoor*

Amelia A. DeGory

Angela E. Lesnak*

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

Amanda K. Rice

Counsel of Record

Andrew J. Clopton

JONES DAY

150 West Jefferson Ave.

Suite 2100

Detroit, MI 48226

(313) 733-3939

arice@jonesday.com

* Admitted respectively in

Illinois and California; not

admitted in DC (supervised by

a licensed DC Bar member)

Attorneys for Amicus Curiae

APPENDIX

CLASSIFICATION OF OFFENSES IN

CALIFORNIA PENAL CODE PART 11

Felony:

See Cal. Penal Code § 17(a).

Misdemeanor: See id.

Infraction:

See id.

Wobbler:

See Cal. Penal Code § 17(b); Ewing

v. California, 538 U.S. 11, 16

(2003).2

1 This table is limited to offenses contained in Part 1 of the

California Penal Code, which is the primary repository of California offenses. Other offenses (not listed here) may be found in different Parts of the Penal Code and in various other California

Codes, such as the Health and Safety Code. This table, accordingly, contains a large sample of California offenses, but is not an

exhaustive list.

2 Determining whether any particular offense is a felony,

misdemeanor, or infraction often requires comparing the punishment prescribed to the definitions in Penal Code § 17. Where a

single statutory section includes more than one offense, the table

identifies the different types of offenses the provision contains.

Additionally, offenses marked with an asterisk require reference

to California Penal Code §§ 486, 489, 490, 490a, and/or 490.1.

Code

Description of

Offense(s)

Type of

Offense(s)

§§ 32, 33

Accessories to Crimes

Wobbler

§ 38

Misprision of Treason

Felony

§ 67

Bribing Executive Officer

Felony

§ 67.5

Bribing Executive Officer

Felony

Misdemeanor

§ 68

Asking for or Receiving

Bribes

Felony

§ 69

Resisting or Deterring

Officer

Wobbler

§ 70

Asking for or Accepting

Misdemeanor

Gratuity for Official Act

§ 70.5

Accepting Gratuity for

Performing Marriage

Misdemeanor

§ 71

Threatening Officer

Wobbler

§ 72

Presenting False Claim

Wobbler

§ 72.5

Presenting Unauthorized Claim for Reimbursement

Wobbler

§ 73

Offering Gratuity for

Appointment to Office

Misdemeanor

§ 74

Receiving Gratuity for

Appointment to Office

Misdemeanor

Code

Description of

Offense(s)

Type of

Offense(s)

§ 76

Threatening Public Official, Staff, or Member

of Immediate Family

Felony

Wobbler

§ 85

Bribing Legislators

Felony

§ 86

Accepting Bribes

Felony

§ 92

Bribing Judicial Office

Felony

§ 93

Accepting Bribes

Felony

§ 94

Receiving Emolument

by Judicial Officer

Misdemeanor

§ 94.5

Accepting Gratuity for

Performing Marriage

Misdemeanor

§ 95

Influencing Jurors, RefWobbler

erees, or Umpires

§ 95.1

Threatening Jurors

Wobbler

§ 95.2

Providing Sealed Information to Defendant

Misdemeanor

§ 95.3

Providing Criminal Defendant with Juror Information

Misdemeanor

§ 96

Making Promise of Decision for or Against

Party

Wobbler

§ 96.5

Obstructing Justice by

Judicial Officer

Misdemeanor

Code

§ 99

Description of

Offense(s)

Interest in Public Contracts by State Printer

Type of

Offense(s)

Wobbler

§ 100

Collusion by State

Printer

§ 102

Retaking Property from

Misdemeanor

Officer

§ 107

Escape from Hospital

or Reformatory

Wobbler

§ 109

Assisting Escape from

Reformatory

Felony

§ 110

Supplying Aid to Escape from Reformatory

Felony

§ 112

Manufacturing or Selling False Government

Document to Conceal

True Citizenship

Misdemeanor

§ 113

Manufacturing, Distributing, or Selling

Documents to Conceal

True Citizenship

Wobbler

§ 114

Using False Documents

to Conceal True Citizenship

Wobbler

§ 115

Attempting to Record

False or Forged Instrument

Felony

Wobbler

Code

Description of

Offense(s)

Type of

Offense(s)

§ 115.1

Using Unauthorized

Signature in Campaign

Wobbler

§ 115.2

Publishing Campaign

Advertisement Containing False Depiction

or Representation

Misdemeanor

§ 115.25

Producing or Distributing Inaccurate Emergency Service Phone

Numbers

Misdemeanor

Infraction

§ 115.3

Alteration of Official

Record

Misdemeanor

§ 115.5

Forgery of Real Property Documents

Felony

§ 116

Tampering with Jury

Lists or Jury Box

Felony

§ 116.5

Jury Tampering

Misdemeanor

§ 117

Certifying False Jury

List

Felony

§ 118

Perjury

Felony

§ 118.1

Filing False Report

Wobbler

§ 118a

Submitting False StateFelony

ment in Affidavit

§ 127

Subornation of Perjury

Felony

Code

Description of

Offense(s)

Type of

Offense(s)

§ 128

Procuring Conviction of

Innocent Person by

Perjury

Felony

§ 129

Perjury

Felony

§ 131

Concealing Material

Fact

Misdemeanor

§ 132

Offering Forged or Altered Document

Felony

§ 132.5

Accepting Payment for

Information

Misdemeanor

§ 133

Making False Representation to Witness

Misdemeanor

§ 134

Falsifying Documents

to be Used in Evidence

Felony

§ 135

Destroying or Concealing Evidence

Misdemeanor

§ 135.5

Tampering with Evidence

Misdemeanor

§ 136.1

Preventing or Dissuading Testimony

Felony

Wobbler

§ 136.2

Violating Court Order

Wobbler

Misdemeanor

§ 136.5

Carrying Deadly

Weapon to Prevent Tes- Wobbler

timony

Code

Description of

Offense(s)

Type of

Offense(s)

§ 136.7

Releasing Personal Information of Witness or

Victim

Wobbler

§ 137

Bribing Witness; Attempting to Induce or

Inducing False Testimony

Felony

Misdemeanor

§ 138

Bribing Witness; Receiving Bribe Not to Attend Trial

Felony

§ 139

Threatening Witness

Wobbler

§ 140

Threatening Individual

Because of Assistance

in Prosecution

Wobbler

§ 141

Altering, Planting, or

Concealing Evidence

Felony

Misdemeanor

§ 142

Refusing to Receive or

Arrest Criminal

Wobbler

§ 145

Delay in Taking Arrestee Before Magistrate

Misdemeanor

§ 146

Officer Acting Without

Regular Process

Misdemeanor

§ 146a

Impersonating Deputy,

Clerk, or Public Officer

Wobbler

Misdemeanor

Code

§ 146b

Description of

Offense(s)

Simulating Official Inquiries

Type of

Offense(s)

Misdemeanor

§ 146c

Using Misleading Designation of Nongovernmental Organization

Misdemeanor

§ 146d

Selling or Conferring a

Misleading Membership Card or Badge

Misdemeanor

§ 146e

Disclosing Personal Information of Officer or

Agency Personnel

Felony

Misdemeanor

§ 146g

Disclosing or Soliciting

Information for Financial Gain

Misdemeanor

§ 147

Inhumane Treatment

or Oppression of Prisoner

Misdemeanor

§ 148

Resisting or Obstructing Officer or Technician

Felony

Wobbler

Misdemeanor

§ 148.1

Falsely Reporting

Planting of a Bomb

Wobbler

§ 148.2

Interfering with Emergency Personnel

Misdemeanor

§ 148.3

Falsely Reporting

Emergency

Wobbler

Misdemeanor

Code

Description of

Offense(s)

Type of

Offense(s)

§ 148.4

Tampering with Fire

Alarm or Giving False

Alarm

Wobbler

Misdemeanor

§ 148.5

Falsely Reporting

Crime

Misdemeanor

§ 148.6

Falsely Alleging Misconduct, Civil Claims,

or Property Liens

Against Officer

Misdemeanor

§ 148.7

Serving Sentence of AnMisdemeanor

other

§ 148.9

Giving False Identification

Misdemeanor

§ 148.10

Resisting Peace Officer

and Causing Death or

Serious Bodily Injury

Wobbler

§ 149

Assault and Battery by

Officer

Wobbler

§ 151

Advocating Injury or

Death of Peace Officer

Felony

Misdemeanor

§ 152

Concealing Accidental

Death

Misdemeanor

§ 152.3

Failing to Report Offense Against Minor

Misdemeanor

§ 153

Compounding or Concealing Crime

Wobbler

Misdemeanor

10a

Code

Description of

Offense(s)

Type of

Offense(s)

§ 154

Defrauding Creditors

by Selling or Concealing Property

Felony

Misdemeanor

§ 155

Fraudulently Concealing, Selling, or Disposing of Property

Felony

Misdemeanor

§ 155.5

Disposing of Property

to Avoid Making Restitution

Felony

Misdemeanor

§ 156

Producing Spurious

Heir

Felony

§ 157

Substituting Child

Felony

§ 158

Exciting Groundless

Judicial Proceedings

Misdemeanor

§ 160

Soliciting Bail

Misdemeanor

§ 165

Giving or Offering

Bribe to Councilman or

Supervisor

Felony

§ 166

Contempt of Court

Wobbler

Misdemeanor

§ 167

Recording Jury Proceedings

Misdemeanor

§ 168

Disclosing Warrant

Prior to Execution

Wobbler

11a

Code

Description of

Offense(s)

Type of

Offense(s)

§ 169

Picketing Near Court to

Obstruct AdministraMisdemeanor

tion of Justice

§ 170

Maliciously Procuring

Warrant

Misdemeanor

§ 171

Unauthorized Communication with Inmate

Misdemeanor

§ 171b

Bringing Weapon into

Public Building

Wobbler

§ 171c

Bringing Loaded Firearm into State or Public School Grounds

Wobbler

Misdemeanor

§ 171d

Bringing Loaded Firearm into Residence of

Governor or Officer

Wobbler

§ 171f

Disrupting Official

Business Within State

Capitol

Misdemeanor

§ 171.5

Possessing Prohibited

Item Within Sterile

Area of Airport or Passenger Vessel Terminal

Misdemeanor

§ 171.7

Possessing Prohibited

Item Within Sterile

Area of Public Transit

Facility

Misdemeanor

12a

Code

§ 172

Description of

Offense(s)