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

No. 20-18

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------ARTHUR GREGORY LANGE,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

---------------------------------♦--------------------------------On Writ Of Certiorari To The

Court Of Appeal Of The State Of California,

First Appellate District

---------------------------------♦--------------------------------BRIEF OF SONOMA COUNTY DISTRICT

ATTORNEY’S OFFICE AND CALIFORNIA

DISTRICT ATTORNEYS ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF COURT-APPOINTED

AMICUS CURIAE AMANDA K. RICE

IN SUPPORT OF THE JUDGMENT BELOW

---------------------------------♦--------------------------------GREGORY D. TOTTEN

Chief Executive Officer

CALIFORNIA DISTRICT

ATTORNEYS ASSOCIATION

2495 Natomas Park Dr.,

Ste. 575

Sacramento, CA 95833

(916) 443-2017

JILL R. RAVITCH

District Attorney

SPENCER RALPH BRADY

Chief Deputy

District Attorney

Counsel of Record

ROBERT A. MADDOCK

Deputy District Attorney

SONOMA COUNTY DISTRICT

ATTORNEY’S OFFICE

600 Administration Drive,

Room 212-J

Santa Rosa, CA 95403

(707) 565-2311

Spencer.brady@

sonoma-county.org

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

iii

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

1

BACKGROUND......................................................

2

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

8

ARGUMENT ...........................................................

9

I. EXISTING PRECEDENT PERMITS WARRANTLESS ENTRY INTO A HOME TO

COMPLETE THE ARREST OF A FLEEING OFFENDER INITIATED IN A PUBLIC PLACE ..................................................

9

A. Flight Into A Home From Lawful Arrest

Delegitimizes Any Expectation Of Privacy ........................................................ 10

B. Flight, Not Level Of Offense, Triggers

The Exigency In Pursuits...................... 11

C. A True Hot Pursuit Case Involves Actual Pursuit ........................................... 15

D. All Hot Pursuits Trigger Significant

Law Enforcement Concerns .................. 16

II. CALIFORNIA LAW DEMONSTRATES

THAT A RULE DEPENDENT OF STATUTORY LABELS OF “FELONY” OR “MISDEMEANOR” WILL BE DIFFICULT FOR

OFFICERS TO APPLY ................................ 18

A. The California Statutory Scheme Demonstrates The Difficulty Imposed On Officers In Hot Pursuit Situations ............... 19

ii

TABLE OF CONTENTS—Continued

Page

B. Application Of A Felony-Only Hot Pursuit Rule Would Create Legal Uncertainty And Increased Litigation............ 26

III.

TIME LOST OBTAINING A WARRANT IN

A PURSUIT CASE INCREASES RISK TO

OFFICERS AND LIKELIHOOD OF LOSS

OF EVIDENCE OR FURTHER ESCAPE

OF THE OFFENDER .................................. 28

A. Situations In Which Warrants Can Be

Obtained “In Minutes” Are Very Limited ......................................................... 28

B. Legally Sufficient Warrants Take Time

As Shown By Local Warrant Procedure;

In Pursuit Cases That Time Risks Loss

Of Evidence, Further Escape Of The

Offender, And Danger To The Officers .... 29

IV. EVEN IF THE COURT REJECTS A CATEGORICAL RULE, UNDER THE FACTS AND

CIRCUMSTANCES HERE, THE JUDGMENT BELOW SHOULD BE AFFIRMED ... 34

CONCLUSION .......................................................

37

iii

TABLE OF AUTHORITIES

Page

CASES

Arizona v. Evans,

514 U.S. 1 (1995) .....................................................35

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) ............................... 17, 18, 20, 21

Berkemer v. McCarty,

468 U.S. 420 (1984) .................................................20

Collins v. Virginia,

138 S.Ct. 1663 (2018) ........................................ 10, 19

Herring v. United States,

555 U.S. 135 (2009) ..................................... 34, 35, 36

Holman v. Johnson,

1 Cowp. 341 (1775) ..................................................14

In re Estrada,

63 Cal.2d 740 (1965) ......................................... 27, 28

Katz v. United States,

389 U.S. 347 (1967) ..................................... 11, 12, 14

Minnesota v. Olson,

495 U.S. 91 (1990) ............................................. 11, 14

Missouri v. McNeely,

569 U.S. 141 (2013) .................................................29

Payton v. New York,

445 U.S. 573 (1980) .................................................15

Penn. Bd. of Probation & Parole v. Scott,

524 U.S. 357 (1998) .................................................35

iv

TABLE OF AUTHORITIES—Continued

Page

People v. Lloyd,

216 Cal.App.3d. 1425 (1989) ...................................34

People v. Robinson,

47 Cal.4th 1104 (2010) ...................................... 34, 35

Rakas v. Illinois,

439 U.S. 128 (1978) .................................................11

Stanton v. Sims,

571 U.S. 3 (2013) .....................................................11

Steagald v. United States,

451 U.S. 204 (1981) ........................................... 15, 33

United States v. Calandra,

414 U.S. 338 (1974) .................................................35

United States v. Leon,

468 U.S. 897 (1984) ........................................... 35, 36

United States v. Santana,

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

United States v. Watson,

423 U.S. 411 (1976) ........................................... 12, 17

Warden, Md. Penitentiary v. Hayden,

387 U.S. 294 (1967) .................................................12

Welsh v. Wisconsin,

466 U.S. 741 (1984) ........................................... 11, 15

CONSTITUTION AND STATUTES

U.S. Const., Amend. IV ....................................... passim

Cal. Penal Code § 17 ............................................. 20, 22

v

TABLE OF AUTHORITIES—Continued

Page

Cal. Penal Code § 191.5 ..............................................23

Cal. Penal Code § 192 .................................................23

Cal. Penal Code § 192.5 ..............................................23

Cal. Penal Code § 193 .................................................23

Cal. Penal Code § 245(a)(1) ........................................21

Cal. Penal Code § 314.1 ..............................................23

Cal. Penal Code § 459 .................................................23

Cal. Penal Code § 459.5 ..............................................23

Cal. Penal Code § 591 .................................................23

Cal. Penal Code § 840(4) .............................................31

Cal. Penal Code § 1203.4 ............................................22

Cal. Penal Code § 1542 ...............................................31

Cal. Veh. Code § 2800 .................................................23

Cal. Veh. Code § 2800.1 ........................................ 16, 24

Cal. Veh. Code § 2800.2 ........................................ 16, 24

Cal. Veh. Code § 2800.4 ........................................ 24, 25

Cal. Veh. Code § 14601 ...............................................24

Cal. Veh. Code § 22350 ...............................................24

Cal. Veh. Code § 22450 ...............................................24

Cal. Veh. Code § 23152 ...............................................26

Cal. Veh. Code § 23550 ...............................................26

Cal. Veh. Code § 23550.5 ............................................26

vi

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

CALCRIM No. 3471 ....................................................14

CALCRIM No. 3472 ....................................................14

1 E. East, Pleas of the Crown § 71, p. 303

(1803) ...................................................................18

OTHER MATERIAL

Alyssa Pereira, Russian River Brewing’s 2019 Pliny

the Younger Release Generated $4.16 Million

for Sonoma County, San Francisco Chronicle,

March 26, 2019, available at https://www.sfgate.

com/beer/article/Russian-River-Brewing-2019Pliny-the-Younger-13717680.php .............................4

Black’s Law Dictionary 1575 (11th ed. 2019) ............10

Christian Kallen, Agua Caliente Neighbors Fight

Surge in Vacation Rentals, Sonoma Index Tribute, December 21, 2020, available at https://www.

sonomanews.com/article/news/agua-calienteneighbors-fight-surge-in-vacation-rentals/ ..............4

Merriam-Webster’s Collegiate Dictionary

1065 (11th ed. 2006) ................................................10

Nashelly Chavez, Three ID’d in Pair of Fatal

Crashes on Highway 12 Near Santa Rosa, The

Press Democrat, January 6, 2021, available at

https://www.pressdemocrat.com/article/news/

three-idd-in-pair-of-fatal-crashes-on-highway-12/ .........6

1

INTEREST OF AMICI CURIAE1

The Sonoma County District Attorney is the prosecutorial authority for Sonoma County, California, where

the events at issue here all occurred. The District Attorney charged Petitioner with the underlying crimes

related to driving under the influence (DUI) with

a prior conviction, and high blood alcohol. The office

defended the motion to suppress evidence below, and

two separate appeals in the Appellate Division of the

Sonoma County Superior Court. The prosecution of

DUI offenders, particularly repeat offenders such as

Petitioner, is of vital importance to the District Attorney, and the safety of the community. Because the California Attorney General determined to support the

Petitioner in regard to the question presented here, the

Court invited a separate amicus curiae, Ms. Amanda

Rice, to file a brief defending the judgment. The Sonoma

County District Attorney’s Office has a direct interest

in the outcome of this case, and joins in defense of the

judgment below. Further, the District Attorney has an

interest in clear Fourth Amendment rules that are

readily administrable.

The California District Attorneys Association

(CDAA) has been in existence since 1910 and was incorporated as a non-profit corporation in 1974. It has

over 2,700 members including all of California’s 58 district attorneys, the Attorney General of California, city

1

The parties consented in writing to the filing of this brief.

No counsel for a party authored this brief in whole or in part, no

counsel or party or other person made a monetary contribution to

fund the preparation or submission of this brief.

2

attorneys engaged in criminal prosecutions, deputy

district attorneys, deputy attorney generals, and deputy city attorneys. It is dedicated to promoting justice,

education and training, effective advocacy, integrity,

and compliance with constitutional and other legal

mandates. CDAA presents prosecutors’ views in appellate cases when it concludes that the issues raised will

significantly affect the administration of criminal justice.

---------------------------------♦---------------------------------

BACKGROUND

Petitioner Arthur Lange, already on probation for

driving under the influence of alcohol, with another

“out of time” prior conviction, drove along California

Highway 12 in unincorporated Sonoma County, needlessly honking his horn, with music blaring. It was a

Friday night, a few minutes after 10 pm. His blood alcohol level, tested later after a blood draw, was over

0.24%, more than three times the legal limit in California.

His behavior attracted the attention of California

Highway Patrol (CHP) Officer Weikert, (Weikert) who

entered the highway and began to catch up, without

emergency lights or siren. Weikert was from the neighboring Napa County CHP unit, whose patrol jurisdiction covers eastern Sonoma County. The Napa CHP

office was located some half-hour drive away in Napa.

3

As Weikert followed, his patrol car’s video system

recorded the pursuit.2 Lange first made a right turn

off the highway onto Mountain Avenue, a semi-rural

lane, as Weikert followed, closing the distance between

them. Lange then turned left onto a smaller street,

Hillside Avenue. As the video shows, the tail lights of

Lange’s vehicle came into view as Weikert caught up

to Lange, who slowed to nearly a full stop in the public

roadway. As became evident moments later, Lange

utilized modern technology—the common garage door

opener—to trigger the door to open. As Lange began to

move again, Weikert turned on his emergency lights,

which are clearly seen illuminating the inside of

Lange’s vehicle, as well as in front of him. Before the

officer could have the opportunity to run Lange’s license plate, Petitioner made another right and drove

up a driveway. As Weikert followed, his emergency

lights illuminated Lange’s car and the driveway. The

video shows Lange drive up the driveway, enter a garage—with the flashing lights clearly visible illuminating the garage—and immediately trigger the door to

shut.

Officer Weikert stopped his patrol vehicle, got out,

and waved his foot under the closing door, breaking

a beam of light that triggered the door to go back up.

He then took a few steps into the garage, and contacted Lange, whose slurred speech was immediately

2

A copy of the video was admitted at the hearing as Defense

Exhibit A, and referenced here in its entirety.

4

apparent. The officer then asked Lange to step out of

the garage. Lange was subsequently arrested for DUI.

State Highway 12 is a two-lane roadway with

nothing but two ribbons of yellow paint separating opposing traffic. Highway 12 connects central Sonoma

County to neighboring Napa County, and is heavily

traveled by commuters, locals, and tourists visiting the

two famous wine regions. The speed limit in most areas

is 55 miles per hour.

Dozens of wineries are accessed via the highway,

and the Sonoma Valley, where Petitioner resided, is a

popular destination for vacationers from the San Francisco Bay Area, and elsewhere. Hundreds of vacation

homes, short-term rentals, and other tourist accommodations dot the valley and rugged hillsides.3 Sonoma

County is also a mecca for beer lovers, with several

world-famous brewers located in the region, including

Russian River Brewing Company, which each year

releases “Pliny the Younger” in limited supplies in an

event that draws thousands of beer tourists from

throughout the nation, and even the world.4 The

3

As of August 6, 2020, the Sonoma County reported it had

846 vacation rental homes in the just the Sonoma Valley area of

the county, where Petitioner resides. Christian Kallen, Agua Caliente Neighbors Fight Surge in Vacation Rentals, Sonoma Index

Tribute, December 21, 2020, available at https://www.sonomanews.

com/article/news/agua-caliente-neighbors-fight-surge-in-vacationrentals/.

4

In 2019, tourists came from 400 cities in 42 different American states, and from 14 countries as far off as Thailand, Malaysia

and New Zealand. Alyssa Pereira, Russian River Brewing’s 2019

Pliny the Younger Release Generated $4.16 Million for Sonoma

5

regional alcoholic beverages industries dominate the

local economy and draw visitors year round.5

Sonoma County is also home to a significant

amount of marijuana-related businesses, both legal

and illegal—or somewhere in between. Indoor and outdoor marijuana grows abound. Labs to convert marijuana into concentrated cannabis and other products—

again, both legally and illegally—may be located in

signed warehouses, or any garage, shed, or house.

Counties further north that represent the “Emerald

Triangle” funnel carloads of marijuana down U.S.

Route 101, and Sonoma County serves as a hub for

large-scale marijuana transactions between growers

in the north and buyers from the south. All of this marijuana-related activity attracts not only those who

seek to obtain marijuana legally, but criminals of all

types, from the simple thief to sophisticated and wellarmed gangs travelling from across the country to conduct home invasion robberies—and murders—in order

to obtain the highly valuable, and generally untraceable, product. Officers often have no way of knowing

if any seemingly normal residence actually harbors

marijuana grows or criminal enterprises with armed

defenders inside.

County, San Francisco Chronicle, March 26, 2019, available at

https://www.sfgate.com/beer/article/Russian-River-Brewing-2019Pliny-the-Younger-13717680.php.

5

As of 2016, there were more than 425 wineries in Sonoma

County generating over $13 billion for the local economy, according to county records.

6

Unfortunately, the local bounty also brings with it

the increased danger of intoxicated drivers, often unfamiliar with the curving undivided roadways, who all

too often cause collisions resulting in injury, death, and

property damage. As a result, DUI enforcement is a

top priority for local law enforcement, including the

Sonoma County District Attorney’s Office, which

though small in size, maintains a “Vertical Driving

Under the Influence” (VDUI) team, funded in part

through state highway safety grants. The VDUI unit

prosecutes repeat offenders, including Lange here. The

VDUI unit also holds regular meetings with law enforcement partners, including the CHP, to share information, discuss trends, and identify which areas are

the high priority enforcement targets. State Highway

12 is such an area.

Because traffic regularly exceeds the posted 55

miles per hour speed limit, major crashes in the area

are all too frequent, and often catastrophic.6 In 2018,

local law enforcement submitted 2756 DUI cases to the

Sonoma County District Attorney’s Office, 188 of which

as felonies. Of those, 2681 criminal cases were filed,

208 of them as felonies. In 2019, 2785 cases were

6

The highway is already subject to disastrous vehicle collisions all too often, even without the added danger imposed by

impaired drivers. Sadly, as reported in the Santa Rosa Press

Democrat, a recent example involves three individuals who were

killed in two separate crashes within minutes of each other on

January 4, 2021. Nashelly Chavez, Three ID’d in Pair of Fatal

Crashes on Highway 12 Near Santa Rosa, The Press Democrat,

available at: https://www.pressdemocrat.com/article/news/threeidd-in-pair-of-fatal-crashes-on-highway-12/.

7

submitted as DUI’s, 145 as felonies; 3044 cases were

filed, 179 as felonies.7 Of the 2019 offenses, 625 of the

filed cases involved repeat offenders. Ninety cases involved injuries at the hands of the DUI driver.

Sonoma County, like the majority of California’s

58 counties, is largely rural. Situated on the Pacific

Coast north of Marin County and the Golden Gate, and

south of Mendocino County, the cities and towns generally sit in the valleys along the highway corridors—

U.S. 101 and State Highway 1 running north to south,

and highways 12 and 116 connecting the western and

eastern portions. However, vast areas of the county are

rugged coastal ranges or interior mountainous zones

with very limited communications and steep and winding roadways that cannot be traversed quickly, even by

first responders in emergencies. Large areas, such as

the coastal zone, may have a single resident deputy

available, often over an hour away from the scene of

any call even at full “Code 3” speeds. Substantial areas

may be out of radio and cell phone range altogether for

any officer needing to summon assistance. Whatever

perception people may have about the most populous

state in the union based on areas like Los Angeles, the

San Francisco Bay Area, or San Diego, in reality most

counties in the state are rural and sparsely populated.

Indeed, Sonoma County is a mini-model of the state itself—a few areas of concentrated cities and towns, and

vast areas with few inhabitants. And, as relevant here,

7

The fact that many cases that are submitted as misdemeanors

are filed as felonies underscores the difficulty officers in the filed

have in determining the level of offense accurately in real time.

8

peace officers in such locations, so common in the

county, the state, and indeed the nation as a whole,

would be severely hampered in the performance of

their duties if all that any offender needs to do is drive

into his or her garage and then thumb their nose at the

officer.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

I. Existing precedent supports a categorical rule

permitting hot pursuit for public offenses, whether felony or misdemeanor, if the officer has probable cause,

the arrest is initiated in a public place, and the offender flees into a home. The fleeing offender has no

legitimate expectation for privacy when he flees a lawful arrest and opens his home and enters in order to

escape consequences for criminal activity. It is the

flight and actual pursuit that are the key components

to a true hot pursuit. Hot pursuits trigger important

law enforcement concerns.

II. A rule dependent on statutory labels of “felony” or “misdemeanor” would create confusion and be

difficult to apply in the rapidly evolving context of a

pursuit. Nationally, it would create anomalies between

states for the same conduct based on local laws. In

California, an alternate felony/misdemeanor statutory

scheme for the same conduct would lead to uncertainty

in the field and endless second guessing.

III. While warrants may be obtained “in minutes”

in limited situations like a DUI blood draw, where the

9

subject is already in custody and probable cause established, a constitutionally sufficient warrant in pursuit

cases such as Lange’s takes time. Destruction of evidence, further flight of the offender, and officer safety

are all put at great risk.

IV. Even if the Court rejects a categorical rule,

under these facts the judgment should be affirmed. The

cost to society of exclusion far outweighs any benefit of

deterrence.

---------------------------------♦---------------------------------

ARGUMENT

I.

EXISTING PRECEDENT PERMITS WARRANTLESS ENTRY INTO A HOME TO COMPLETE

THE ARREST OF A FLEEING OFFENDER

INITIATED IN A PUBLIC PLACE.

The question presented frames the issue in terms

of the misdemeanor label attached to the offense, not

the conduct itself. While the lower federal courts and

numerous states have reached different conclusions,

this court’s precedents giving rise to the “hot pursuit”8

exception, along with subsequent developments in the

law, permit just the sort of entry into a home to apprehend a fleeing misdemeanant as occurred in this case.

8

“Hot pursuit” can be a problematic term. “Fresh pursuit” or

even just “pursuit” are sometimes used. As discussed here, the

emphasis is on the immediacy of the pursuit, with an active attempt to apprehend a fleeing suspect.

10

A. Flight Into A Home From Lawful Arrest

Delegitimizes Any Expectation Of Privacy.

Initially, Lange confuses distinct constitutional issues by blurring two definitions of the word “retreat”

in order to assert that a misdemeanant has a constitutionally protected right to flee into his home and evade

an otherwise lawful arrest initiated in a public place.

But the Fourth Amendment was never intended to be

a shield to facilitate crime. A “retreat” may be defined

as “a private and safe place where one can go for peace

and quiet” or “a place of privacy or safety; REFUGE.”

Black’s Law Dictionary 1575 (11th ed. 2019); MerriamWebster’s Collegiate Dictionary 1065 (11th ed. 2006).

This is the constitutional protected activity clearly

meant by this court when, as Petitioner states “[t]he

‘very core’ of the Fourth Amendment is ‘the right of a

man to retreat into his home and there be free from

unreasonable government intrusion,’ ” citing Collins v.

Virginia, 138 S.Ct. 1663, 1670 (2018). Pet. Br. at 2. In

contrast, this Court’s precedent does not approve the

meaning of “retreat” that applies in this case—the act

of fleeing into the home to avoid a lawful arrest. United

States v. Santana, 427 U.S. 38, 42 (1976) (“The only remaining question is whether act of retreating into her

house could thwart an otherwise proper arrest. We

hold that it could not.”).

The distinction matters. Generally, the reasonableness of the expectation of privacy in the home is

undoubted. “[A] principal protection against unnecessary intrusions into private dwellings is the warrant

requirement imposed by the Fourth Amendment on

11

agents of the government who seek to enter the home

for purposes of search or arrest.” Welsh v. Wisconsin,

466 U.S. 740, 748 (1984). However, “[s]ince the decision

in Katz v. United States, 389 U.S. 347 (1967), it has

been the law that ‘capacity to claim the protection of

the Fourth Amendment depends . . . upon whether the

person who claims the protection of the Amendment

has a legitimate expectation of privacy in the invaded

place.’ ” Minnesota v. Olson, 495 U.S. 91, 95 (1990), citing Rakas v. Illinois, 439 U.S. 128, 143 (1978). “A subjective expectation of privacy is legitimate if it is

‘ “one that society is prepared to recognize as ‘reasonable[.]’ ” ’ ” Id. at 95-96, citation omitted. As Santana

teaches, the offender who flees a lawful arrest and exposes his home to the public sheds any legitimacy to

the expectation of privacy along the way.

B. Flight, Not Level Of Offense, Triggers

The Exigency In Pursuits.

While Petitioner denies the existence of a categorical rule regarding pursuit, Respondent, as well as

some subsequent authorities, discuss the holding in

Santana as applying a categorical pursuit exception to

the warrant requirement for a fleeing felon. However,

the analysis of the case itself did not turn on whether

the offense was a felony; rather, the focus was on the

flight to evade a lawful arrest initiated in a public

place. See Stanton v. Sims, 571 U.S. 3, 9 (2013) (“nothing in [Santana] establishes that the seriousness of

the crime is equally important in cases of hot pursuit”)

(emphasis in original). Although the offense discussed

12

was deemed a felony, the conduct involved was relatively minor, and did not involve any violence, an injured victim, or immediate threat of harm to another.

CF Warden, Md. Penitentiary v. Hayden, 387 U.S. 294

(1967) (entry made into home to locate armed robber,

soon, but not immediately, after the robbery).

The analysis in Santana supports a conclusion

that the warrantless entry and arrest in the present

matter—and other misdemeanor flight cases—is constitutionally permissible. In Santana, after the sale of

a small amount of drugs to an informant, officers descended on the Santanas while still in their front yard,

in order to arrest them. The petitioner ran inside her

home, and officers followed, arrested her, and located

the marked bill and more drugs. Citing United States

v. Watson, 423 U.S. 411 (1976), the court first considered whether the warrantless arrest was initiated in a

public place. The court concluded it was, even though

Santana was on the stoop within the curtilage of her

home, citing Katz v. United States, 389 U.S. 347, 351

(1967) (“What a person knowingly exposes to the public, even in his own house or office, is not a subject

of Fourth Amendment protection.”). The court then

turned to the question “whether her act of retreating

into her house could thwart an otherwise proper arrest.” The answer was no. Santana at 42. The court considered the location where the officer initiated the

arrest—a public place—and the conduct of the petitioner in retreating into her home to thwart the arrest.

Although the underlying charge here is different,

the rest of the facts of Santana are very similar. Officer

13

Weikert attempted a lawful detention in a public place,

a public roadway. Lange was in his vehicle, with the

well-recognized lesser expectation of privacy and, as he

concedes in his brief “slowed to open his garage door”

while still on the public roadway. Pet. Br. at 3. As he

began to move again the officer turned on his emergency lights—still in the public roadway—and continued up Lange’s driveway in a true hot pursuit, as in

Santana. And, like Santana, the pursuit itself was very

short in distance and time.

Despite Lange’s unsupported assertion that he did

not know the officer was behind him (apparently based

on his own slurred self-serving hearsay response to

Weikert about whether he saw the officer behind him),

it is not reasonably possible that Lange did not notice

that the interior of his car, the driveway before him,

and garage were brightly illuminated by emergency

lights. He would have had to be blind not to notice

them. Instead, it is clear that Lange readied his attempted escape by slowing to open the garage door

while still in the roadway, and then immediately triggered it to close as soon as he got into the garage, as

seen in the video. Lange had obviously become aware

of the officer behind him—the only other vehicle on the

road and rapidly catching up. He knew he was on DUI

probation, knew that he had terms that required him

to submit to a warrantless test for alcohol in his system, knew he was well over the legal limit, and knew

he would go to jail if he got caught. His clear attempt

to escape from a lawful police order to stop stripped

him of any privacy expectations that “society is

14

prepared to recognize as reasonable.” Olson, 495 U.S.

91, 96. The law is replete with doctrines that deny

wrongdoers from using positive law as a tool to shield

their misconduct, from “unclean hands” to disgorgement, and the loss of the right to claim self-defense to

the initial aggressor. See CALCRIM 3471 & 3472 (California criminal jury instructions limiting self-defense

for mutual combat and initial aggressors), available

generally. The concept was well understood at common

law in England. As Lord Mansfield explained in Holman v. Johnson shortly before the Founding, in a contract case:

The principle of public policy is this; ex dolo

malo non oritur actio [“no action arises from

deceit”]. No court will lend its aid to a man

who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff ’s

own standing or otherwise, the cause of action

appears to arise ex turpi causa [“from an immoral cause”], or the transgression of a positive law of this country, there the court says

he has no right to be assisted. It is upon that

ground the court goes; not for the sake of the

defendant, but because they will not lend

their aid to such a plaintiff.

Holman v. Johnson, 1 Cowp. 341 (1775).

Further, when Lange drove into his garage, which

was then wide open as the officer followed, he exposed

the interior to the world. He cannot expect Fourth

Amendment protection in so doing. Katz, supra, 389

U.S. 347, 351. Officer Weikert defeated Lange’s “act of

15

retreating into [his] house [to] thwart an otherwise

proper arrest” by the simple act of waiving his foot under the closing door, using the same technology Lange

employed in his attempt to thwart the lawful warrantless arrest for a misdemeanor committed in his presence, in a public place.

C. A True Hot Pursuit Case Involves Actual

Pursuit.

The immediacy of the chase—actual pursuit—and

the flight of the offender from a lawful arrest are the

key components to Santana’s rule. Other cases cited by

the parties lack those concerns. Payton v. New York,

445 U.S. 573 (1980) involved statutes that permitted

warrantless entry into a home to make an arrest based

on probable cause that the subject had committed a felony. But the entry and arrest could be made at any

time. The statutes at issue did not require any need for

immediate apprehension of the suspect in order to

make the warrantless entry into a home. In Steagald

v. United States, 451 U.S. 204 (1981) the Drug Enforcement Agents had an arrest warrant, but it was not for

Steagald, the resident of the home, yet they made warrantless entry anyway. At issue was Steagald’s expectation of privacy, not that of the subject of the arrest

warrant. In Welsh v. Wisconsin, 466 U.S. 740 (1984), the

DUI driver had left the scene of a crash prior to any

officer attempting to arrest him. He was home in bed

when the officers went to arrest him without a warrant. There was no pursuit and no flight from arrest at

issue. All of these cases lack the three fundamental

16

issues found here, that were equally present in Santana: a lawful arrest initiated in a public place; the

intended arrestee fleeing into the home in order to

thwart the arrest; and the officer in actual pursuit and

taking immediate action to prevent that escape.

D. All Hot Pursuits Trigger Significant Law

Enforcement Concerns.

Petitioner’s argument that “low level offenses”

should not suffice to trigger an exception to the warrant requirement ignores key issues. What he ignores

is that while the initial offense may be minor, in every

case in which an officer has probable cause to arrest,

but the arrestee instead flees, it is the suspect who has

elevated the crime to a more serious offense. It is very

much a compelling governmental interest to maintain

adherence to lawful police orders. Those who flee a lawful arrest often set in motion much greater danger to

the public and risk to the pursuing police.9 Of course,

as Petitioner acknowledges, the failure to obey lawful

commands exposes the offender to greater consequences—but only if identified and caught. Pet. Br. at

37.

Further, any experienced officer knows that in

most cases, the flight is for a secondary reason, as here.

The driver who flees a minor traffic stop generally does

so because he or she has an outstanding warrant (often

9

In 2019, 37 “evading” cases were submitted, and 34 filed

by the Sonoma County District Attorney’s Office. Cal. Veh. Code

§§ 2800.1, 2800.2, 2800.3.

17

felony), weapons or contraband in the vehicle, evidence

of other crimes (stolen property—including the vehicle

itself—or even a domestic violence victim as a passenger), or, just as this case illustrates, the driver is intoxicated and knows he will get arrested and go to jail.

Therefore, in almost all cases flight stems from additional criminal activity the offender wishes to conceal,

and as Santana comments, any delay in apprehension

“would result in destruction of evidence.” Santana at

43.

Although the Santana analysis started with the

lawfulness of the arrest initiated in a public place under the rule from Watson, which involved a felony arrest in a public place, this Court would clarify that the

rule extended to misdemeanors in Atwater v. City of

Lago Vista, 532 U.S. 318 (2001), discussed further below. Atwater made clear that the level of the offense did

not matter, whether there was a “breach of the peace”

or more innocuous conduct. Instead, the lawfulness

turned on probable cause. While the parties attempt

to interpose the home’s protected-place status into

Santana’s analysis for misdemeanors, they miss the

point that the flight from lawful arrest and opening of

the home eliminate those concerns.

The parties’ arguments are much the same as

those rejected in Atwater. Such a rule would be very

difficult to apply and would lead to endless litigation

and second guessing. Instead, like Atwater, a clear rule

that probable cause to arrest in a public place is sufficient to justify entry into a home to apprehend a fleeing offender is easily enforceable. It serves the critical

18

governmental interest of maintaining order and respect for the law.

Rejecting historical-based arguments that the offense must involve a “breach of the peace,’ the Atwater

court listed a wide variety of “minor offenses” for which

the commentators approved warrantless arrest, when

committed in the presence of the constable—as was the

case here. Such offenses ranged from “negligent carriage drivers” to “persons playing ‘unlawful games’ like

bowling, tennis, dice, and cards.” See Atwater, 334-35.

“Not long after the framing of the Fourth Amendment,

East characterized peace officers’ common-law arrest

power in much the same way: ‘A constable or other

known conservator of the peace may lawfully interpose

upon his own view to prevent a breach of the peace, or

to quiet an affray. . . .’ ” Atwater at 330, citing 1 E. East,

Pleas of the Crown § 71, p. 303 (1803).

If the power to make a warrantless arrest in public

does not depend on the level of offense, logic dictates

that flight from that arrest should be treated equally

as well.

II.

CALIFORNIA LAW DEMONSTRATES THAT

A RULE DEPENDENT OF STATUTORY LABELS OF “FELONY” OR “MISDEMEANOR”

WILL BE DIFFICULT FOR OFFICERS TO

APPLY.

A rule which would categorically limit the hot pursuit exigency exception to the warrant requirement to

offenses defined by local laws as felonies, but exclude

19

misdemeanors, is fraught with complications. On a national level, it would deem an officer’s pursuit into a

home “reasonable” under the Fourth Amendment in

one state yet “unreasonable” in another state for similar conduct, merely because the former state imposes

harsher punishment for that conduct. It would encourage misdemeanants to flee into their homes, or even

curtilage10—or someone else’s—and essentially thumb

their noses at the officers who attempted a lawful arrest in a public place. And, as so frequently discussed

in this Court’s prior decisions, officers in the field

reacting to rapidly unfolding situations will have

difficulty determining the level of the offense while actively trying to enforce the law.

A. The California Statutory Scheme Demonstrates The Difficulty Imposed On Officers

In Hot Pursuit Situations.

Applying a hard-and-fast rule limiting the hot

pursuit doctrine to crimes statutorily defined as “felonies” poses significant problems because the same

conduct may constitute a felony in some cases, or a

misdemeanor in others. Officers dealing with rapidly

evolving situations in the field often cannot be certain

what level of crime it will be—even very serious conduct. For example, California law defines many crimes

in such a way that the same conduct may be charged

as a misdemeanor or felony for a number of reasons.

10

Entry into the curtilage is generally treated the same as

the home, further complicating application of the rule. See Collins

v. Virginia, supra, 138 S.Ct. 1663, 1670.

20

These include the discretionary charging decisions of

the prosecutor, subsequent reduction at the discretion of a judge, jury determinations, and negotiated

dispositions. These charges, known as “wobblers” in

California, are defined in the statutory language as

punishable either by a prison term (felony), or a jail

term (misdemeanor). Cal. Pen. Code 17. The charge

may also wobble or even be charged under an altogether different statute based on additional factors

such as the amount of loss, prior convictions, age of victims, level of injury, and other factors.

Atwater rejected the same arguments raised by

the parties here, that the punishment for the offense

should draw the line between lawful and unlawful warrantless arrests in a public place. In rejecting a rule

with a line drawn between “jailable” and “fine-only” offenses, the Court explained:

The trouble with this distinction, of course, is

that an officer on the street might not be able

to tell. It is not merely that we cannot expect

every police officer to know the details of frequently complex penalty schemes, see Berkemer v. McCarty, 468 U.S. 420, 431, n. 13, 82

L. Ed. 2d 317, 104 S. Ct. 3138 (1984) (“Officers

in the field frequently ‘have neither the time

nor the competence to determine’ the severity

of the offense for which they are considering

arresting a person”), but that penalties for ostensibly identical conduct can vary on account

of facts difficult (if not impossible) to know at

the scene of an arrest. Is this the first offense

or is the suspect a repeat offender? Is the

21

weight of the marijuana a gram above or a

gram below the fine-only line? Where conduct

could implicate more than one criminal prohibition, which one will the district attorney ultimately decide to charge? And so on.

Atwater, 532 U.S. 318, 348-49.

A rule requiring an officer in the field to accurately

determine the level of offense in real time renders the

rule impractical to apply. As Atwater teaches, “we have

traditionally recognized that a responsible Fourth

Amendment balance is not well served by standards

requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the

field be converted into an occasion for constitutional

review.” Id. at 346.

California, where approximately one eighth of the

population of the United States resides, illustrates the

difficulty in applying the rule due to its statutory

scheme. The statutory “wobblers” in California come in

a great variety of offenses, conduct, and consequences.

For example, assault with a deadly weapon (Penal

Code § 245(a)(1)) is a “wobbler.” If a defendant is convicted of the offense as a felony, it becomes a “strike”

under the California Three Strikes Law paradigm. If

subsequently convicted of a new felony offense, and the

Penal Code § 245(a)(1) prior conviction is proved, the

defendant is ineligible for a grant of probation, unless

the strike is dismissed. Certainly, this demonstrates

the government’s view of the seriousness of the conduct and need to curtail it.

22

However, the same offense (and conduct) may be

made a misdemeanor at various stages of the underlying case. A prosecutor may review the case for charging, and consider a variety of factors in whether to

charge the offense as a misdemeanor or a felony. These

factors an officer in the field would likely not know at

the time of the hot pursuit, such as the criminal history

of the defendant, the level of assaultive conduct, the

type of deadly weapon used, the behavior and history

of the victim (and potential self-defense/mutual combat claims), the victims cooperation, and any other mitigating considerations.

Further, even if charged as a felony, at the preliminary hearing on the complaint, the defense may move,

or the court may decide on its own, to reduce the charge

to a misdemeanor pursuant to Penal Code § 17(b)(5)—

and then it becomes “a misdemeanor for all purposes.”

Even if charged as a felony on the information or indictment (if initiated by way of grand jury), it may later

be reduced to a misdemeanor. A plea agreement may

include reduction to a misdemeanor at the time of sentencing, or after successful completion of all or a designated portion of a probationary period. Finally, under

California law, generally the defendant may move for

an expungement and reduction of a felony wobbler to

a misdemeanor after completing the sentence. Cal.

Pen. Code § 1203.4. The underlying conduct itself may

have been on the more egregious side, but the “carrot”

of later reduction serves as the “stick” over defendants

to motivate rehabilitation and compliance with terms

of probation.

23

Similarly, certain factual determinations may specify whether specific conduct rises to the felony level—

information that rarely could be determined during a

hot pursuit. Vandalism is a misdemeanor under California law if the value of the damage was less than

$400, but may be charged as a felony wobbler if $400

or more. Penal Code § 591. The cost of damage can be

difficult to assess in the field—even without the exigency of a chase—and may often be more or less than

appeared originally. Retail theft is defined as a misdemeanor “shoplifting” if the theft occurs during the

regular business hours and the value of the stolen

property is less than $950, but as a felony “commercial

burglary” if $950 or more. Cal. Pen. Code §§ 459.5, 459.

A police officer chasing a fleeing thief from a business

will rarely be able to determine the value of stolen

property during the chase. Indecent exposure is a

misdemeanor for a first offense, but a felony wobbler

thereafter. Penal Code § 314.1. Even vehicular manslaughter may be a misdemeanor under certain situations, but a very serious felony in others. Cal. Pen. Code

§§ 191.5, 192, 192.5, 193.

As here, where a subject flees in a vehicle, that

very flight may rise to the level of a felony through factual determinations that may be very difficult to discern in an active chase, particularly where more than

one officer is involved. The simple act of failing to comply with a lawful “order, signal, or direction of a peace

office,” as did Petitioner, is a misdemeanor, punishable

by fine and up to six months in jail. Cal. Veh. Code

§ 2800. Flight from an officer with intent to evade,

24

willfully flee, or attempt to elude a pursuing officer is

a misdemeanor punishable by up to one year, if, and

only if, 1) the officer’s vehicle displayed a red light the

person sees or reasonably should have seen; 2) the officer’s vehicle sounded a siren “as may be reasonably

necessary”; 3) the officer’s vehicle was distinctively

marked; and 4) the vehicle is operated by an officer

wearing a distinctive uniform. Cal. Pen. Code § 2800.1.

However, if under the same facts the fleeing offender does certain qualifying acts, that evasion becomes a felony. If the person violates Section 2800.1

with willful or wanton disregard for the safety of persons or property, the offense becomes a felony wobbler.

Cal. Veh. Code § 2800.2. “Willful or wanton disregard”

while fleeing may be found by either three or more violations that are assigned a traffic violation point, or

damage to property occurs. Id. A “traffic violation

point” is assigned to some offenses, such as speeding,

failure to yield at a stop sign, and driving on a suspended or revoked license. Cal. Veh. Code §§ 22350,

22450(a), 14601. In real time, it may be very difficult

for officers involved in a chase to know what conduct

would qualify for a point, and how many the fleeing

driver had accumulated.

Further, if all the factors required for a violation

of Section 2800.1 are met and the fleeing offender

“drives that vehicle on a highway in a direction opposite to that in which the traffic lawfully moves upon

that highway,” the offense is also a wobbler, punishable

by a minimum six months in jail, or state prison for up

to three years. Cal. Veh. Code § 2800.4.

25

As can be seen, a few factual differences in Petitioner’s flight would have made important differences

in punishment. Had Officer Weikert merely sounded

his siren when he turned on his lights, the maximum

punishment would have gone from six months to a full

year of jail. Had the officer activated lights and siren

while still on highway 12, and Petitioner failed to yield,

the distinctions between felony and misdemeanor conduct instantly would have been much more difficult to

discern in real time. A single act of crossing over the

double yellow line would have rendered the offense a

felony for driving in the opposite direction of opposing

traffic under Section 2800.4. If Petitioner exceeded the

speed limit, failed to fully stop at a stop sign, and also

was driving on a suspended license, he would have accumulated the three points necessary to render the

conduct felonious. Even if the rest of the facts were the

same—slowing to open the garage door, pulling in, and

attempting to close it automatically, a few factual differences would determine whether Officer Weikert’s

act of moving his foot under the garage door to trigger

it to open, and then taking a few steps into the garage

to contact Petitioner, would render the warrantless entry and arrest lawful under the parties’ proposed rule.

Some conduct may constitute a felony, rather than

a misdemeanor, based on particular charging allegations that, once again, an officer in the field dealing

with pursuit in real time would rarely have the opportunity to know. The present case is a perfect example.

Petitioner had two prior convictions for driving under

the influence of alcohol (DUI). In California, a simple

26

first DUI offense is a misdemeanor. Cal. Veh. Code

§ 23152. However, if the driver has qualifying prior offenses, the same conduct would be felonious. If the

driver has three separate convictions for DUI within a

ten-year period, the People may charge him with a felony. Cal. Veh. Code § 23550. Some prior conduct may

result in life-time exposure to felony charging, such as

if the person had a prior vehicular manslaughter conviction. Cal. Veh. Code § 23550.5. Here, the petitioner

had one “in time” prior (within ten years), and one “out

of time” prior (more than ten years earlier). Had he

three prior in-time convictions, the same conduct

would have been felonious. If an officer does not have

that information, the fleeing felon might get away.

B. Application Of A Felony-Only Hot Pursuit Rule Would Create Legal Uncertainty

And Increased Litigation.

All of these issues with California statutes that

permit the same conduct to be labeled as felonious or

misdemeanant raise substantial concerns with application of the rule the parties urge. If a categorical rule

places the line at what label attaches to the certain

conduct, at what point in the timeline would the label

attach? The officer’s real-time probable cause determination that the defendant had committed a felony—

and not a misdemeanor—would be subject to endless

second guessing. Would it be a valid felony hot pursuit

because the conduct is charged as a felony, or could be

charged as a felony, or was at some point a felony

charge? Or, would the opposite rule apply—if it could

27

be a misdemeanor, or later was reduced to a misdemeanor, would the search or arrest become invalid? Officers in the field would be left to make quick decisions

in rapidly unfolding situations, and subject to endless

second guessing. For instance, under California law,

the defense may bring a motion to suppress concurrently with the preliminary hearing, where a magistrate holds a hearing to determine whether the People

have sufficient evidence to hold the defendant to answer for any or all charges. If so, the matter proceeds

to be trial. If the judge finds sufficient evidence to sustain the charge but decides to reduce a wobbler offense

to a misdemeanor, either by motion of the defense or

the court’s own act of discretion, the offense is rendered

a misdemeanor. The concurrent motion to suppress evidence on an otherwise justifiable hot pursuit entry

into the home could then hinge on the magistrate’s ruling on the level of the charge.

If the label applied to the same conduct determines the outcome, this would place pressure on the

State to charge, and maintain, offenses as felonies.

To further complicate matters, under California

law, any statutory reduction in punishment or level of

offense applies retroactively to all non-final judgments.

Known as the Estrada rule, its application can change

a felony to a misdemeanor for all purposes based on

changes in the law that may came well after the initial

case is filed, sometimes many years later. See In re

Estrada, 63 Cal.2d 740 (1965). California has seen

wholesale changes to its criminal statutory scheme in

the last decade, with whole classes of offenses reduced

28

from felonies to misdemeanors, including many drug

offenses, and theft related offenses—crimes where

flight from a lawful arrest tend to occur more often.

The parties’ proposed rule would trigger endless litigation when the Estrada rule later reduces an offense,

and interfere with the great societal interest in finality

of judgments.

III. TIME LOST OBTAINING A WARRANT IN A

PURSUIT CASE INCREASES RISK TO OFFICERS AND LIKELIHOOD OF LOSS OF

EVIDENCE OR FURTHER ESCAPE OF THE

OFFENDER.

A. Situations In Which Warrants Can Be

Obtained “In Minutes” Are Very Limited.

The parties suggests obtaining a warrant these

days is a simple matter that may quickly be done telephonically or electronically—“in minutes.” While it

may be theoretically possible under ideal circumstances to obtain a warrant within five minutes, that

is exactly what the result would be—a five-minute

warrant. It is true that in limited situations, a search

warrant may be obtained quickly, but such situations

are few, such as a blood draw warrant where a DUI offender is already known, in custody, and an investigation that establishes probable cause is already done.

Under those circumstances, meeting the constitutional

warrant requirements is relatively simple and straight

forward. The item to be seized, the subject’s blood, is

the known, and the place to be searched is the defendant’s body. Local agencies have pre-made templates

29

in which they merely need to insert the probable cause

statement, and it can be ready to go. In rejecting a categorical rule for warrantless blood draws in DUI cases

in Missouri v. McNeely, 569 U.S. 141 (2013), the Court

addressed advances in telecommunications and statutes in many states that permit telephonic or electronic warrant applications. But the circumstances of

a DUI blood draw lend themselves to faster warrants,

and there may not be a compelling exigency with the

suspect already in custody and probable cause already

fully developed. However, preparing a search warrant

for an unknown suspect who has entered a home is an

altogether different story.

B. Legally Sufficient Warrants Take Time

As Shown by Local Warrant Procedure;

In Pursuit Cases That Time Risks Loss

of Evidence, Further Escape of the Offender, And Danger to The Officers.

Given recent events in the United States, condoning hastily prepared and reviewed warrants to enter a

home at night seems to be an ill-advised course to set

as an alternative to allowing a law enforcement officer,

with probable cause to arrest a suspect for an offense

that occurred in a public place, to take quick action to

prevent the suspect from escaping into a home. Once

inside, the suspect is likely to destroy incriminating evidence, try to escape or hide, or, as is so common in DUI

cases, manufacture a defense commonly referred to as

“drinking after driving.” A home with multiple persons

inside will create identification issues, as this case

30

illustrates, because the officer had not identified the

driver in any way, and hadn’t even had time to run the

driver’s license plate. Officer Weikert didn’t even know

whose home it was, so a mere arrest warrant wouldn’t

do.

The risk of loss of evidence, and rewarding criminals for refusing lawful orders from police, is especially

costly when balanced with the relatively minimal intrusion a “doorway apprehension” of a fleeing suspect

such as here, where the mere waiving of a foot under

an automatic garage door closer quickly and safely resolves the issue. The Fourth Amendment demands that

the place to be searched and items to be seized be described with particularity. How would an officer, alone

in a patrol vehicle, at night, outside a home where for

which he has no information other than location, prepare such a warrant?

In reality, preparation and review of a search warrant that will pass Fourth Amendment muster requires more. Much more. In Sonoma County, in order

to protect both the individual rights of persons as well

as the integrity of criminal investigations, generally all

search warrants must go through a multi-step process

for preparation, review, submission, and approval by a

judge. Although the local procedure itself may not be

required by the Fourth Amendment, the procedure

demonstrates what it takes to make sure the warrant

meets the requirements of the Fourth Amendment—

that the place to be searched and item to be seized are

31

described with the necessary particularity.11 In order

to describe a residence with sufficient particularity, researching the property is important to determine if

there is more than meets the eye from the street, such

as secondary buildings and size of the lot. Like an iceberg, a view from the street may only reveal a small

portion of the property. Generally, these tasks must be

completed back at the office, on a computer with access

to the internet and law enforcement databases.

In order to assure the warrant is legally sufficient,

in most cases it must be approved by a supervisor and

a deputy district attorney (DDA) before submission to

the magistrate. At night, such as in the present case,

this requires contacting (and often waking) the on-call

DDA, and then the magistrate, which adds time to the

process. Only then may the warrant be executed.

Under the facts here, in a real-world context of an

officer in the field, even in the extremely unlikely event

that a night-service warrant could be obtained,12 the

following steps would be required. First, assuming

Weikert stopped as the garage door closed, he would

have been in front of a home, in the dark, alone, in a

semi-rural area. He would need to obtain descriptive

information about the home—the appearance, address,

11

It is also highly relevant to a case-by-case analysis, as discussed post.

12

As Respondent concedes, it would have been unlikely to

get an arrest warrant before morning. See Resp. Br. 34 n.26 (citing Cal. Pen. Code § 840(4)). Further, the ability to get search

warrants for misdemeanor offenses is limited by statute. Cal.

Pen. Code 1542.

32

type of home, etc. He would either need to drive back

to his office—a half hour drive each way if no traffic—

or contact dispatch and get assistance from another officer at the station—if one is available. The officer

would need to investigate the property itself via public

and police records—is it a single-family residence? Is

it a vacation rental? For officer safety he would want

to know if any parolees or probationers, or guns, were

known to be in the home, which may require more

backup, and more time.

Under these facts, Officer Weikert would have had

to sit outside the home alone, at night, monitoring the

home while another officer prepared the warrant at

the office, or he would have had to leave the scene for

several hours to go prepare the warrant himself. The

wait would give the opportunity for the unknown subject to destroy evidence or flee out the back door. Assuming the CHP vehicle had a computer terminal in

the car, and also had sufficient cell or radio communications, he would be distracted with his work, and unable to watch the home, and very vulnerable to an

attack.

If, assuming the officer only sought an arrest warrant, rather than a full search warrant, the time would

have been shorter because the District Attorney does

not review those. Nevertheless, it would still take time

and incur the same risks above. Petitioner minimizes

that the driver had not been identified. However, there

is no evidence the officer had any idea of the age, general description, or even the gender of the suspect. Had

he later entered a home with multiple people inside,

33

how could he identify the proper suspect? Of course, if

the office did not know whose home it was, or knew it

was not the suspect’s home, an arrest warrant alone

would not do, as required by Steagald v. United States,

supra, 451 U.S. 204.

Further, attempting warrant service for an unknown suspect in an unknown home at night is flat

dangerous. No officer in today’s age should be expected

to place his life at risk by attempting warrant service

alone, with no backup for miles. An officer in Weikert’s

position, alone at night, would be exposing himself

to extreme danger, whether an attack was launched

against him by those in the home, or by trying to take

control and arrest a suspect who has already fled once.

This is no “minor inconvenience.”

Finally, Respondent makes the surprising argument that once a DUI driver such as Lange has arrived

home, the threat of public danger is over. This ignores

mountains of data regarding the number of times DUI

drivers commit the crime without getting caught.

Lange himself was on his third DUI. Had he escaped

this time, history tells us he would have been out on

the roads again, endangering lives. The need to arrest

and hold accountable repeat DUI drivers is undoubtedly a very compelling governmental interest.

34

IV. EVEN IF THE COURT REJECTS A CATEGORICAL RULE, UNDER THE FACTS AND

CIRCUMSTANCES HERE, THE JUDGMENT

BELOW SHOULD BE AFFIRMED.

Respondent asserts that vacatur is appropriate

here. We disagree. First, the facts and circumstances

that this officer faced required prompt action to prevent Lange’s escape. The minimal intrusion of breaking a beam of light to trigger the garage door to go back

up, then taking a few steps into the garage to contact

him were reasonable under the totality of the circumstance. Additionally, under longstanding California

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

and absent any clear rule from this Court categorically

barring hot pursuit entry into a home for misdemeanors, the officer’s actions were clearly in good faith.

The cost of exclusion of evidence must always be

weighed against the benefit of any deterrent effect

such exclusion would have. Under these facts, exclusion of evidence is unwarranted. “Our cases establish

that such suppression is not an automatic consequence

of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.”

Herring v. United States, 555 U.S. 135, 137 (2009). Not

every Fourth Amendment violation results in exclusion of the evidence obtained as a result of an improper

search or seizure. See id. at 140-41; People v. Robinson,

47 Cal.4th 1104, 1124 (2010). “[T]he Fourth Amendment

contains no provision expressly precluding the use of

evidence obtained in violation of its commands.”

35

Arizona v. Evans, 514 U.S. 1, 10 (1995). Rather, exclusion of evidence is “a judicially created rule . . . ‘designed

to safeguard Fourth Amendment rights generally

through its deterrent effect.’ ” (Herring, supra, 555 U.S.

at 139-40, quoting United States v. Calandra, 414 U.S.

338, 348 (1974). “Indeed, exclusion has always been our

last resort, not our first impulse, and [Supreme Court]

precedents establish important principles that constrain application of the exclusionary rule.” Id. at

p. 140, internal citations and quotation marks omitted.

As a judicially-created remedy, the exclusionary rule

applies only where “its remedial objectives are thought

most efficaciously served.” Evans, supra, 514 U.S. at

p. 11.

The exclusionary rule is not an individual right,

but it “applies only where it ‘results in appreciable

deterrence.’ ” Herring, 555 U.S. at p. 141, quoting

United States v. Leon, 468 U.S. 897, 909 (1984), emphasis added, and some internal marks omitted; see also

Penn. Bd. of Probation & Parole v. Scott, 524 U.S. 357,

368 (1998) [“We have never suggested that the exclusionary rule must apply in every circumstance in

which it might provide marginal deterrence”]; see

Robinson, at 1126 [absent deliberate, reckless, or

grossly negligent conduct, or systemic negligence, the

exclusionary rule normally does not apply]. The Court

also balances the benefits of deterrence against the

costs of excluding the evidence, particularly the social

costs of “letting guilty and possibly dangerous defendants go free-something that ‘offends basic concepts of

36

the criminal justice system.’ ” Herring, 555 U.S. at 141,

quoting Leon, 468 U.S. at 908.

Here, Officer Weikert acted in good faith, based on

long-existing California precedent. His intrusion into

Lange’s home was kept to the minimum necessary to

accomplish the arrest. Indeed, he took no more than a

few steps into the garage, and then removed Lange to

the driveway. Nothing about his actions was egregious,

and it all flowed from Lange’s wrongful act of fleeing a

lawful traffic stop when he knew he was going to be

arrested for another DUI and a probation violation.

Lange’s wrongdoing should not be rewarded with a getout-of-jail free card merely because he managed to get

his garage door to open from a distance so he could

drive straight in. The cost to society of letting this repeated DUI offender get away with it due to his flight

from a lawful traffic stop is too high, and would encourage others to do the same.

---------------------------------♦---------------------------------

37

CONCLUSION

The judgement below should be affirmed.

January 13, 2021

Respectfully submitted,

JILL R. RAVITCH

District Attorney,

COUNTY OF SONOMA COUNTY

SPENCER RALPH BRADY

Chief Deputy District Attorney

Counsel of Record

ROBERT A. MADDOCK

Deputy District Attorney

GREGORY D. TOTTEN

Chief Executive Officer

CALIFORNIA DISTRICT

ATTORNEYS ASSOCIATION