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

No. 20-18

IN THE

Supreme Court of the United States

ARTHUR GREGORY LANGE,

Petitioner,

v.

STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari

To the California Court of Appeal,

First Appellate District

BRIEF OF PROFESSOR STEVEN PENNEY

AS AMICUS CURIAE

IN SUPPORT OF THE JUDGMENT BELOW

DAVID DEBOLD

Counsel of Record

CLAIRE L. CHAPLA

THOMAS J. MCCORMAC IV

ROBERT A. BATISTA

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8551

ddebold@gibsondunn.com

Counsel 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?

ii

TABLE OF CONTENTS

Page

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

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ............................................................... 4

I.

THE SUPREME COURT OF CANADA HAS

DERIVED FROM THE COMMON LAW THE

SAME CATEGORICAL RULE AS THE COURT

BELOW. ............................................................ 4

A. Nearly Thirty Years Ago, The

Supreme Court Of Canada Adopted

A Categorical Exception To The

Warrant Requirement For All Cases

Of Hot Pursuit. .........................................4

B. Canada And The United States

Share The Historical Common Law

From Which The Supreme Court Of

Canada Derived The Categorical

Macooh Hot Pursuit Exception. ...............9

II. THE CANADIAN EXPERIENCE

DEMONSTRATES THAT A CATEGORICAL

RULE IS READILY ADMINISTRABLE AND

ADEQUATELY PROTECTS PRIVACY

INTERESTS...................................................... 14

CONCLUSION .......................................................... 20

iii

TABLE OF AUTHORITIES

Page(s)

Cases

In re Alejandro G.,

43 Cal. Rptr. 2d 471 (Cal. Ct. App.

1995) ..................................................................... 12

Atwater v. City of Lago Vista,

532 U.S. 318 (2001) .................................. 11, 17, 18

Browning-Ferris Indus. of Vt., Inc. v.

Kelco Disposal, Inc.,

492 U.S. 257 (1989) ............................................ 1, 9

Cloutier v. Langlois,

[1990] 1 S.C.R. 158 (Can.) ................................... 10

Culombe v. Connecticut,

367 U.S. 568 (1961) .............................................. 10

Eccles v. Bourque,

[1975] 2 S.C.R. 739 (Can.) ..................................... 6

R. v. Ballegeer,

2013 ABPC 128 (Can.) ......................................... 14

R. v. Bate,

[2002] M.J. No. 324 (MB PC) (Can.).............. 14, 17

R. v. Bennett,

[2012] N.J. No. 368 (NL PC) (Can.) ..................... 16

R. v. Bérubé (G.),

1998 CanLII 28661 (NB PC) (Can.) .................... 14

iv

TABLE OF AUTHORITIES (continued)

Page(s)

R. v. Caissie,

[1999] N.B.J. No. 254 (Can.) ................................ 15

R. v. Deforest,

2009 SKPC 22 (Can.) ........................................... 18

R. v. Estey,

2008 NBPC 56 (Can.) ........................................... 18

R. v. Feeney,

[1997] 2 S.C.R. 13 (Can.) ............... 8, 10, 13, 14, 15

R. v. Fleet,

[2015] N.S.J. No. 570 (NS PC) (Can.).................. 16

R. v. Hyde,

2010 ABPC 30 (Can.) ........................................... 17

R. v. K.(J.),

2002 BCPC 160 (Can.) ......................................... 14

R. v. Landry,

[1986] 1 S.C.R. 145 (Can.) ......................... 8, 10, 13

R. v. Leblue,

2004 SKPC 107 (Can.) ......................................... 18

R. v. Lyons,

[1984] 2 S.C.R. 633 (Can.) ..................................... 6

R. v. Macooh,

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

v

TABLE OF AUTHORITIES (continued)

Page(s)

R. v. Rao,

[1984] O.J. No. 3180 (ON CA) ............................. 10

R. v. Robillard,

[2012] S.J. No. 607 (Can.) .................................... 16

R. v. Sar,

2013 NBPC 23 (Can.) ..................................... 14, 15

R. v. Shott,

[2006] A.J. No. 1337 (AB PC) (Can.) ................... 16

R. v. Silveira,

[1995] 2 S.C.R. 297 (Can.) ............................ 10, 14

R. v. Stevens,

[2011] O.J. No. 6059 (ON CJ) (Can.) ................... 17

Semayne’s Case

(1604) 77 Eng. Rep. 194 (KB) .............................. 13

Stone v. Powell,

428 U.S. 465 (1976) ................................................ 9

Swales v. Cox,

[1981] QB 849....................................................... 11

United States v. Watson,

423 U.S. 411 (1976) ........................................ 11, 12

Wilson v. Arkansas,

514 U.S. 927 (1995) ................................................ 9

vi

TABLE OF AUTHORITIES (continued)

Page(s)

Statutes

Ala. Code §13A-11-7 .................................................. 12

Ariz. Rev. Stat. Ann. §13-2904 ................................. 12

Cal. Penal Code Ann. §415........................................ 12

Colo. Rev. Stat. §18-9-106 ......................................... 12

Conn. Gen. Stat. §53a-181 ........................................ 12

D.C. Code §22-1301 ................................................... 12

Del. Code Ann. tit. 11, §1301 .................................... 12

Fla. Stat. §870.01(1) .................................................. 12

Ga. Code Ann. §16-11-32 ........................................... 12

N.C. Gen. Stat. Ann. §14-33...................................... 12

N.M. Stat. Ann. §30-20-2 .......................................... 12

Nev. Rev. Stat. §203.050 ........................................... 12

R.S.A. 2000, c. T-6, s. 169.......................................... 17

R.S.C. 1985, app. II, no. 5, s. 91(27) ........................... 5

R.S.C. 1985, c. I-21, s. 34(1)(a)-(b) .............................. 5

R.S.C. 1985, c. I-21, s. 34(1)(c) .................................... 5

S.C. Code Ann. §§16-1-10(C), 16-5-120..................... 12

vii

TABLE OF AUTHORITIES (continued)

Page(s)

Other Authorities

10 Halsbury’s Laws of England 354 (3d

ed. 1955) ............................................................... 11

4 Wharton’s Criminal Law § 540 (15th

ed.) ........................................................................ 12

Horace L. Wilgus, Arrest Without a

Warrant, 22 Mich. L. Rev. 541 (1924) ................. 12

James Stribopoulos, Unchecked Power:

The Constitutional Regulation of

Arrest Reconsidered, 48 McGill L.J.

225 (2003) ............................................................... 5

Proceedings of the Standing Senate

Committee on Legal and

Constitutional Affairs, Issue 12:

Evidence (Dec. 16, 1997),

https://www.sencanada.ca/en/Conten

t/SEN/Committee/361/lega/12ev-e....................... 19

R.E. Salhany, Canadian Criminal

Procedure 44 (5th ed. 1989) ................................. 15

Steve Coughlan & Glen Luther,

Detention and Arrest 12 (2d ed. 2017) ................. 19

Steve Coughlan, Criminal Procedure 17

(4th ed. 2020)........................................................ 19

viii

TABLE OF AUTHORITIES (continued)

Page(s)

Steven Penney et al., Criminal

Procedure in Canada 137 (2d ed.

2018) ..................................................................... 19

Tim Quigley, Procedure in Canadian

Criminal Law § 5.5(a) (2d ed. 2019) .................... 19

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

Law of Forcible Entry, 15 Alta. L.

Rev. 271 (1977) ..................................................... 12

INTEREST OF AMICUS CURIAE 1

Amicus curiae, Professor Steven Penney, is a law

professor at the University of Alberta in Edmonton,

Alberta, Canada.

Professor Penney researches,

teaches, and consults in the areas of criminal procedure, evidence, substantive criminal law, privacy, and

law and technology. He is co-author of Criminal Procedure in Canada and co-editor of Evidence: A Canadian Casebook. He is also a member of the advisory

boards of the Alberta Law Review and Canadian Journal of Law & Justice.

Professor Penney has no personal interest in the

outcome of this case but does have a professional interest in the development of U.S. criminal procedure

and its potential influence on Canadian criminal law.

Indeed, the United States shares its common-law

roots with Canada. So it is no surprise that this Court

has found the Canadian application of the common

law persuasive. See, e.g., Browning-Ferris Indus. of

Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 273

& n.18 (1989). And the Supreme Court of Canada has

likewise looked to the American understanding of the

common law, including in matters of criminal procedure.

SUMMARY OF ARGUMENT

Nearly thirty years ago, the Supreme Court of

Canada faced the very question this Court faces here.

Relying on the same common-law principles that form

1

Pursuant to Supreme Court Rule 37.6, no counsel for a party

authored this brief in whole or in part, and no person or entity

other than amicus or their counsel made a monetary contribution

to this brief’s preparation. All parties have consented in writing

to the filing of this brief.

2

the foundation of this Court’s Fourth Amendment jurisprudence, the Supreme Court of Canada adopted

the categorical rule applied by the California court below: warrantless entry into a residence to effectuate

arrest is permissible following a hot pursuit of a suspect, regardless of offence classification. See R. v. Macooh, [1993] 2 S.C.R. 802, 816 (Can.).

That decision supports the judgment below. The

Supreme Court of Canada’s legal reasoning applies

here as well. And decades of experience have shown

that the rule works well in practice. Its two limitations—the police must be actively engaged in hot pursuit and have sufficient legal grounds for arrest—

have safeguarded the privacy interests that the

Fourth Amendment protects.

I. In Macooh, the Supreme Court of Canada began by surveying common-law sources on which this

Court frequently relies, and unanimously concluded

that the right to enter a residence in hot pursuit applied at common law regardless of offence classification.

The court went on to note that a rule relying on

offence classification would be unworkable. For example, in Canada, as in the United States, offence classifications imperfectly reflect the severity of the offence.

And at the time of arrest, it is not always clear which

offence classification will result from a defendant’s

conduct.

When interpreting the scope of the Fourth

Amendment, this Court looks to traditional protections that the common law provided against unreasonable searches and seizures. This Court has also

recognized as persuasive Canada’s application of that

common law. Thus, the Supreme Court of Canada’s

3

adoption of a categorical hot pursuit exception regardless of offence classification strongly supports the California court’s judgment below.

II. Canada’s experience in the nearly three decades following Macooh demonstrates that the rule applied in the California court below is both readily administrable and sufficiently protective of privacy interests. Indeed, by consistently applying Macooh’s

two limitations, lower courts throughout Canada have

ensured that privacy interests are safeguarded.

First, Macooh’s categorical rule applies only when

police are engaged in hot pursuit. To that end, lower

courts have refused to apply the exception where, for

example, a police officer never signaled to the defendant to stop, a defendant was not in fact fleeing from

police, or where there was a lack of continuity connecting police pursuit with the defendant’s commission of

the alleged offence. Thus, lower courts have strictly

enforced Macooh’s rule that police truly be engaged in

hot pursuit before they make a warrantless residential arrest.

Second, the rule in Macooh applies only if police

have reasonable and probable grounds to make an arrest at the time of pursuit. Canadian courts, through

faithful enforcement of this requirement, have prevented the exception from applying where its justification is lacking.

As a result, concerns that a categorical rule might

eviscerate important privacy interests and sanction

police abuse are completely unsupported by the Canadian experience.

4

ARGUMENT

I.

THE SUPREME COURT OF CANADA HAS DERIVED FROM THE COMMON LAW THE SAME

CATEGORICAL RULE AS THE COURT BELOW.

While police must generally obtain a warrant before arresting a person in a private dwelling in Canada, no warrant is required for a residential arrest

made in hot pursuit, regardless of the nature or classification of the offence. Rooted in centuries-old common-law principles, this categorical hot pursuit exception has stood the test of time in Canada. Because the

United States and Canada share a common-law heritage, the Canadian experience supports affirmance of

the judgment below.

A. Nearly Thirty Years Ago, The Supreme

Court Of Canada Adopted A Categorical Exception To The Warrant Requirement For All Cases Of Hot Pursuit.

In R. v. Macooh, [1993] 2 S.C.R. 802, 806 (Can.),

the Supreme Court of Canada, presented with facts

similar to those here, adopted a categorical hot pursuit exception to the warrant requirement that applies regardless of how the underlying offence is classified.

1. Much like Petitioner Arthur Lange, Doug Macooh was driving home in the middle of the night when

he committed a minor offence, in his case, failing to

stop at a stop sign. Macooh, 2 S.C.R. at 806. After

observing this infraction, a police officer activated his

vehicle’s emergency lights and began following Macooh. Id.

Macooh, like Lange, did not stop. Macooh, 2

S.C.R. at 806. Instead, he accelerated, driving

5

through two more stop signs. Id. He finally exited his

vehicle at an apartment complex, where he ignored

the officer’s orders to surrender and ran into an apartment. Id.

The officer approached the apartment door and

called out to Macooh, but there was no answer. Macooh, 2 S.C.R. at 806. The officer then entered the

apartment and told Macooh that he was under arrest.

Id. Macooh resisted the arrest. Id. An altercation

ensued, and the officer observed that Macooh was impaired. Id.

Macooh was ultimately charged with impaired

driving, failing to stop for a peace officer, failing to

submit to a breathalyzer test, and assaulting a peace

officer. Macooh, 2 S.C.R. at 806.

2. Macooh challenged his warrantless arrest, arguing that it was invalid because he committed a less

serious, non-criminal “provincial offence.” In Canada,

all criminal offences are prosecuted either by way of

indictment (“indictable” offences) or summarily

(“summary conviction” offences). See Interpretation

Act, R.S.C. 1985, c. I-21, s. 34(1)(a)-(b). Many are “hybrid” offences, meaning the prosecution can choose either route. See id. s. 34(1)(c). Thus, “pure” summary

offences encompass only the least serious crimes. See

James Stribopoulos, Unchecked Power: The Constitutional Regulation of Arrest Reconsidered, 48 McGill

L.J. 225, 236 (2003).

Under the Constitution Act, 1867, R.S.C. 1985,

app. II, no. 5, s. 91(27), the federal Canadian Parliament has exclusive jurisdiction over “Criminal Law,”

which means that “provincial” (non-federal) offences

like Macooh’s are categorically non-criminal and non-

6

indictable. They are prosecuted by proceedings analogous to those for both “summary conviction” offences

in the federal Criminal Code and misdemeanors at

common law. See Macooh, 2 S.C.R. at 819–20.

3. In a unanimous decision, the Supreme Court

of Canada held that Macooh’s warrantless arrest was

valid.

The court explained that entry into a residence to

arrest in hot pursuit was “an exception traditionally

recognized by the common law to the principle of the

sanctity of the home.” Macooh, 2 S.C.R. at 812; see

also id. at 813–15; cf. R. v. Lyons, [1984] 2 S.C.R. 633,

657 (Can.) (noting “the right of pursuit” as a

longstanding exception to the common law’s protection of the sanctity of the home); Eccles v. Bourque,

[1975] 2 S.C.R. 739, 747 (Can.) (noting “hot pursuit”

exception to “knock and announce” requirement for

residential arrests at common law).

Because there was no dispute that the officer’s entry into Macooh’s apartment occurred “in hot pursuit,”

the question before the court was “whether there

[wa]s any basis for extending the hot pursuit exception to arrests for provincial offences.” 2 S.C.R. at 812.

The court offered several justifications for including

provincial offences within the hot pursuit exception.

First, the court engaged in a detailed analysis of

the common law, concluding that at common law, “the

right to enter in hot pursuit” was not “limited to arrest

for felonies” and applied regardless of offence classification. Macooh, 2 S.C.R. at 817–18; see also id. at

813–15; infra Section I.B (discussing in detail Macooh’s common-law analysis).

Second, the court explained there were “strong

policy considerations” counseling against Macooh’s

7

proposed distinction between indictable and non-indictable offences “in determining the spatial limits on

the power of arrest in hot pursuit.” Macooh, 2 S.C.R.

at 819.

The court emphasized that “it would be unacceptable for police officers who were about to make a

completely lawful arrest to be prevented from doing so

merely because the offender had taken refuge in his

home or that of a third party.” Macooh, 2 S.C.R. at

815. Indeed, in cases of hot pursuit, “[t]he offender is

. . . not being bothered by the police unexpectedly

while in domestic tranquility.” Id. Rather, the suspect “has gone to his home while fleeing solely to escape arrest.” Id. This flight by a suspect “should not

be . . . rewarded.” Id. In addition, the flight itself creates “[s]ignificant danger,” jeopardizes the safety of

others, and also risks the destruction of evidence. Id.

at 816; see A.K. Rice Amicus Br. 19–20 (explaining

that Macooh correctly understood how the hot pursuit

exception reflects a balance of “weighty government

interests on one side, and minimal privacy interests

on the other”).

Turning to Macooh’s assertion that warrantless

residential arrests should not be permitted for lesser

offences, the court noted that the division between offence categories “only very imperfectly reflects the severity of the offence.” Macooh, 2 S.C.R. at 819. Relatedly, “[i]n some situations, too, it is not clear . . . what

the ultimate charge may be.” Id. Further, the court

noted that “there 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.” Id.; cf.

A.K. Rice Amicus Br. 36–40 (observing that “[t]he law

8

enforcement interests supporting the hot pursuit exception relate to flight, not the underlying offense,”

and that the felony-misdemeanor line is arbitrary and

often impossible for officers to apply in the field).

These considerations weighed against adopting

different rules for warrantless residential arrests

based on offence classification.

Finally, the court dismissed Macooh’s argument

that the Supreme Court of Canada’s earlier decision

in R. v. Landry, [1986] 1 S.C.R. 145 (Can.), overruled

by R. v. Feeney, [1997] 2 S.C.R. 13, 49 (Can.), see infra

I.B.3, which allowed warrantless residential arrests

for certain offences even absent exigent circumstances, should not be extended to cover less serious

offences.2 Macooh, 2 S.C.R. at 812. Although lower

courts had framed the case in this manner, the court

said that Landry’s broad rule was not “the issue.” Id.

Rather, because everyone agreed that a hot pursuit

had taken place, the “more narrow” question the court

had to resolve was whether to extend the well-rooted

hot pursuit doctrine to less serious provincial offences.

Id.

*

*

*

At bottom, the Supreme Court of Canada found

that the hot pursuit exception was rooted in “common

sense.” Macooh, 2 S.C.R. at 816. “[I]f an arrest without a warrant is permissible at the outset,” the court

2

The Supreme Court of Canada in Landry had held that police were permitted to make residential arrests for indictable offences without a warrant, assuming probable grounds and

proper announcement. See Landry, 1 S.C.R. at 155–56; id. at 160

(noting that without such power, an offender “might find complete and permanent protection from the law in his or her own

home or the home of another”).

9

explained, “the offender’s flight into a dwelling house

cannot make it unlawful.” Id. “The entry of the police

in hot pursuit is then perfectly justified,” regardless of

offence classification. Id.

B. Canada And The United States Share

The Historical Common Law From

Which The Supreme Court Of Canada

Derived The Categorical Macooh Hot

Pursuit Exception.

When interpreting the Fourth Amendment, this

Court looks to “the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing.” Wilson v. Arkansas, 514 U.S. 927, 931 (1995). The United States

shares its English common-law heritage with Canada.

See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 273 n.18 (1989). Therefore,

it is particularly significant that in Macooh, the Supreme Court of Canada derived the same categorical

rule applied by the California Court of Appeal from

this shared common-law history. The Supreme Court

of Canada’s reading of the common law supports affirmance of the judgment below.

1. United States courts interpreting historical

common law have long looked across the border for

guidance. Indeed, this Court has recognized as persuasive the Canadian application of common law. See,

e.g., Browning-Ferris Indus. of Vt., Inc., 492 U.S. at

273 & n.18 (finding the Canadian understanding of

common law “significant” in interpreting the Eighth

Amendment’s Excessive Fines Clause); see also Stone

v. Powell, 428 U.S. 465, 496, 499 (1976) (Burger, C.J.,

concurring) (noting that no exclusionary rule exists

“in other common law jurisdictions such as England

10

and Canada” in opinion advocating for limits on American exclusionary rule); Culombe v. Connecticut, 367

U.S. 568, 568–59, 589–90, 589 n.37 (1961) (Frankfurter, J., announcing the Court’s judgment and an opinion) (looking to Canadian law in case about admissibility of evidence under the Fourteenth Amendment’s

Due Process Clause).

Likewise, the Supreme Court of Canada frequently looks to the American understanding of the

common law, including in matters of criminal procedure. In developing the law of arrest and search and

seizure, for example, Canadian Supreme Court Justices often draw on this Court’s Fourth Amendment

jurisprudence, including its “valuable” analysis of historical common law. R. v. Silveira, [1995] 2 S.C.R.

297, 351–53 (Can.) (opinion of L’Heureux-Dubé, J.)

(quoting R. v. Rao, [1984] O.J. No. 3180 (ON CA)); see

also id. at 370–73 (majority opinion); Feeney, 2 S.C.R.

at 87–90, 94–95, 97–98 (L’Heureux-Dubé, J., dissenting); Landry, 1 S.C.R. at 168–71, 174, 185 (La Forest,

J., dissenting); Cloutier v. Langlois, [1990] 1 S.C.R.

158, 173–75 (Can.). This makes good sense, given the

shared common-law roots of the United States and

Canada.

2. In Macooh, the Supreme Court of Canada

looked to this shared common-law history in considering the Canadian equivalent of the question presented

here: whether the hot pursuit doctrine applies equally

to indictable and non-indictable offences.3 2 S.C.R. at

817. In particular, the court asked whether at common law the right to enter in hot pursuit was “limited

3

As noted above, indictable offences in Canadian law are

analogous to felonies and non-indictable offences are analogous

to misdemeanors. See supra Section I.A.2.

11

to arrest for felonies.” Id. And the answer, it found,

was emphatically “no.”

The court in Macooh relied on Halsbury’s Laws of

England, an “eminent” common-law source, Atwater

v. City of Lago Vista, 532 U.S. 318, 329 (2001), and one

on which this Court has frequently relied in Fourth

Amendment cases, see, e.g., United States v. Watson,

423 U.S. 411, 418 (1976). Lord Halsbury first analyzed felonies, explaining that an officer may “break

open the door of the house” if a felony has been committed and the felon is “followed” to the house. 10

Halsbury’s Laws of England 354 (3d ed. 1955). Next,

he explained that “[i]f an affray occurs in the presence

of a constable, and the offenders run away and are immediately pursued by the constable and they enter a

house, then the doors may be broken open by the constable to apprehend them in the course of the immediate pursuit.” Id. The court in Macooh found further

support for Lord Halsbury’s analysis in the English

case of Swales v. Cox, [1981] QB 849, which states

that at common law “there was power of entry into

premises” in the case of “a constable following an offender running away from an affray.” 2 S.C.R. at 813,

817–18 (emphasis omitted). The Supreme Court of

Canada thus concluded that “it does not appear that

at common law the right to enter in hot pursuit was

limited to arrest for felonies.” Id.

The references in these sources to “an affray” supported the Macooh court’s conclusion that the common

law did not limit hot pursuit to felonies. An affray,

often referred to as a “breach of the peace,” see Atwater, 532 U.S. at 329 (citing common-law authorities

using these terms interchangeably), was classified as

a misdemeanor at common law, see Watson, 423 U.S.

12

at 440 (citing Horace L. Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 572–73 (1924)). In states

that still use the term “affray” in their criminal codes,

this offense remains a misdemeanor.4 And states that

now use other labels for this offense, such as “breach

of the peace” or “disorderly conduct,” also classify it as

a misdemeanor. See 4 Wharton’s Criminal Law § 540

(15th ed.) (collecting state statutes).5

The court in Macooh also stressed that the common law extended the hot pursuit exception to all misdemeanors, not just affray. Citing two Canadian

scholars who conducted an extensive survey of the

common law, the court observed that the common law

“recognized a right to enter in hot pursuit for any misdemeanour provided it was committed in the presence

of a police officer.”6 2 S.C.R. at 818 (emphasis added)

(citing W.F. Foster & Joseph E. Magnet, The Law of

Forcible Entry, 15 Alta. L. Rev. 271, 279 (1977)).

4

See, e.g., Fla. Stat. § 870.01(1); Ga. Code Ann. § 16-11-32;

Nev. Rev. Stat. § 203.050; N.M. Stat. Ann. § 30-20-2; N.C. Gen.

Stat. Ann. § 14-33; S.C. Code Ann. §§ 16-1-10(C), 16-5-120; see

also D.C. Code § 22-1301 (making the offense of “affray” punishable by no more than 180 days in prison).

5

See, e.g., Ala. Code § 13A-11-7; Ariz. Rev. Stat. Ann. § 132904; Colo. Rev. Stat. § 18-9-106; Cal. Penal Code Ann. § 415; In

re Alejandro G., 43 Cal. Rptr. 2d 471, 472 (Cal. Ct. App. 1995)

(noting that a violation of § 415 is a misdemeanor); Conn. Gen.

Stat. § 53a-181; Del. Code Ann. tit. 11, § 1301.

6

For that proposition, the Canadian scholars cited Professor

Wilgus’s Arrest Without a Warrant. See W.F. Foster & Joseph E.

Magnet, The Law of Forcible Entry, 15 Alta. L. Rev. 271, 279 n.71

(1977). This Court has frequently looked to Professor Wilgus’s

article when discerning common-law principles in Fourth

Amendment cases. See, e.g., Watson, 423 U.S. at 418.

13

Accordingly, the court found that Macooh’s failure

to stop for a police officer justified his warrantless residential arrest, holding that “a right of entry to make

an arrest in hot pursuit exists at common law, both

for indictable offences and for other types of offence.”

2 S.C.R. at 819; cf. A.K. Rice Amicus Br. 20–23, 41–42

(discussing the common-law roots of a categorical hot

pursuit exception).

3. Macooh is consistent with other Supreme

Court of Canada decisions applying the common law.

Both before and after Macooh, the Supreme Court of

Canada affirmed a categorical hot pursuit doctrine

rooted in the common law. In fact, even the dissenting

justice in Landry (which validated warrantless residential arrests for indictable offences) readily

acknowledged that warrantless residential arrests

were appropriate in cases of hot pursuit. See Landry,

1 S.C.R. at 168 (La Forest, J., dissenting) (citing

Semayne’s Case (1604) 77 Eng. Rep. 194 (KB)). The

dissent broadly characterized hot pursuit as a doctrine about “[f]ugitives from justice,” and it made no

distinctions based on the type of offence. Id. at 176.

And several years after Macooh, in Feeney, 2

S.C.R. at 49, the Supreme Court of Canada—in its

most recent pronouncement on residential arrests—

again affirmed the clear grounding of a categorical hot

pursuit exception in the common law. Although the

court disavowed Landry’s holding that police have a

general power to arrest without a warrant on private

premises, id. at 45–48, the court reaffirmed the categorical hot pursuit exception articulated in Macooh,

id. at 49 (noting the “well-established common law

power of the police to enter private premises to make

an arrest in hot pursuit”). Recognizing that Macooh

involved a non-indictable, provincial offence, the court

14

in Feeney nonetheless found it self-evident that in all

cases of hot pursuit, “society’s interest in effective law

enforcement takes precedence over the privacy interest.” Id.; see also Silveira, 2 S.C.R. at 351 (opinion of

L’Heureux-Dubé, J.) (noting the Macooh court’s recognition of the hot pursuit exception to the “sanctity of

the home” principle).

*

*

*

In sum, Canadian courts have recognized that the

doctrine of hot pursuit—and its undifferentiated application to all types of offences—is well-rooted in the

common law and uncontroversial.

II. THE CANADIAN EXPERIENCE DEMONSTRATES

THAT A CATEGORICAL RULE IS READILY ADMINISTRABLE AND ADEQUATELY PROTECTS

PRIVACY INTERESTS.

In the nearly thirty years since Macooh, lower

courts throughout Canada have consistently recognized that the hot pursuit exception applies to all

types of offences, including summary conviction criminal offences7 and provincial offences.8 Three decades

of cases applying Macooh demonstrates that a categorical rule has not led to rampant and unchecked police entry into homes. Courts have avoided that result

by diligently enforcing a readily administrable, narrow, and well-delineated hot pursuit exception. And

the many cases finding in favor of defendants confirm

that the categorical rule affords ample protection for

7

See R. v. K.(J.), 2002 BCPC 160 (Can.), ¶ 32; R. v. Bérubé

(G.), 1998 CanLII 28661 ¶ 13 (NB PC) (Can.).

8

See R. v. Sar, 2013 NBPC 23 (Can.), ¶ 141; R. v. Ballegeer,

2013 ABPC 128 (Can.), ¶ 33; R. v. Bate, [2002] M.J. No. 324 (MB

PC) (Can.), ¶ 92.

15

privacy and the sanctity of the home. It thus comes

as no surprise that Macooh’s categorical rule is widely

accepted and uncontroversial in Canada. Cf. A.K.

Rice Amicus Br. 24, 48.

A. For the exception to apply, courts require a

finding that there was a true “hot pursuit” of the defendant, defined in Macooh as “continuous pursuit

conducted with reasonable diligence, so that pursuit

and capture along with the commission of the offence

may be considered as forming part of a single transaction.” Macooh, 2 S.C.R. at 817 (citing R.E. Salhany,

Canadian Criminal Procedure 44 (5th ed. 1989)); cf.

A.K. Rice Amicus Br. 35. Without a finding of hot pursuit or another recognized exigent circumstance, a

warrantless arrest made in a private dwelling is unlawful. Feeney, 2 S.C.R. at 52.

In R. v. Caissie, [1999] N.B.J. No. 254 (Can.), for

example, the New Brunswick Court of Appeal declined to apply the hot pursuit exception because “the

police officer never signaled to [the defendant] to stop

nor even turned on his patrol car’s flashing lights,” id.

¶ 14, and thus “there was no pursuit by the police officer within the meaning of the definition of this concept in the Macooh decision,” id. ¶ 15. The court emphasized that hot pursuit “flows from a situation

where there has been an offence committed and the

pursuit of a fugitive offender in order to arrest him.”

Id. ¶ 16. The lack of hot pursuit meant that the officer

had no authority to detain the defendant on private

property. See id.

Similarly, in R. v. Sar, 2013 NBPC 23 (Can.), the

New Brunswick Provincial Court considered Macooh’s

definition of hot pursuit and concluded the exception

did not apply because the defendant was not in fact

fleeing from the police. Id. ¶¶ 142–43.

16

And in R. v. Robillard, [2012] S.J. No. 607 (Can.),

the Saskatchewan Provincial Court distinguished

Macooh because, unlike in that case, the police pursuit of the defendant “was not ‘continuous’ with the

commission of” the alleged offence. Id. ¶ 25. The prosecution thus failed to establish “that the police were

entitled to enter [the defendant’s] residence without

warrant because they were in hot or fresh pursuit.” Id.

These and many other similar decisions make

clear that lower courts in Canada have stringently enforced the threshold requirement that there must be

a hot pursuit within the meaning established by Macooh.9 Cf. A.K. Rice Amicus Br. 31–32 & n.3, 47 (explaining that relevant “lower court decisions” in U.S.

jurisdictions either apply or “are nearly uniformly

consistent with” the requirement that “[h]ot pursuit

occurs only where a reasonable person in the fleeing

suspect’s shoes would know the police were pursuing

him”).

B. Courts in Canada have also faithfully enforced

the important limitation that the police must have

reasonable and probable grounds to make an arrest at

9

See also, e.g., R. v. Fleet, [2015] N.S.J. No. 570 (NS PC)

(Can.), ¶ 25 (rejecting hot pursuit argument because “it was [the

officers’] investigation, not their pursuit of the accused, that

brought them” to the home); R. v. Bennett, [2012] N.J. No. 368

(NL PC) (Can.), ¶ 53 (“[T]he police were not involved in a hot

pursuit when they entered the residence. There was no pursuit

nor was there any connection between an alleged offence and the

entering of the residence to affect an arrest.”); R. v. Shott, [2006]

A.J. No. 1337 (AB PC) (Can.), ¶ 34 (“The facts as found by me do

not establish any ‘real continuity between the commission of the

offence and the pursuit undertaken by police.’ There was simply

no hot pursuit, much less even lukewarm pursuit.”).

17

the time of the pursuit for the hot pursuit exception to

apply. See, e.g., R. v. Stevens, [2011] O.J. No. 6059

(ON CJ) (Can.), ¶¶ 46–48 (distinguishing Macooh because officer did not have grounds to arrest the defendant until after she entered the defendant’s home);

R. v. Hyde, 2010 ABPC 30 (Can.), ¶¶ 31–34 (rejecting

application of hot pursuit exception where officer “admitted that he did not have grounds to arrest the accused for impaired driving when he first approached

him in the [defendant’s] garage”); R. v. Bate, [2002]

M.J. No. 324 (MB PC) (Can.), ¶ 97 (holding hot pursuit exception did not apply because “the police officers did not have reasonable and probable grounds to

arrest the accused at the time that they attended to

the door of his residence”).

As these decisions applying Macooh show, Canadian courts have focused on across-the-board limitations on the exception that are better tailored to curbing potential abuses, rather than drawing a line based

on offence categories. This approach makes good

sense: The risk of abuse lies in police entering homes

without having truly engaged in a hot pursuit or without probable cause to make an arrest in the first

place—and not, for example, in following disobedient

drivers, who already are subject to warrantless arrest

in public. See, e.g., Traffic Safety Act, R.S.A. 2000, c.

T-6, s. 169; cf. Atwater, 532 U.S. at 354. The Canadian

experience thus shows that Macooh’s categorical rule

is well equipped to deter law enforcement overreach.

Cf. A.K. Rice Amicus Br. 45–47 (“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.”).

18

C. Lower-court decisions in Canada also show

that, unlike an amorphous, case-by-case exception, a

categorical rule with clear parameters is “readily administrable”—an interest this Court has recognized

as important to the Fourth Amendment balance. See

Atwater, 532 U.S. at 347; cf. A.K. Rice Amicus Br. 32–

33. The Canadian experience demonstrates that a

lower court need only compare the situation at hand

to Macooh, thus avoiding the speculation, unpredictability, and lack of uniformity inherent to a case-bycase approach.

In R. v. Estey, 2008 NBPC 56 (Can.), for example,

the New Brunswick Provincial Court considered

whether the police lawfully entered the defendant’s

home without a warrant after the defendant sped toward a police car and then fled at high speed. “Given

the circumstances as described and the requirements

for such an entry outlined in Macooh,” the court concluded, “I can come to no other conclusion than that

the officer had the necessary grounds to enter the

home without an entry warrant as he was, at the time,

reasonably in ‘hot pursuit’ of the operator of the vehicle and had good reason to believe that the person had

entered the residence.” Id. ¶ 26; see also, e.g., R. v.

Deforest, 2009 SKPC 22 (Can.), ¶¶ 35, 45 (finding

that, under Macooh, warrantless arrest on porch was

proper where officers had “activated their emergency

lights” and “signalled for [the defendant] to stop,” but

“[h]is response was to speed away to a residence”); R.

v. Leblue, 2004 SKPC 107 (Can.), ¶ 35 (warrantless

arrest of defendant in private driveway was proper

where the officer “was in hot pursuit within the meaning of the [Macooh] definition”).

19

*

*

*

In short, nearly three decades of experience has

dispelled any concern that a categorical rule would

eviscerate the sanctity of the home and condone widespread and abusive warrantless entries, and the rule

has proven simple and straightforward to apply in

practice. Given this history, it is unsurprising that

there has not been academic criticism of Macooh10 or

any effort to reverse it in Parliament or the courts.11

10

For example, there is no negative commentary about Macooh in leading Canadian criminal procedure treatises. See Steve

Coughlan, Criminal Procedure 17, 329 (4th ed. 2020); Steven

Penney et al., Criminal Procedure in Canada, 137–38 (2d ed.

2018); Tim Quigley, Procedure in Canadian Criminal Law

§ 5.5(a) (2d ed. 2019); see also Steve Coughlan & Glen Luther,

Detention and Arrest 12, 44, 50–52, 260–61, 299 (2d ed. 2017).

11

See, e.g., Proceedings of the Standing Senate Committee on

Legal and Constitutional Affairs, Issue 12: Evidence (Dec. 16,

1997),

https://www.sencanada.ca/en/Content/SEN/Committee/361/lega/12ev-e (hot pursuit exception treated as uncontroversial in parliamentary discussions of legislation proposed to

codify Feeney).

20

CONCLUSION

The Supreme Court of Canada, applying the same

common-law principles that form the bedrock of this

Court’s Fourth Amendment jurisprudence, adopted

the same categorical rule as the court below. Canada’s 27-year experience under this categorical rule

has demonstrated it is effective, workable, and well

equipped to deter police abuse. The judgment below

should be affirmed.

Respectfully submitted,

DAVID DEBOLD

Counsel of Record

CLAIRE L. CHAPLA

THOMAS J. MCCORMAC IV

ROBERT A. BATISTA

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8551

ddebold@gibsondunn.com

Counsel for Amicus Curiae

January 15, 2020