Amicus Curiae Brief — Arthur Gregory Lange, Petitioner v. California
Supreme Court briefJan 15, 2021
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No. 20-18
In the Supreme Court of the United States
ARTHUR GREGORY LANGE, PETITIONER
v.
STATE OF CALIFORNIA
ON WRIT OF CERTIORARI
TO THE CALIFORNIA COURT OF APPEAL,
FIRST APPELLATE DISTRICT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING AFFIRMANCE
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
DAVID P. BURNS
Acting Assistant Attorney
General
ERIC J. FEIGIN
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor
General
ANDREW C. NOLL
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether a state law-enforcement officer’s pursuit of
petitioner, whom the officer had probable cause to arrest for a misdemeanor offense and who was on notice
that the officer was trying to stop him, into a home garage was reasonable under the Fourth Amendment.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 1
Summary of argument ................................................................. 4
Argument....................................................................................... 7
I. An officer in hot pursuit based on probable cause to
arrest for a misdemeanor may reasonably continue
pursuit when the suspect leads him into a residence .... 8
A. This Court has recognized hot pursuit of a
fleeing suspect as an exigent circumstance that
can justify warrantless entry into a home .............. 8
B. The considerations that support the hotpursuit rule apply in the misdemeanor context ... 16
C. Petitioner’s objections to applying the hotpursuit rule to misdemeanors are unsound .......... 22
II. The warrantless garage entry in this case was
reasonable under the circumstances and
constitutionally permissible ........................................... 30
Conclusion ................................................................................... 32
TABLE OF AUTHORITIES
Cases:
Atwater v. City of Lago Vista, 532 U.S. 318
(2001) .............................................................11, 18, 24, 25, 26
Berkemer v. McCarty, 468 U.S. 420 (1984) ......................... 19
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) ............ 23
Brigham City v. Stuart, 547 U.S. 398 (2006) ...... 8, 13, 23, 28
California v. Hodari D., 499 U.S. 621 (1991) ..................... 12
Chimel v. California, 395 U.S. 752 (1969) ........................... 16
City & Cnty. of San Francisco v. Sheehan,
575 U.S. 600 (2015).............................................................. 21
City of Middletown v. Flinchum, 765 N.E.2d 330
(Ohio 2002) ........................................................................... 17
(III)
IV
Cases—Continued:
Page
Collins v. Virginia, 138 S. Ct. 1663 (2018) ............................ 9
Commonwealth v. Jewett, 31 N.E.3d 1079
(Mass. 2015) ......................................................................... 12
Coolidge v. New Hampshire, 403 U.S. 443 (1971) .............. 16
County of Riverside v. McLaughlin,
500 U.S. 44 (1991) ............................................................... 26
Fernandez v. California, 571 U.S. 292 (2014) .................... 15
Georgia v. Randolph, 547 U.S. 103 (2006) .......................... 16
Graham v. Connor, 490 U.S. 386 (1989) .............................. 29
Heien v. North Carolina, 574 U.S. 54 (2014) ...................... 21
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177
(2004) .................................................................................... 13
Illinois v. Wardlow, 528 U.S. 119 (2000) ............................. 11
Johnson v. United States, 333 U.S. 10 (1948) ............... 20, 23
Katz v. United States, 389 U.S. 347 (1967) ......................... 15
Kentucky v. King, 563 U.S. 452 (2011) ...................... 8, 23, 30
Magruder v. United States, 62 A.3d 720
(D.C. 2013) ........................................................................... 19
Maryland v. Buie, 494 U.S. 325 (1990) ............................... 16
Maryland v. King, 569 U.S. 435 (2013) ......................... 13, 15
Michigan v. Tyler, 436 U.S. 499 (1978) ................................. 8
Mincey v. Arizona, 437 U.S. 385 (1978) .............................. 23
Minnesota v. Carter, 525 U.S. 83 (1998) ............................. 15
Missouri v. McNeely, 569 U.S. 141 (2013) .................... 21, 23
Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019)............... 14, 20
Payton v. New York, 445 U.S. 573 (1980) ........................... 24
People v. Lloyd, 265 Cal. Rptr. 422 (Cal. Ct. App.
1989) ....................................................................................... 4
People v. Simmons, 569 N.E.2d 591 (Ill. App. Ct.
1991) ..................................................................................... 14
Riley v. California, 573 U.S. 373 (2014) .............................. 15
V
Cases—Continued:
Page
Scher v. United States, 305 U.S. 251 (1938) .................... 9, 22
Scott v. Harris, 550 U.S. 372 (2007) ......................... 11, 12, 29
Semayne’s Case, (1604) 77 Eng. Rep. 194 (K.B.) ............... 26
Smith v. Stoneburner, 716 F.3d 926 (6th Cir. 2013) .......... 28
Stanton v. Sims, 571 U.S. 3 (2013)........................... 16, 17, 23
State v. Hamilton, 840 P.2d 1061
(Ariz. Ct. App. 1992) ........................................................... 14
State v. Legg, 633 N.W.2d 763 (Iowa 2001) ......................... 11
State v. Ricci, 739 A.2d 404 (N.H. 1999).............................. 12
Steagald v. United States, 451 U.S. 204
(1981) .................................................................. 14, 19, 23, 26
Sykes v. United States, 564 U.S. 1 (2011), overruled
by Johnson v. United States, 576 U.S. 591 (2015) ........... 12
Tennessee v. Garner, 471 U.S. 1 (1985) ................... 18, 24, 29
Trent v. Wade, 776 F.3d 368 (5th Cir. 2015) ................. 28, 29
United States v. Brewster, 408 U.S. 501(1972) ................... 25
United States v. Ramirez, 523 U.S. 65 (1998) .................... 29
United States v. Robinson, 414 U.S. 218 (1973) ................. 19
United States v. Santana, 427 U.S. 38 (1976)............ passim
United States v. Watson, 423 U.S. 411 (1976) .................... 11
Vale v. Louisiana, 399 U.S. 30 (1970) ................................. 23
Virginia v. Moore, 553 U.S. 164 (2008) ......................... 19, 24
Voisine v. United States, 136 S. Ct. 2272 (2016) ................ 18
Warden v. Hayden, 387 U.S. 294 (1967) ............................. 10
Welsh v. Wisconsin, 466 U.S. 740 (1984)................. 16, 20, 23
Williamson v. United States, 207 U.S. 425 (1908) ............. 25
Wyoming v. Houghton, 526 U.S. 295 (1999) ....................... 26
Constitution, statutes, and rules:
U.S. Const. Amend. IV................................................. passim
VI
Statutes and rules—Continued:
Page
Cal. Penal Code:
§ 148(a)(1) (West 2014) ......................................... 4, 28, 31
§ 415(1) (West 2020) ........................................................ 25
§ 836.6 (West 2008) .......................................................... 25
Cal. Veh. Code:
§ 2800(a) (West 2015) .................................................. 4, 31
§ 23152(d) (West Supp. 2014) ........................................... 1
§ 40000.7(a)(2) (West 2014)............................................... 4
Colo. Rev. Stat. §16-3-303 (2020) ......................................... 14
Iowa Code § 321J.10.3 (2020) ............................................... 15
Mass. Gen. Laws ch. 276, § 2B (2015) .................................. 14
Fed. R. Crim. P.:
Rule 4.1 ............................................................................. 14
Rule 4(b)(1)(A) ................................................................. 14
Miscellaneous:
American Law Institute, Code of Criminal Procedure
(1930) .................................................................................... 25
Bureau of Justice Statistics, Office of Justice
Programs, U.S. Dep’t of Justice, Police Vehicle
Pursuits, 2012-2013 (May 2017), https://www.
bjs.gov/content/pub/pdf/pvp1213.pdf .......................... 12, 30
1 Richard Burn, The Justice of the Peace, and Parish
Officer (14th ed. 1780) ........................................................ 24
4 Edward Coke, Institutes of the Laws of England
(6th ed. 1681) ................................................................. 25, 26
2 Matthew Hale, The History of the Pleas of the
Crown (1736) ....................................................................... 25
9 Earl of Halsbury et al., The Laws of England
(1909) .................................................................................... 25
2 William Hawkins & Thomas Leach, A Treatise of
the Pleas of the Crown (6th ed. 1787) ............................... 24
VII
Miscellaneous—Continued:
Page
Wayne R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment (5th ed. 2012):
Vol. 2 ................................................................................. 14
Vol. 3 ................................................................................. 14
2 Frederick Pollock & Frederic William Maitland,
The History of English Law (2d ed. 1909) ....................... 24
Horace L. Wilgus, Arrest Without a Warrant,
22 Mich. L. Rev. 798 (1924) ................................................ 25
Civil Rights Div., U.S. Dep’t of Justice, Investigation
of the Baltimore City Police Department (Aug. 10,
2016), https://www.justice.gov/crt/file/883296/
download .............................................................................. 30
Civil Rights Div. & U.S. Att’y’s Office of N. Dist. of
Ill., U.S. Dep’t of Justice, Investigation of the
Chicago Police Department (Jan. 13, 2017),
https://www.justice.gov/opa/file/925846/download. ......... 30
In the Supreme Court of the United States
No. 20-18
ARTHUR GREGORY LANGE, PETITIONER
v.
STATE OF CALIFORNIA
ON WRIT OF CERTIORARI
TO THE CALIFORNIA COURT OF APPEAL,
FIRST APPELLATE DISTRICT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING AFFIRMANCE
INTEREST OF THE UNITED STATES
This case presents the question of an officer’s ability
under the Fourth Amendment to the federal Constitution to pursue a suspect into a residence, when the officer has probable cause to arrest the suspect for a misdemeanor offense and the suspect is on notice that the
officer is trying to stop him. The question presented
may arise in the context of federal law enforcement in
national parks or on other federal land, or in federal
prosecutions based on arrests by state or local police.
The United States therefore has a substantial interest
in the Court’s resolution of the question presented.
STATEMENT
Following a no-contest plea in state court, petitioner
was convicted on one count of driving under the influence of alcohol, in violation of California Vehicle Code
(1)
2
§ 23152(d) (West Supp. 2014). Pet. App. 6a; Resp. Br. 8.
The Superior Court denied petitioner’s motion to suppress evidence. Pet. App. 4a. On interlocutory appeal
and again after petitioner’s conviction, the Appellate
Division of the Superior Court affirmed. Id. at 23a-25a,
26a-27a. The California Court of Appeal granted petitioner’s motion for the discretionary transfer of his appeal and affirmed the denial of his suppression motion.
Id. at 1a-22a.
1. At around 10:20 p.m. on October 7, 2016, California Highway Patrol Officer Aaron Weikert was parked
along a state highway in Sonoma County, California.
Pet. App. 2a. Officer Weikert observed a car “playing
music very loudly” and saw the driver, later identified
as petitioner, “honk[] the car’s horn four or five times,”
even though no vehicles were in front of the driver.
Ibid. Officer Weikert followed petitioner’s car, “intending to conduct a traffic stop,” ibid., for violating two provisions of the California Vehicle Code, id. at 16a; see
Pet. Br. 2-3; Resp. Br. 6.
After petitioner made a right turn, no vehicles were
between Officer Weikert and petitioner. Pet. App. 2a.
Officer Weikert continued to follow petitioner, who
later made a left turn and then “stopped for a few seconds.” Ibid. When petitioner began to move forward,
Officer Weikert activated his overhead lights. Id. at 2a3a, 16a. No other cars were on the street, and the officer’s lights illuminated the area around petitioner’s
car. Id. at 16a.
Instead of stopping, petitioner drove a distance of
about one hundred feet, taking approximately four
more seconds, and turned into a driveway. Pet. App. 3a,
17a. Petitioner’s car entered a garage, and the garage
door began to close. Id. at 3a. Officer Weikert “exited
3
his vehicle, approached the garage door, stuck his foot
‘in front of the sensor[,] and the garage door started to
go back up.’ ” Ibid. Officer Weikert then entered the
garage and asked petitioner if he had noticed the officer
following him. Ibid. Petitioner denied that he had.
Ibid. Smelling alcohol on petitioner’s breath, Officer
Weikert ordered petitioner out of the garage for field
sobriety tests. Pet. Br. 4; see Resp. Br. 7.
2. Petitioner was charged with the misdemeanor of
driving under the influence of alcohol “and with the infraction of operating a vehicle’s sound system at excessive levels.” Pet. App. 2a. The prosecution later added
an allegation that petitioner had a prior conviction for
driving under the influence. Ibid.
Petitioner moved to suppress evidence, arguing that
the entry into the garage violated the Fourth Amendment because it was not pursuant to a warrant. Pet.
App. 2a. The District Attorney opposed the motion, on
the ground that probable cause to arrest petitioner for
the misdemeanor offense of failing to stop for the flashing police lights, and exigent circumstances, rendered
Officer Weikert’s actions constitutionally permissible.
Id. at 3a-4a; see Resp. Br. 7-8. The Superior Court denied suppression, Pet. App. 4a, and the Appellate Division affirmed in an interlocutory appeal, id. at 26a-27a.
Petitioner pleaded no contest to the charge of driving under the influence and appealed. Pet. App. 6a. The
Appellate Division again affirmed. Id. at 23a-25a.
3. The California Court of Appeal granted petitioner’s motion for the transfer of his appeal and affirmed. Pet. App. 1a-21a.
The California Court of Appeal found that petitioner’s
actions in “ ‘playing music very loudly’ ” and “honking
4
the horn unnecessarily” justified Officer Weikert’s “attempt to stop [petitioner’s] vehicle” for violations of the
Vehicle Code. Pet. App. 16a. And after reviewing the
evidence, including the video recording from Officer
Weikert’s dashboard camera, the court additionally
found that “a reasonable person in [petitioner’s] position would have known the officer intended for him to
pull over.” Id. at 17a.
Because California law makes it “a misdemeanor to
willfully resist, delay or obstruct a peace officer in the
discharge of his duties,” as well as to “ ‘willfully fail or
refuse to comply with a lawful order, signal, or direction
of a peace officer,’ ” the California Court of Appeal determined that petitioner’s conduct gave Officer Weikert
probable cause for an arrest. Pet. App. 17a (quoting
Cal. Veh. Code § 2800(a) (West 2015); citing Cal. Penal
Code § 148(a)(1) (West 2014) and Cal. Veh. Code
§ 40000.7(a)(2) (West 2014)); see id. at 18a. The court
then found that Officer Weikert’s pursuit of petitioner
into the garage to “prevent [petitioner] from frustrating
the arrest which had been set in motion in a public place
constitute[d] a proper exception to the warrant requirement.” Id. at 18a (quoting People v. Lloyd, 265 Cal.
Rptr. 422, 425 (Cal. Ct. App. 1989)).
4. The Supreme Court of California denied petitioner’s petition for review. Pet. App. 28a.
SUMMARY OF ARGUMENT
This Court has long recognized that the Fourth
Amendment permits officers in hot pursuit of a suspect
based on probable cause to continue that pursuit if the
suspect leads them into a residence. Although the
Court has thus far addressed the rule only in the felony
context, the rule’s logic creates at least a general presumption that a suspect should similarly be unable to
5
thwart an otherwise-lawful public encounter by fleeing
into a residence when officers have probable cause to
believe the suspect has committed a misdemeanor.
Contrary to petitioner’s contentions, the rule’s application in the misdemeanor context is neither foreclosed by
the common law, which was divided on the subject, nor
by policy concerns, which are not unique to the misdemeanor context and are appropriately addressed by
other Fourth Amendment doctrines.
I. The touchstone of the Fourth Amendment is reasonableness, and a search or seizure based on probable
cause may be reasonable under the circumstances even
without a warrant. One circumstance in which this
Court has found it reasonable for the police to proceed
without a warrant is when they are in hot pursuit of a
suspect who chooses to bring an otherwise-public encounter into a residence.
Significant justifications support this Court’s classification of pursuit as an exigency that can permit warrantless entry into a home. The hot-pursuit rule allows
officers to effectuate arrests that a suspect’s flight has
precluded them from making in public, to protect the
public from the dangers that a fleeing suspect creates,
and to ensure that a suspect does not entirely evade
identification and detention. Because the act of flight
itself will frequently preclude officers from learning
enough about a suspect to identify him or the nature of
the residence that he has entered, it will be difficult for
officers to obtain warrants, let alone to obtain them with
the necessary rapidity, when a suspect leads them into
a residence. And any privacy interest that a suspect
may have in foreclosing a limited entry into the residence is diminished, if not forfeited, by his choice to
move the encounter there.
6
The Court has described the hot-pursuit rule in categorical terms, and the rule’s justifications are not limited to the felony context in which the Court has previously had occasion to apply it. Its logic is not primarily
based on the seriousness of a suspect’s offense, and the
line between felonies and misdemeanors is often blurry,
technical, and difficult for officers to apply in quickly
evolving situations. Even if the rule is not categorical in
misdemeanor cases, and instead requires circumstancespecific consideration of the potentially nonviolent or extremely minor nature of a particular suspected offense,
the totality of the circumstances will typically favor the
rule’s application. Thus, the hot-pursuit rule should at
least presumptively apply in the misdemeanor context.
Petitioner’s efforts to limit the rule are unsound. At
the outset, petitioner errs in asserting that hot pursuit,
even in the felony context, is not a true exigent circumstance that can itself justify warrantless entry into a
home. Contrary to his suggestion, this Court has
treated the hot-pursuit rule as a standalone rule that allows warrantless entry even in the absence of a separate
recognized exigency, such as the risk of destruction of
evidence. Likewise contrary to petitioner’s suggestion,
the common law did not clearly prohibit in-home arrests
in hot pursuit of a fleeing misdemeanor suspect. And
while petitioner observes that pursuits may raise safety
and related concerns, several doctrines—such as the requirement that the manner of entry be reasonable—
appropriately address those concerns.
II. On the facts of this case, Officer Weikert’s warrantless entry into petitioner’s garage was reasonable.
The officer observed petitioner violate multiple provisions of the California Vehicle Code; the lower courts
7
determined that a reasonable person in petitioner’s position would have understood that the officer was attempting to stop him on the public streets; and petitioner nonetheless failed to comply and led the officer
to the garage. The officer’s manner of entry was reasonable and the intrusion on petitioner’s privacy interests was limited. In these circumstances, petitioner’s
act of leaving the public road when an officer validly
tried to pull him over should not be permitted to thwart
an otherwise-lawful law-enforcement encounter.
ARGUMENT
The state courts correctly denied petitioner’s suppression motion in this case. Petitioner does not dispute
that the case involves hot pursuit by a law-enforcement
officer who had probable cause to arrest him for a misdemeanor offense. Even if those two circumstances
would not in themselves categorically justify continuing
pursuit into a residence in every case, such continued
pursuit will generally be reasonable under the Fourth
Amendment. So long as an officer does not effectuate
the pursuit in an unreasonable manner, the hot-pursuit
rule—well established in the felony context—would
typically preclude a suspect from frustrating a lawful
public encounter, based on probable cause to believe the
suspect has committed a misdemeanor, by fleeing into a
residence. And Officer Weikert’s actions in this case
were reasonable.
8
I. AN OFFICER IN HOT PURSUIT BASED ON PROBABLE
CAUSE TO ARREST FOR A MISDEMEANOR MAY
REASONABLY CONTINUE PURSUIT WHEN THE SUSPECT LEADS HIM INTO A RESIDENCE
A. This Court Has Recognized Hot Pursuit Of A Fleeing
Suspect As An Exigent Circumstance That Can Justify
Warrantless Entry Into A Home
1. The Fourth Amendment to the United States
Constitution provides that “[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not
be violated” and that “no Warrants shall issue, but upon
probable cause.” U.S. Const. Amend. IV. This Court
has explained that “the ‘ultimate touchstone of the
Fourth Amendment is ‘reasonableness’ ” and has recognized many circumstances in which warrantless entry
into a home is reasonable. Brigham City v. Stuart, 547
U.S. 398, 403 (2006) (citation omitted). Those circumstances include where the “ ‘exigencies of the situation’
make the needs of law enforcement so compelling that
[a] warrantless search is objectively reasonable.” Kentucky v. King, 563 U.S. 452, 460 (2011) (citation omitted;
brackets in original).
This Court has listed “ ‘hot pursuit’ of a fleeing suspect” as one distinct type of “exigent circumstance” that
will justify a warrantless entry. Brigham City, 547 U.S.
at 403 (quoting United States v. Santana, 427 U.S. 38,
42-43 (1976)). Others include “assist[ing] persons who
are seriously injured or threatened with such injury”;
“prevent[ing] the imminent destruction of evidence”;
and “ent[ering] onto private property to fight a fire and
investigate its cause.” Ibid.; see King, 563 U.S. at 460;
Michigan v. Tyler, 436 U.S. 499, 509 (1978). And the
Court’s precedents make clear that, while the different
9
types of exigent circumstances sometimes overlap, hot
pursuit can in itself justify a warrantless entry.
Although the Court did not use the specific term “hot
pursuit,” it appears to have first upheld a home arrest
under that doctrine in Scher v. United States, 305 U.S.
251 (1938); see Collins v. Virginia, 138 S. Ct. 1663, 1674
(2018) (characterizing Scher’s reasoning as “sounding
* * * perhaps most appropriately [in] hot pursuit”).
There, federal officers observed a bootlegging offense
in public. Scher, 305 U.S. at 253. They then pursued
the suspect and ultimately arrested him after he drove
his vehicle into an open garage behind his residence. Id.
at 253-255. Although the officers did not have a warrant, the Court observed that “just before [the suspect]
entered the garage[,] the following officers properly
could have stopped [his] car, made search and put him
under arrest.” Id. at 255. And the Court held that
“[p]assage of the car into the open garage closely followed by the observing officers did not destroy this
right,” as “[t]he officers did nothing either unreasonable or oppressive.” Ibid.
The Court again upheld a home arrest under the hotpursuit rule in United States v. Santana, supra. There,
an undercover officer arranged to accompany a streetlevel drug dealer to purchase heroin from Santana’s
home. 427 U.S. at 39. After the purchase, officers drove
back to the house and saw Santana standing in the doorway. Id. at 40. They then pulled up to within 15 feet of
Santana, got out of the police van, “shout[ed] ‘police,’
and display[ed] their identification.” Ibid. Santana,
however, “retreated into the vestibule of her house.”
Ibid. The officers followed through the open door, arrested Santana, and seized evidence in her control. Id.
at 40-41. Echoing Scher, this Court noted that officers
10
had initially sought to arrest Santana in a “ ‘public’
place”; explained that “the warrantless arrest of an individual in a public place upon probable cause [does] not
violate the Fourth Amendment”; and rejected the proposition that Santana’s “act of retreating into her house
could thwart an otherwise proper arrest.” Id. at 42.
The Court in Santana observed that in Warden v.
Hayden, 387 U.S. 294 (1967), it had “recognized the
right of police, who had probable cause to believe that
an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber
and to search for weapons.” Santana, 427 U.S. at 42. It
noted that Hayden, which involved eyewitness reports
rather than firsthand police observation of the suspect’s
crime and flight, had not even “involve[d] a ‘hot pursuit’
in the sense that that term would normally be understood.” Id. at 43 n.3; see Hayden, 387 U.S. at 297-298.
It accordingly reasoned that the case before it, “involving a true ‘hot pursuit,’ [was] clearly governed by” Hayden, because “the need to act quickly” was “even
greater * * * while the intrusion [was] much less.”
Santana, 427 U.S. at 42-43 (footnote omitted). And it
“conclude[d],” in general terms, “that a suspect may not
defeat an arrest which has been set in motion in a public
place, and is therefore proper * * * , by the expedient
of escaping to a private place.” Id. at 43.
2. Significant justifications support this Court’s
classification of hot pursuit as a distinct type of exigent
circumstance that can permit warrantless entry into a
home. To determine whether a warrantless search or
seizure is reasonable, this Court “balance[s] the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.”
11
Scott v. Harris, 550 U.S. 372, 383 (2007) (citation omitted). The hot-pursuit rule serves important government interests that are independent from other recognized exigencies. Where law-enforcement officers have
probable cause to believe a suspect has committed an
offense, the suspect’s flight from a public encounter
with the police may suggest that he has in fact committed a crime, possibly a more serious one than the one
the officer suspects; that he may pose a danger to occupants of the home to which he flees; or that, once inside,
he may take further, perhaps dangerous, action to elude
the police. See Illinois v. Wardlow, 528 U.S. 119, 124
(2000) (“Headlong flight—wherever it occurs—is the
consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of
such.”).
Most fundamentally, the hot-pursuit rule furthers vital interests in the rule of law and compliance with governmental authority. Where officers have probable
cause to believe a crime has been committed, the Fourth
Amendment permits the warrantless arrest of an individual in a public place, for both felony and misdemeanor offenses, without any showing of exigent circumstances. United States v. Watson, 423 U.S. 411,
416-417, 423-424 (1976) (felonies); Atwater v. City of
Lago Vista, 532 U.S. 318, 323, 354 (2001) (misdemeanors
committed in the officer’s presence). By disabling a suspect from preventing a lawful police action “by the expedient of escaping to a private place,” Santana, 427
U.S. at 43, the hot-pursuit rule effectuates the
“[s]ociet[al] * * * interest in not rewarding the evasion
of lawful police authority” or turning law enforcement
into a game of tag, where all the suspect need do is make
it to a residence. State v. Legg, 633 N.W.2d 763, 772
12
(Iowa 2001); see also, e.g., Commonwealth v. Jewett, 31
N.E.3d 1079, 1089 (Mass. 2015); State v. Ricci, 739 A.2d
404, 408 (N.H. 1999).
The hot-pursuit rule also secures the “paramount
governmental interest in ensuring public safety” by encouraging suspects to stop rather than flee to a residence. Scott, 550 U.S. at 383; see California v. Hodari
D., 499 U.S. 621, 627 (1991) (“Street pursuits always
place the public at some risk, and compliance with police
orders to stop should therefore be encouraged.”). A
suspect who believes that police cannot pursue him into
a residence will have a significant incentive to flee to a
residence—whether his own or another’s—potentially
endangering himself, law enforcement, and innocent
bystanders. A suspect’s “determination to elude capture,” particularly in a vehicle, demonstrates a “lack of
concern for the safety of property and persons” of others. Sykes v. United States, 564 U.S. 1, 8 (2011), overruled by Johnson v. United States, 576 U.S. 591 (2015);
see Scott, 550 U.S. at 384; see also Court-Appointed
Amicus Curiae Br. (Amicus Br.) 15 (noting potential for
“more—and more reckless—flight”). Cases of vehicular flight result in a significant number of fatalities each
year. See, e.g., Bureau of Justice Statistics, Office of
Justice Programs, U.S. Dep’t of Justice, Police Vehicle
Pursuits, 2012-2013, at 1 (May 2017), https://www.
bjs.gov/content/pub/pdf/pvp1213.pdf (Police Vehicle
Pursuits) (reporting an average of 355 deaths per year
from vehicular pursuits from 1996 to 2015). Although
officers may choose to decline to pursue fleeing suspects in light of these dangers, where pursuit is in progress, officers should not have to break off the chase to
await the clear development of a threat of serious injury
13
to innocents or imminent destruction of evidence, see
Brigham City, 547 U.S. at 403, before resuming pursuit.
That is particularly so because breaking off pursuit
may allow a potentially unidentifiable suspect to get
away entirely. See Hiibel v. Sixth Judicial Dist. Court,
542 U.S. 177, 186 (2004) (recognizing identification as an
“important government interest[]”). Whether the flight
that leads to a residence is on foot or in a car, an officer
may only have gotten a glimpse of the suspect’s basic
physical attributes or current articles of clothing. And
the officer may well be unsure of whether a suspect
driver is the registered owner of the vehicle, or whether
a suspect lives in the residence to which he has fled. If
the officer could not pursue the suspect into the residence, the suspect could change clothing, remove identifying items, or simply run out the back door—
effectively destroying evidence of his identity—while
the officer tries to obtain a warrant. Cf. Maryland v.
King, 569 U.S. 435, 450 (2013) (“It is a well recognized
aspect of criminal conduct that the perpetrator will take
unusual steps to conceal not only his conduct, but also
his identity.”) (citation omitted). Such a warrant would
have been unnecessary absent the suspect’s flight and
may be impossible to execute in the absence of the identification that the flight prevented the officer from obtaining.
Because it would not take long for the suspect to hide
himself among other occupants or leave the residence
through an uncovered exit, that problem would exist
even if, as petitioner assumes (Br. 14-15, 36), an officer
will generally be able to obtain an arrest warrant within
minutes, while remaining on the scene. But in many
cases, obtaining such a warrant will be impossible. As
a threshold matter, if the suspect has fled into someone
14
else’s residence—a fact the officer often will not know—
an arrest warrant alone may be insufficient. See
Steagald v. United States, 451 U.S. 204, 205-206, 221222 (1981) (generally requiring search warrant to enter
third-party residence for an arrest, with exception for
hot pursuit). Furthermore, although “John Doe” arrest
warrants are “not inherently in conflict with the Fourth
Amendment,” 3 Wayne R. LaFave, Search and Seizure:
A Treatise on the Fourth Amendment § 5.1(h), at 93
(5th ed. 2012), courts may hold that warrant applications with little identifying information are insufficient,
see, e.g., State v. Hamilton, 840 P.2d 1061, 1062-1063
(Ariz. Ct. App. 1992) (search warrant); People v. Simmons, 569 N.E.2d 591, 595-596 (Ill. App. Ct. 1991)
(same); see generally Fed. R. Crim. P. 4(b)(1)(A) (requiring “defendant’s name or, if it is unknown, a name
or description by which the defendant can be identified
with reasonable certainty”). And “even in our age of
rapid communication,” warrants “ ‘inevitably take some
time for police officers or prosecutors to complete and
for magistrate judges to review,’ ” and there is no
“ ‘guarantee that a magistrate judge will be available
when an officer needs a warrant’ ” late at night. Mitchell v. Wisconsin, 139 S. Ct. 2525, 2539 (2019) (plurality
opinion) (citation omitted). *
Although many States and the Federal Rules of Criminal Procedure permit application for a warrant over a telephone or through
electronic means, see 2 LaFave § 4.3(c), at 648-649 & n.29 (collecting
state laws); Fed. R. Crim. P. 4.1 (outlining procedures), those procedures may still take significant time. Cf. Resp. Br. 33 (stating that
“warrants can sometimes be obtained in under an hour”) (emphasis
added). And other States still require the application to be in writing, e.g., Colo. Rev. Stat. § 16-3-303 (2020); require the applicant to
appear in person before a judge, e.g., Mass. Gen. Laws ch. 276, § 2B
*
15
3. The hot-pursuit rule not only protects important
public and governmental interests, but involves the significantly diminished privacy interests of a suspect who
voluntarily moves the location of a police encounter
from a public place to a residence. This Court has recognized that arrestees have “reduced privacy interests,” Riley v. California, 573 U.S. 373, 391 (2014); see
King, 569 U.S. at 462, and a suspect who eludes a lawful
public arrest should be treated similarly. The suspect’s
reduced privacy interests include both his interest in his
person and any interest he may have in the residence
into which he has taken what would otherwise be a public encounter. Cf. Katz v. United States, 389 U.S. 347,
351 (1967) (“What a person knowingly exposes to the
public, even in his own home or office, is not a subject of
Fourth Amendment protection.”).
Permitting a fleeing suspect to invoke the usual
sanctuary of the home would inappropriately allow him
to bootstrap the “expedient” of his own flight into
greater Fourth Amendment protection. Santana, 427
U.S. at 43. If it is not his own home, he generally will
have no Fourth Amendment interest in it at all. See
Minnesota v. Carter, 525 U.S. 83, 90 (1998). If it is, but
he lives with others (see Pet. Br. 37; Resp. Br. 22), the
other residents’ interests are necessarily diminished,
because living with someone else always presents the
risk that he or she might—through words or deeds—
invite the police into the home. See Fernandez v. California, 571 U.S. 292, 300 (2014). And that is exactly
what a suspect does when he chooses to avoid an otherwise-public encounter by fleeing into a residence.
(2015); or limit oral warrant applications to certain types of cases,
e.g., Iowa Code § 321J.10.3 (2020).
16
To the extent that anyone with a sufficient interest
in the residence objects to police entry, the Fourth
Amendment requirement of a reasonable entry accommodates that concern. See pp. 28-29, infra; cf. Georgia
v. Randolph, 547 U.S. 103, 106 (2006). Any intrusion on
privacy interests is also limited, because an officer’s
hot-pursuit entry into a home provides the officer only
with circumscribed authority. In a hot-pursuit case, an
officer enters a home to continue a public encounter—
not to conduct a thorough search of the home. The officer must possess probable cause to arrest and, absent
other circumstances, generally will be limited to making
an arrest, conducting a search incident to the arrest
(i.e., searching the suspect’s person and area within his
immediate control), and seizing evidence discovered in
plain view. See Coolidge v. New Hampshire, 403 U.S.
443, 466 (1971); Chimel v. California, 395 U.S. 752, 762763 (1969); see also Maryland v. Buie, 494 U.S. 325, 336
(1990) (permitting a limited, protective sweep when
“justified by a reasonable, articulable suspicion that the
house is harboring a person posing a danger to those on
the arrest scene”).
B. The Considerations That Support The Hot-Pursuit
Rule Apply In The Misdemeanor Context
This Court’s foundational hot-pursuit cases have involved probable cause to believe that a suspect has committed a felony offense. As the Court has recognized,
however, “though Santana involved a felony suspect,
[the Court] did not expressly limit [its] holding based on
that fact.” Stanton v. Sims, 571 U.S. 3, 9 (2013) (per
curiam). And while the Court held in Welsh v. Wisconsin, 466 U.S. 740 (1984), that a warrant is usually required for an in-home arrest based on probable cause
that a suspect committed a non-jailable misdemeanor,
17
Welsh did not involve a hot pursuit, and “nothing in the
opinion establishes that the seriousness of the crime is
equally important in cases of hot pursuit.” Stanton, 571
U.S. at 9 (emphasis omitted). That is for good reason.
The justifications for warrantless entry into a home in
felony hot-pursuit cases will typically, if not invariably,
extend to misdemeanor cases as well.
1. The considerations underlying the hot-pursuit
rule do not generally depend on whether the officer’s
probable cause to arrest is for a felony or a misdemeanor. The public interests in prohibiting suspects
from thwarting lawful public encounters, deterring potentially dangerous flight, and enabling the identification of suspects are not limited to the felony context.
Allowing flight into a residence to provide sanctuary
from an otherwise-lawful public misdemeanor arrest
would inappropriately suggest that “flight from police
officers is justified and reasonable as long as no felony
offense has been committed.” City of Middletown v.
Flinchum, 765 N.E.2d 330, 332 (Ohio 2002). Similarly,
a suspect’s flight from police can present risks to himself, pursuing officers, and the public irrespective of the
particular offense that precipitated it. And a suspect’s
ability to alter his appearance, hide himself among
other individuals in the home, or effectuate escape
through a residence does not depend on the nature of
the officer’s probable cause to arrest him.
The State suggests (Br. 26) that “the risk” of escape “is
less pronounced in misdemeanor-pursuit cases.” It posits,
in particular, that misdemeanor suspects are unlikely to
flee once they arrive in the home because doing so could
expose the suspect to further criminal penalties and physical danger, while “a successful escape might provide only
a temporary reprieve from apprehension.” Ibid. But in
18
any hot-pursuit case—felony or misdemeanor—the suspect already has chosen to flee once, suggesting his willingness to take on the risks of flight again. Moreover,
as noted above, his flight may suggest that he has committed a more serious crime than the one of which the
pursuing officer is currently aware. In any event, an
officer simply has no way to know what the suspect intends. And any privacy interest that the suspect may
have in the residence is diminished by his decision to
move a public encounter there, regardless of whether
his crime is classified as a felony or a misdemeanor.
Indeed, the line between felonies and misdemeanors
is not as clear as petitioner and the State suggest. As
this Court has observed, “numerous misdemeanors involve conduct more dangerous than many felonies.”
Tennessee v. Garner, 471 U.S. 1, 14 (1985); see id. at 14
n.12; see also, e.g., Voisine v. United States, 136 S. Ct.
2272, 2276 (2016) (considering misdemeanor domestic
violence offenses). As a result, any across-the-board
“assumption that a ‘felon’ is more dangerous than a misdemeanant” is “untenable.” Garner, 471 U.S. at 14. The
distinction between felonies and misdemeanors also is
“highly technical” and “difficult to apply in the field.”
Id. at 20. As this Court has recognized, it is unrealistic
to “expect every police officer to know the details of frequently complex penalty schemes.” Atwater, 532 U.S.
at 348. That is especially so when officers must act “on
the spur (and in the heat) of the moment.” Id. at 347.
For example, an officer who observes an offense is often
in “no position to know” facts that will determine
whether a crime is a misdemeanor or a felony, such as
the type of drugs transferred, “the precise value of
property stolen, or whether the crime was a first or second offense.” Garner, 471 U.S. at 20; see, e.g., Atwater,
19
532 U.S. at 348-349; Berkemer v. McCarty, 468 U.S. 420,
430-431 (1984); Magruder v. United States, 62 A.3d 720,
724 (D.C. 2013); see also Amicus Br. 39-40 (noting that
in some States, the felony-misdemeanor line may not
exist at all).
2. Although the Court’s exigent-circumstances
cases often eschew categorical rules, see Pet. Br. 10-11,
the Court has described its felony hot-pursuit precedents in categorical terms. See, e.g., Steagald, 451 U.S.
at 221 (citing Santana and Hayden for the proposition
that “warrantless entry of a home would be justified if
the police were in ‘hot pursuit’ of a fugitive”); Resp. Br.
5, 14. A categorical hot-pursuit rule, at least in the felony context, is consistent with the Court’s more general
practice of giving “great weight to the ‘essential interest in readily administrable rules’ ” when “determining
what is reasonable under the Fourth Amendment.” Virginia v. Moore, 553 U.S. 164, 175 (2008) (quoting Atwater, 532 U.S. at 347); see, e.g., United States v. Robinson, 414 U.S. 218, 234-235 (1973).
Nonetheless, in determining the reasonableness of
warrantless entry into a home during hot pursuit based
on probable cause to arrest for a misdemeanor, it may
be appropriate to consider the nonviolent or extremely
minor nature of the suspected offense. While the hotpursuit rule is not primarily concerned with, and serves
interests independent of, the gravity of the underlying
offense, law enforcement may have a diminished interest in identifying and prosecuting suspects who have
committed particularly minor, nonviolent crimes. In
addition, other circumstances—such as an officer’s
prior familiarity with (and thus ability to identify) the
suspect, or a lack of clarity about whether a reasonable
person in the suspect’s position would have known that
20
police were trying to stop him—may also diminish the
government’s interest in pursuit into a residence in a
particular misdemeanor case.
But even if the relatively minor nature of the suspected
crime means that exigent circumstances may not be present in particular cases, that does not preclude the Court
from setting forth at least a “general rule” that will presumptively apply. Mitchell, 139 S. Ct. at 2531 (plurality
opinion); see id. at 2539 (exigent-circumstances rule that
“almost always” applies); see also id. at 2541 (Thomas, J.,
concurring) (“That the exigent-circumstances exception
might ordinarily require an evaluation of the particular
facts of each case does not foreclose us from recognizing
that a certain, dispositive fact is always present in some
categories of cases.”) (citation and internal quotation
marks omitted). Even if no categorical rule applies, such
a general presumptive rule is appropriate for hot-pursuit
cases involving probable cause to arrest for a misdemeanor. Regardless of the seriousness of the offense, the
government’s interests will typically outweigh the fleeing
suspect’s diminished privacy interests, making a limited,
warrantless home entry reasonable under the Fourth
Amendment.
While a hot pursuit “need not be an extended hue and
cry ‘in and about [the] public streets,’ ” Santana, 427
U.S. at 43 (brackets in original), the Court has suggested that it requires “immediate or continuous pursuit” of a suspect, Welsh, 466 U.S. at 753, as well as the
suspect’s “flight” or “attempt to escape,” Johnson v.
United States, 333 U.S. 10, 16 n.7 (1948). Contrary to
petitioner’s suggestion (Pet. Br. 32-34), those facts bear
far more than “a loose relationship to the pertinent lawenforcement interests.” Id. at 34. A suspect’s decision
to flee, and an officer’s hot pursuit of him, are the very
21
circumstances that make the officer’s entry into the
home—where the suspect has elected to move the
encounter—reasonable. Such entry may be further justified when officers have an objectively reasonable basis
for concluding that they cannot otherwise identify the
suspect, that they would be unable to secure a warrant
(which would not have been necessary absent the suspect’s flight), or that they lack sufficient time to do so.
Missouri v. McNeely, 569 U.S. 141, 149 (2013); see id.
at 173 (Roberts, C.J., concurring in part and dissenting
in part). A suspect’s flight may also provide further
support for a warrantless entry when the manner of
flight itself has been dangerous to officers or the public.
Such conduct may suggest, for example, that the suspect is more likely to have entered someone else’s home
(rather than his own), heedless of the additional dangers that he invites by doing so.
Those circumstances are not exhaustive, and a general rule presumptively allowing for warrantless entry
will help to avoid the temptation for reviewing courts to
deem an officer’s conduct unreasonable simply because,
“judged with the benefit of hindsight,” the officer appears to have misjudged the situation in the heat of the
moment. City & Cnty. of San Francisco v. Sheehan, 575
U.S. 600, 612 (2015). “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some
mistakes on the part of government officials, giving
them ‘fair leeway for enforcing the law in the community’s protection.’ ” Heien v. North Carolina, 574 U.S.
54, 60-61 (2014). And the Fourth Amendment is likewise “not blind to the fact that police officers are often
forced to make split-second judgments,” Sheehan, 575
U.S. at 612 (citation and internal quotation marks omitted), often on incomplete or imperfect information.
22
C. Petitioner’s Objections To Applying The Hot-Pursuit
Rule To Misdemeanors Are Unsound
In opposing application of the hot-pursuit rule to
misdemeanors, petitioner contends (Br. 15, 26-31, 3744) that hot pursuit is not a standalone exigent circumstance; that the common law does not support applying
the doctrine in the context of misdemeanor offenses;
and that home entries threaten disproportionate Fourth
Amendment harms. See Resp. Br. 18-23. None of those
objections support his approach, which would effectively eviscerate the rule in the misdemeanor (and perhaps even the felony) context.
1. As an overarching matter, petitioner’s position
rests on the unsound premise that hot pursuit, even in
the felony context, is not a true exigent circumstance.
In his view, hot pursuit should justify a warrantless
home entry only when an additional exigency is
present—for example, when “taking the time to seek a
warrant would risk the destruction of evidence; would
allow the suspect to escape; or would endanger occupants of the home, members of the public, or the officers
themselves.” Pet. Br. 15; see Resp. Br. 24.
As discussed above, however, this Court’s precedents recognize that although additional exigencies—
such as the likely destruction of evidence or the need to
provide aid to occupants of the house—may often be
present in hot-pursuit cases, the hot-pursuit rule serves
important independent interests and is itself sufficient
to justify warrantless home entry. The Court did not
discuss any additional exigencies in Scher. 305 U.S. at
253-255. And in Santana, the Court first held that the
hot pursuit was “sufficient to justify the warrantless entry into Santana’s house,” and only then observed, without further elaboration, that “[o]nce Santana saw the
23
police, there was likewise a realistic expectation that
any delay” to secure a warrant “would result in destruction of evidence.” 427 U.S. at 43.
This Court, moreover, has repeatedly described
Santana as “identif[ying]” the “hot pursuit of a fleeing
suspect” as among the “several exigencies that may justify a warrantless” entry of a home. King, 563 U.S. at
460 (emphasis added); see, e.g., Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016); McNeely, 569 U.S. at
149; Brigham City, 547 U.S. at 403; Welsh, 466 U.S. at
750; Mincey v. Arizona, 437 U.S. 385, 394 (1978); see
also Stanton, 571 U.S. at 9; Vale v. Louisiana, 399 U.S.
30, 35 (1970) (describing “hot pursuit of a fleeing felon”
as a distinct exception from the need to “respond[] to an
emergency”); Johnson, 333 U.S. at 15 (similar). Those
decisions make clear that while “hot pursuit” may coexist with other exigencies like “the ‘emergency’ aid exception” or “the need ‘to prevent the imminent destruction of evidence,’ ” King, 563 U.S. at 460 (citations omitted), the hot-pursuit exception is separate from—and
may justify a warrantless entry into a home independent of—those other exigencies.
2. Petitioner errs in suggesting (Br. 29) that whatever the applicability of the rule in the felony context, it
should not apply to misdemeanors, on the theory that
“mere pursuit of a suspected misdemeanant was not
among the limited circumstances justifying a warrantless home entry” at common law. While “[t]he common
law may, within limits, be instructive in determining
what sorts of searches [and seizures] the Framers of the
Fourth Amendment regarded as reasonable,” the
Court’s decisions “have not ‘simply frozen into constitutional law those enforcement practices that existed at
the time of the Fourth Amendment’s passage.’ ” Steagald,
24
451 U.S. at 217 & n.10 (quoting Payton v. New York, 445
U.S. 573, 591 n.33 (1980)) (footnote omitted). That is
especially so where common law fails to provide “a conclusive answer” to the question presented. Moore, 553
U.S. at 171. And that is the case here.
For one thing, the (blurry) line between felonies and
misdemeanors is quite different today than it was when
the Fourth Amendment was adopted. While at common
law “ ‘the gulf between the felonies and the minor offences was broad and deep,’ ” today the distinction “is
minor and often arbitrary.” Garner, 471 U.S. at 14
(quoting 2 Frederick Pollock & Frederic William Maitland, The History of English Law 467 n.3 (2d ed. 1909));
see pp. 18-19, supra. Those changes make reliance on
any common-law dividing line between felony and misdemeanors inappropriate here.
Even putting that aside, the common law would not
support petitioner. This Court has on multiple occasions recognized the lack of uniformity among commonlaw authorities about warrantless arrests. See Payton,
445 U.S. at 592 (warrantless home arrests); Atwater,
532 U.S. at 329 (same for misdemeanor public arrests).
That is also true here. Multiple Founding-era sources
support the legality of warrantless entry into a home
based on hot pursuit of a misdemeanant. For example,
William Hawkins recognized authority to arrest in the
home persons who committed an affray in the presence
of an official and were immediately pursued, and persons who were lawfully arrested and then escaped.
2 William Hawkins & Thomas Leach, A Treatise of the
Pleas of the Crown 138-139 (6th ed. 1787). Richard
Burn likewise recognized authority to enter the home in
cases of escape. 1 Richard Burn, The Justice of the
Peace, and Parish Officer 102-103 (14th ed. 1780); see
25
Pet. Br. 29-30. Both fighting in public and escape were
misdemeanors at common law, 9 Earl of Halsbury et al.,
The Laws of England §§ 919, 1101, at 468, 508 (1909),
and they are misdemeanors in California today, Cal. Penal Code § 415(1) (West 2020) and Cal. Penal Code
§ 836.6 (West 2008).
At the same time, several commentators broadly recognized an officer’s authority to conduct a warrantless,
in-home arrest if a suspect committed a “breach of the
peace” in the officer’s presence and then fled to a home.
See, e.g., American Law Institute, Code of Criminal
Procedure § 28, at 254 (1930); Horace L. Wilgus, Arrest
Without a Warrant, 22 Mich. L. Rev. 798, 802-803
(1924). As the Court has observed, the term “ ‘breach of
the peace’ ” meant “very different things in different
common-law contexts.” Atwater, 532 U.S. at 327 & n.2.
“Even when used to describe common-law arrest authority,” it did not necessarily entail “violence or a
threat thereof.” Id. at 327 n.2; see United States v.
Brewster, 408 U.S. 501, 521 (1972); Williamson v.
United States, 207 U.S. 425, 444 (1908). The commonlaw authority to enter a home without a warrant in hot
pursuit of someone who breached the peace thus was
not limited to felonies.
Other authorities cited by petitioner (Br. 27-30) shed
little light on the extent to which misdemeanor hot pursuits were permitted. Sir Matthew Hale expressly limited his analysis to felonies and imminent felonies. 2
Matthew Hale, The History of the Pleas of the Crown
85, 90 (1736). Lord Edward Coke accepted that an officer could “break a house to apprehend the delinquent”
“upon Hue and Cry of one that is slain or wounded, so
as he is in danger of death, or robbed.” 4 Edward Coke,
Institutes of the Laws of England 177 (6th ed. 1681).
26
But some authorities suggest that hue and cry applied
more broadly, see Amicus Br. 22, and in any event the
common law “ ‘hue and cry’ ” could be invoked “simply
to apprehend a person suspected of a felony,” without
requiring the exigent circumstance of a hot pursuit.
Steagald, 451 U.S. at 229 n.2 (Rehnquist, J., dissenting).
It therefore does not demonstrate what rule applied
where a misdemeanor suspect fled to a residence.
Nor is petitioner correct (Br. 28) that some commentators’ limitations on the breaking of doors applied to
any “entering [of ] a home without permission.” An officer’s entry through an open door of a home did not
qualify as the breaking of doors. See 4 Coke 177-178;
Semayne’s Case, (1604) 77 Eng. Rep. 194, 197 (K.B.);
see also Steagald, 451 U.S. at 218 & n.11. And, as petitioner acknowledges, some commentators described
breaking doors as “violent,” suggesting that some nontrivial physical force was required. Pet. Br. 28 (citation
omitted). Thus, even where common-law commentators
would have limited the authority to “break doors” in
pursuit of some fleeing misdemeanants, they would not
necessarily have prohibited other types of entries (like
the one at issue here, see p. 32, infra).
For all of those reasons, this “simply is not a case in
which” the party challenging a law-enforcement practice “can point to ‘a clear answer [that] existed in 1791
and has been generally adhered to by the traditions of
our society ever since.’ ” Atwater, 532 U.S. at 345 (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 60
(1991) (Scalia, J., dissenting)) (brackets in original).
The Court therefore should analyze the permissibility
of the practice “under traditional standards of reasonableness,” Wyoming v. Houghton, 526 U.S. 295, 299-300
(1999)—which here demonstrate that warrantless home
27
entries in hot pursuit of a suspect with probable cause
of a misdemeanor will typically comport with the
Fourth Amendment. See pp. 8-21, supra.
3. Finally, petitioner’s policy concerns about potentially “abusive or unnecessary” law-enforcement practices do not support limiting the hot-pursuit rule in the
misdemeanor context to cases in which a separate exigency is also present. Pet. Br. 39; see Resp. Br. 22-23
& n.17. Petitioner’s concerns about the hot-pursuit rule
are not unique to the misdemeanor context, see Resp.
Br. 23, and several doctrines appropriately cabin officers’ authority when making a warrantless entry.
Petitioner suggests (Br. 38) that applying the hotpursuit rule in the misdemeanor context would allow
“even a mere Terry stop” to “escalate into a warrantless
entry,” because many States make willful flight from police a misdemeanor. His concerns about applying the
rule in that particular scenario do not justify his effort to
effectively dispense with it entirely. Suspects can readily avoid that result by complying with law-enforcement
officers’ lawful displays of authority. Law-enforcement
agencies may also avoid it, at public urging or on their
own initiative, by adopting hot-pursuit policies that do
not authorize officers to pursue suspects to the full extent permitted by the Fourth Amendment. And as discussed below, other Fourth Amendment doctrines will
limit the scope of any such pursuit.
Petitioner similarly errs in suggesting that declining
to adopt his constriction of the hot-pursuit rule would
“allow officers to enter a home without a warrant * * *
even if it turns out the citizen did not realize the officer
was trying to make a stop.” Pet. Br. 38-39; see id. at 18.
When “a reasonable person in [a suspect’s] position
would have known the officer intended to detain [him],”
28
as the lower courts found here, Pet. App. 5a, a suspect’s
assertion that—unbeknownst to the officer—he was
subjectively unaware of the attempted stop cannot render the officer’s continuation of that attempt unreasonable. Furthermore, while petitioner is correct that California makes “flight from or failure to cooperate with
police * * * a misdemeanor,” Pet. Br. 38, it does so only
if the suspect acts “willfully,” Cal. Penal Code § 148(a)(1)
(West. 2014). It therefore excludes the unknowingsuspect scenario that petitioner envisions. See Resp.
Br. 28 & n.22 (citing additional state laws criminalizing
fleeing from the police or resisting arrest, each of which
requires that the defendant act “knowingly” or “intentionally”).
Nor does the hot-pursuit rule permit officers to “lure
a known suspect out of his house” in the hope that he
decides to end a consensual encounter and retreat back
into his home. Pet. Br. 39, 41-42; cf. Resp. Br. 23-24.
Courts have held that the termination of a consensual
encounter generally will not justify a warrantless entry
under the hot-pursuit rule, because simply ending such
an encounter does not constitute flight. See Smith v.
Stoneburner, 716 F.3d 926, 931 (6th Cir. 2013) (“In consensual encounters, we think of individuals as ‘free to
leave,’ not ‘free to flee.’ ”).
Petitioner also suggests (Br. 42) that warrantless
home entries “risk property damage, trauma, and violent confrontations.” But recognizing that an officer is
permitted to enter a home in hot pursuit of a suspect
does not eliminate the separate constitutional restriction on the manner of entry, which must itself be
“reasonable.” Brigham City, 547 U.S. at 406-407; see,
e.g., Trent v. Wade, 776 F.3d 368, 382 (5th Cir. 2015)
(“Hot pursuit itself may give the officer the authority to
29
be inside a home without a warrant, but it does not have
any bearing on the constitutionality of the manner in
which he enters the home.”). While the facts that justify
hot pursuit of a fleeing suspect may demonstrate that it
would be futile for officers to “knock and announce”
their presence, see, e.g., Trent, 776 F.3d at 382 n.11, officers still must enter reasonably and act reasonably
while inside. As with any entry, with or without a warrant, the “[e]xcessive or unnecessary destruction of
property in the course of ” entry under the hot-pursuit
rule “may violate the Fourth Amendment.” United
States v. Ramirez, 523 U.S. 65, 71 (1998).
Similarly, safety concerns about warrantless entries,
see Pet. Br. 37, 42-43, are mitigated by the Fourth
Amendment’s prohibition against the unreasonable use
of excessive or deadly force. Graham v. Connor, 490
U.S. 386, 395-397 (1989); Garner, 471 U.S. at 9-11. And
to the extent that pursuit of a fleeing suspect into a
home presents safety concerns in certain cases, the
Fourth Amendment analysis should take into account
that the suspect himself decided to move the encounter
there. Cf. Scott, 550 U.S. at 384 (recognizing that in balancing Fourth Amendment interests, it is “appropriate
* * * to take into account” the suspect’s actions in “intentionally plac[ing] himself and the public in danger”
by “ignor[ing]” officers’ warning to stop and engaging
in a high-speed chase). So long as the officer’s actions,
viewed in light of the totality of the circumstances, are
reasonable, a suspect should not be able to create safety
concerns through his own conduct and then claim that
they give rise to a Fourth Amendment violation by the
pursuing officers.
Moreover, in light of dangers that may arise from police chases, many jurisdictions have established policies
30
regarding when pursuit is appropriate and the manner
in which it may be conducted. See, e.g., Police Vehicle
Pursuits 1 (“As of January 2013, all state police and
highway patrol agencies and nearly all local police departments (97%) and sheriffs’ offices (96%) had a written vehicle pursuit policy.”); see also Illinois et al. Amici
Br. 12-14 (describing pursuit policies). Such policies
serve valuable interests, including protecting officers
and the public, fostering positive community-police relations, and in some cases, remedying unreasonable use
of force or other constitutional violations. See, e.g., Civil
Rights Div., U.S. Dep’t of Justice, Investigation of the
Baltimore City Police Department 76 (Aug. 10, 2016),
https://www.justice.gov/crt/file/883296/download; Civil
Rights Div. & U.S. Att’y’s Office of N. Dist. of Ill., U.S.
Dep’t of Justice, Investigation of the Chicago Police Department 26-27, 30-31 (Jan. 13, 2017), https://www.justice.
gov/opa/file/925846/download. No need exists to “authorize[] courts to make judgments on matters that are
the province of those who are responsible for federal
and state law enforcement agencies,” King, 563 U.S. at
467-468, through limitations on the hot-pursuit rule.
II. THE WARRANTLESS GARAGE ENTRY IN THIS CASE
WAS REASONABLE UNDER THE CIRCUMSTANCES
AND CONSTITUTIONALLY PERMISSIBLE
Even if the hot-pursuit rule is not categorical in the
misdemeanor context, the decision of the California
Court of Appeal should be affirmed. Considering the
circumstances of this case, Officer Weikert’s warrantless entry into the garage was reasonable, and thus constitutional.
It is undisputed that Officer Weikert observed petitioner violate multiple provisions of California’s Vehicle
31
Code, “which justified the officer’s attempt to stop [petitioner’s] vehicle.” Pet. App. 16a; see Pet. Br. 2-3. The
state courts further determined that “a reasonable person in [petitioner’s] position would have known the officer intended for him to pull over.” Pet. App. 17a. No
other cars were on the street; Officer Weikert “pulled
up directly behind” petitioner’s vehicle and activated
his emergency lights; and those lights “provided considerable illumination, lighting up the area behind, around,
and in front of [petitioner’s] car.” Id. at 16a.
Petitioner has claimed that he did not realize that Officer Weikert was ordering him to stop. See Pet. Br. 3;
Pet. App. 18a. But even if that is true, it reflects an unreasonable lack of awareness and, in any event, is not
something that Officer Weikert could possibly have
known at the time. Instead, Officer Weikert saw petitioner failing to comply with his lawful show of authority. Rather than stopping as he had been lawfully ordered to do, petitioner continued to drive and then pulled
into a garage. Pet. App. 17a. Petitioner’s “fail[ure] to
immediately pull over * * * gave the officer probable
cause to arrest him” for two separate willful-resistance
misdemeanors. Ibid. (citing Cal. Veh. Code § 2800(a)
(West 2015) and Cal. Penal Code § 148(a)(1) (West
2014)). And petitioner continued to attempt to evade
Officer Weikert when he reached the garage, closing
the garage door despite the officer’s display of authority. See id. at 3a.
In short, from Officer Weikert’s perspective, petitioner had chosen to move the location of a lawful stop
from the street to the garage—and then attempted to
shut the garage door behind him. Nothing in the record
suggests that Officer Weikert knew who the driver of
the car was; what he (or she) even looked like; whether
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the driver was the registered owner of the car; precisely
whose garage it was; or whether the presence of other
people in the residence would complicate any effort to
identify and arrest the driver. In addition, Officer
Weikert’s manner of entry—passing his foot beneath
the garage door to stop it from closing—was reasonable
and minimally intrusive. In such circumstances, petitioner’s “act of retreating into” the garage should not
be permitted to “thwart an otherwise proper arrest.”
Santana, 427 U.S. at 42.
CONCLUSION
The judgment of the California Court of Appeal
should be affirmed.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
DAVID P. BURNS
Acting Assistant Attorney
General
ERIC J. FEIGIN
Deputy Solicitor General
ERICA L. ROSS
Assistant to the Solicitor
General
ANDREW C. NOLL
Attorney
JANUARY 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.