I previously wrote about the Supreme Court’s unanimous refusal in Caniglia v. Strom, (5/17/21), to add a “community caretaking” exception to the requirement that police obtain a warrant before entering a person’s home. The Court united again on June 23, 2021, in Lange v. California, to deny the government’s request to adopt a categorical exception for warrantless entry into a home to arrest a “fleeing” misdemeanant.
The facts
Arthur Lange drove by an officer while playing loud music and honking his horn. The officer followed Lange and activated his lights as Lange approached his driveway and drove into his garage. The officer walked to the garage, stopped the door closing with his foot and contacted Lange inside. Lange said he hadn’t seen the officer’s lights. The officer observed signs of intoxication. Lange was arrested for DUI and blew a .245. He was charged with a misdemeanor DUI and noise infraction.
Lange moved to suppress the evidence of the DUI on the grounds the officer’s warrantless entry violated the Fourth Amendment. The prosecution successfully argued that the entry was lawful because it was based on probable cause Lange had committed the misdemeanor of willfully failing to comply with a lawful direction of a peace officer.
The issue
The Supreme Court has established that “pursuit of a fleeing felon” meets the “exigent circumstances” exception to the warrant requirement. The Court accepted this case because it had not resolved a split amongst state and lower federal courts as to whether a fleeing misdemeanant categorically created exigent circumstances.
The Court’s decision
Justice Kagan wrote the majority opinion, which was joined by five of the Justices. The majority noted that while courts generally decide “exigent circumstances” on a case-by-case basis, there were some already recognized emergencies justifying warrantless entry into a home. They include:
- To render emergency assistance to an injured occupant;
- To protect an occupant from imminent injury;
- To ensure the officer’s safety;
- To prevent the imminent destruction of evidence;
- To prevent a suspect’s escape.
In deciding not to add a categorical exception for all “fleeing” misdemeanants, the Court concluded such a broad exception ran contrary to the Founders’ intentions and long-standing precedent:
’Freedom’ in one’s own ‘dwelling is the archetype of the privacy protection secured by the Fourth Amendment’; conversely, ‘physical entry of the home is the chief evil against which [it] is directed.’”
The Court added that any warrant exception permitting entry to the home must be “jealously and carefully drawn.”
Two key factors informed the majority’s decision not to adopt a blanket warrant exception for misdemeanors.
- They vary widely but can be “minor,” tend to be less violent and dangerous than felonies, and include offenses difficult to consider alarming, e.g., littering on a public beach.
- When a minor offense alone is involved, officers do not usually face the kind of emergency that can justify a warrantless home entry.
Per the majority, a misdemeanant’s “flight” from the police might change the calculus but not enough to create a categorical exception by itself that replaces a case-by-case analysis. When responding to a misdemeanor, officers will have to present a “totality of circumstances” that create an emergency, which might include:
- Flight;
- The seriousness of the misdemeanor;
- Imminent harm to others;
- A threat to the officer;
- Risk of destruction of evidence;
- Escape from the home.
While the vote to remand the case for a factual determination of whether exigent circumstances had existed was unanimous, there was contention in a concurrence written by Chief Justice Roberts – so much so that it reads like a dissent. Roberts wrote that “flight” from the police, even if the offense is a misdemeanor, should constitute a categorical exigent circumstance justifying warrantless entry. He contended the majority holding left officers with an indeterminate rule that would be difficult to apply.
What’s a cop to do?
In a brief concurrence, Justice Kavanaugh found little practical difference in the majority’s and Roberts’ opinions, stating,
[T]he difference between The Chief Justice’s approach and the Court’s approach will be academic in most cases. That is because cases of fleeing misdemeanants will almost always also involve a recognized exigent circumstance—such as a risk of escape, destruction of evidence, or harm to others—that will still justify warrantless entry into a home.”
I agree. Moreover, Justice Roberts never explained how requiring officers to have a “totality of circumstances” creating an exigency when the crime is a misdemeanor is any more complicated for officers than requiring they meet that same standard when the suspect isn’t fleeing.
Lange may yet up end with his conviction affirmed if the lower court finds the facts of his case presented exigent circumstances.
The takeaway for officers is to articulate circumstances that establish an exigency necessitating warrantless entry into a home when pursuing a misdemeanor suspect, beyond just the suspect’s “flight.” In Lange’s case, it wasn’t even clear he saw the officer’s lights.
I recommend you articulate a “totality of the circumstances” that create an exigency justifying warrantless entry into a home even if the suspect is a felon. If police rely on the “fleeing felon” exception to enter homes without a warrant when the felony presents no immediate danger, or the destruction of evidence or an escape, for example, many white-collar crimes, we could end up losing that exception. We got the “exclusionary rule” in 1961 (Mapp v. Ohio) because the Supreme Court decided the only way to deter cops from violating people’s constitutional rights to obtain evidence was to exclude such evidence from use in a prosecution. Let’s not give the Court a reason to take away the fleeing felon exception by abusing it.
Thank you for your service and protection.
