A few weeks ago the United States Supreme Court decided Lange v. California, 594 U.S. ___, ___ S. Ct. ___ (June 23, 2021), holding that the flight of a person suspected of a misdemeanor offense does not categorically justify an officer’s warrantless entry into a home. Today’s post reviews how Lange fits into the landscape of Fourth Amendment cases establishing when an officer may forcibly enter a suspect’s home without a warrant.
Let’s start with what we knew before Lange was decided.
Warrantless felony arrests in the home are not permissible absent exigent circumstances. The United States Supreme Court held in Payton v. New York, 445 U.S. 573 (1980), that warrantless felony arrests in the home are prohibited by the Fourth Amendment absent exigent circumstances. The court struck down as unconstitutional New York statutes that authorized law enforcement officers to enter a private residence without a warrant and with force to make a routine felony arrest.
Hot pursuit of a fleeing felon is an exigency that permits warrantless entry into a home. In United States v. Santana, 427 U.S. 38 (1976), the Supreme Court determined that law enforcement officers who had probable cause to arrest the defendant for selling heroin were authorized to enter the vestibule of the defendant’s home to arrest her after she retreated from the area in front of her door as officers approached. The officer’s warrantless entry was authorized by the categorical exception for hot pursuit. Even though there was not an extended “hue and cry ‘in and about the public streets,’” the arrest began in a place open to public view — outside the defendant’s front door — and the defendant could not defeat it by escaping into her home.
Warrantless arrests in the home for a civil traffic offense are not permissible. In Welsh v. Wisconsin, 466 U.S. 740 (1984), officers who suspected Welsh of driving while intoxicated and walking home from the scene entered Welsh’s home at 9 p.m. without a warrant, proceeded to his bedroom where he was lying naked in bed and arrested him. Welsch argued that the entry into his home was unlawful, and the Supreme Court agreed. The Court reasoned that the presumption of unreasonableness that attaches to all warrantless home entries is particularly difficult to rebut when the government’s interest is only to arrest for a minor offense. At the time of the officer’s entry into Welsh’s home, Wisconsin classified a first offense of driving while intoxicated as a noncriminal offense for which no imprisonment was possible. The Court explained that given this classification, the warrantless home arrest of Welsh could not be upheld simply because evidence of his blood-alcohol level might have dissipated while officers obtained a warrant. The Court rejected the State’s argument that the entry was permitted under the exception for hot pursuit, noting that Welsh was not pursued from the scene of the crime.
What was unsettled. Before Lange, courts were divided on whether the hot pursuit that permitted the warrantless home entry in Santana categorically applied to the pursuit of a suspect suspected of a misdemeanor.
The North Carolina Court of Appeals in State v. Adams, 250 N.C. App. 664 (2016), held that it did and that law enforcement officers acted lawfully when, lacking a warrant, they chased a man suspected of driving while license revoked into his home where they arrested him. The Adams Court determined that because the officers were engaged in hot pursuit, they did not need to establish additional exigent circumstances such as immediate danger or destruction of evidence to justify forcibly entering the suspect’s home.
Lange v. California. The Supreme Court reached a contrary conclusion in Lange (discussed here and summarized here), holding that the flight of a person suspected of a misdemeanor offense does not categorically justify an officer’s warrantless entry into a home. Rather than relying on a categorical rule, an officer must consider all the circumstances in a case involving the pursuit of a suspected misdemeanant to determine whether there is an exigency that would excuse the warrant requirement. When the totality of the circumstances shows an emergency, such as imminent harm to others, a threat to the officer, destruction of evidence, or escape from the home, a warrantless home entry is permissible. The Court opined that this threshold will be established in many, perhaps even most, cases. Nevertheless, the Court held that a case-by-case analysis must be conducted as the rule is not categorical.
A workable rule? The Chief Justice’s concurrence criticized the Court’s rule as “famously difficult to apply,” posing the following hypothetical:
Suppose a police officer on patrol responds to a report of a man assaulting a teenager. Arriving at the scene, the officer sees the teenager vainly trying to ward off the assailant. The officer attempts to place the assailant under arrest, but he takes off on foot. He leads the officer on a chase over several blocks as the officer yells for him to stop. With the officer closing in, the suspect leaps over a fence and then stands on a home’s front yard. He claims it’s his home and tells the officer to stay away. What is the officer to do?
Roberts, C.J., concurrence, slip op. at 14.
The Chief Justice faulted the Court for requiring that the officer: (1) stop and consider whether the suspect—if apprehended—would be charged with a misdemeanor or a felony, and (2) tally up other exigencies that might be present or arise before (3) deciding whether he can complete the arrest or must instead seek a warrant.
A significant holding? Justice Kavanaugh wrote in a separate concurrence that there was “almost no daylight in practice” between the Court’s opinion and Chief Justice Roberts’ concurrence because cases of fleeing misdemeanants will almost always involve a recognized exigent circumstance, such as a risk of escape, destruction of evidence, or harm to others. Kavanaugh, J., concurrence, slip op. at 1. He noted the acknowledgement of Lange’s counsel that the approach adopted by the court will still allow warrantless entry “‘nine times out of ten or more'” in cases involving pursuit of a fleeing misdemeanant. Kavanaugh, J., concurrence, slip op. at 2.
Still, the Court’s holding strikes me as significant, both in terms of protecting individual privacy interests and as a practical limitation on warrantless home entries. As the Court noted, misdemeanors vary widely and may be quite minor, encompassing conduct such as littering and minor traffic violations. And those suspected of minor offense may flee for relatively innocuous reasons and in non-threatening ways. Slip op. at 13 (citing case law examples of a man with a mental disability who retreated into his home when officers asked him about fidgeting with a mailbox and a teenager driving without taillights who did not stop at the officer’s signal but drove two blocks to his parents’ house, ran inside, and hid in the bathroom). Lange protects the privacy interests of the disabled person and scared teenager. And I suspect the holding may limit officer’s authority in more than the outlier case. Indeed, the reported facts in State v. Adams, 250 N.C. App. 664 (2016), do not appear to establish the sort of exigency Lange requires to justify a warrantless entry.