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How to measure the hotness of an officer’s pursuit

State v. Jeffrey L. Ionescu, 2019 WI App 68; case activity (including briefs)

A homeowner told police that he found a burglar in his car and saw him run west across his yard. About 10 minutes later, officer and a trained tracking dog headed in that direction for about 30 minutes. The officer saw footprints, and the dog detected scent, off and on along the way. Eventually they reached the yard of burglar’s mother and entered it without a warrant. She let them enter her home where they found Ionescu. Was this pursuit cold, warm or hot?

Under the 4th amendment warrantless searches inside a home or its curtilage are presumptively unreasonable. Florida v. Jardines, 569 U.S. 1 (2013). However, law enforcement may make a warrantless entry onto private property to engage in a “hot pursuit” of a fleeing subject. A pursuit is “hot” if it is an immediate or continuous pursuit of a suspect from the scene of a crime. State v. Weber, 2016 WI 96, 372 Wis. 2d 202, 887 N.W.2d 554(citing Brigham City v. Stuart, 547 U.S. 398 (2006) and State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29)).

To Ionescu, the pursuit here was at best “warm.” It took officers 5 to 10 minutes to arrive at the scene of the the burglary. Then they tracked him 25 to 30 minutes covering about 2,000 feet at a rate of .75 miles per hour across 12 lawns.

That was hot enough for the court of appeals. The pursuit occurred at night when it was hard to see, and the officer and his dog followed the footprints and scent as fast as “efficiency and effectiveness would allow.” Adopting the following test from one of its recent unpublished opinions, the court of appeals held that hotness is relative:

Whether a pursuit of a criminal suspect is a “hot” pursuit depends on the particular circumstances of each case. If a suspect is speeding away in a vehicle, hot pursuit will no doubt involve an officer following the suspect in a vehicle, quite possibly, but not necessarily, at a high rate of speed. If a suspect is running through back yards and alleys attempting to escape from an officer, the officer will likely need to engage in a hot-pursuit foot race requiring speeds near that of a sprint. If the pursuit goes longer, that sprint may turn to a more paced foot race, yet still be a hot pursuit. If an officer is pursuing a suspect and the suspect tries to close a door, garage door or otherwise, to prevent apprehension, hot pursuit will necessarily include preventing the door from being closed. Opinion, ¶14 (quoting State v. Palmersheim, 2018AP746-CR, ¶28,  (unpublished)).

Again quoting Palmersheim the court of appeals  held that the manner in which an officer engages in hot pursuit may be appropriately measured to the manner the suspect uses to evade the officer.  Opinion, ¶14.

So if the suspect moves slowly from the scene of a crime a slow pursuit can still be “hot” enough to dispense with the warrant requirement?

In addition to Palmersheim, the court of appeals cited an old 6th Circuit case and an unpublished Eastern District of Kentucky case to show that 30-minute pursuits of suspects over short distances are still “hot.”  Opinion, ¶15 n. 7. These authorities hardly inspire confidence, but where could the court of appeals turn?. Weber was a splintered decision. Four justices agreed that no 4th Amendment violation occurred. Only three justices found a “hot” pursuit justifying an warrantless entry onto property. This published decision sure hasn’t clarified “hot pursuit” law, so we hope to see a petition for review in this case.



{ 1 comment… add one }
  • kemba May 29, 2021, 8:50 am

    cops in hot pursuit of a suspected burglary spent 3 minutes dismantling the chain link fence, instead of hopping the chain link fence. they claim officer safety was the reason they dismantled the fence instead of hopping the fence. IMO, when they dismantled the fence, they turned a hot pursuit into a warm pursuit and had no business entering the property without a warrant.

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