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SCOTUS will review whether hot pursuit for a minor offense always justifies warrantless entry to home

Lange v. California, USSC No. 20-18, certiorari granted 10/19/20; vacated and remanded, 6/23/21

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?

Lower court decision: People v. Lange, No. A157169 (Cal. Ct. App. Oct. 30, 2019) (unpublished)


Scotusblog page (including links to filings and commentary)

The Fourth Amendment, of course, generally requires police officers to get a warrant before entering a home. The Supreme Court has recognized an exception to that rule for emergencies, such as when the police are in “hot pursuit” of a suspect. But the Court has decided only a handful of hot-pursuit cases, which provide only “equivocal” guidance. Stanton v. Sims, 571 U.S. 3, 10 (2013) (per curiam). On the one hand, the Court has twice upheld warrantless entries by officers pursuing felons: an armed robber, Warden v. Hayden, 387 U.S. 294, 298- 99 (1967), and a drug dealer with evidence at risk of destruction, United States v. Santana, 427 U.S. 38, 39-40, 42-43 (1976). On the other hand, in a case from Wisconsin involving a “nonjailable” OWI 1st offense, the Court said that the “application of the exigent circumstances exception in the context of a home entry should rarely be sanctioned” in a case involving such a “minor offense.” Welsh v. Wisconsin, 466 U.S. 740, 742, 753 (1984).

So what about hot pursuit of a person suspected of committing a misdemeanor, which the cert petition asserts are by far the most common basis for arrest? The Court hasn’t addressed this situation, with the result being a split among the lower courts on the right answer. One camp has adopted a categorical rule, holding that pursuit of a misdemeanor suspect always qualifies as an exigent circumstance. Others reject that categorical rule and instead ask the same fact-specific question that governs in other exigent-circumstances cases: whether officers faced a compelling need for official action and had no time to secure a warrant.

Which camp does Wisconsin fall into? Well, the cert petition says five state courts of last resort (those in Massachusetts, Ohio, Illinois, North Dakota, and New Hampshire) fall into the first camp, but then notes (p. 11 n.3) that:

Wisconsin could be considered a sixth state on the categorical side of the split, as it appears to have adopted the categorical rule in all but name. In State v. Weber, 887 N.W.2d 554 (Wis. 2016), the lead opinion “decline[d] to adopt the per se rule” for misdemeanor pursuit. Id. at 569. But it also upheld a warrantless entry simply because the misdemeanor at issue was “jailable,” and it expressly declined to require any other indicia of exigency. Id. at 565; see id. at 571-72 (Kelly, J., concurring) (endorsing the same rule). As two dissenters noted, the lead opinion effectively adopted “a per se rule that hot pursuit of a fleeing suspect is always an exigent circumstance.” Id. at 583.

If anything, the cert petition is too generous to say Wisconsin “could” rather than “should” be in the categorical camp. Cf. State v. Ferguson, 2009 WI 50, ¶¶20-30, 317 Wis. 2d 586, 767 N.W.2d 187, overruling State v. Mikkelson, 2002 WI App 152, 256 Wis.2d 132, 647 N.W.2d 421 (interpreting Welsh and Santana to impose a bright-line rule that police are justified in making a warrantless entry into a home only where the legislature had labeled the underlying offense as a felony). Whatever camp we fall in, though, the Supreme Court will now answer this important question and set us all straight.

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