Pursuit, Arrests, and Homes

This term the Supreme Court seems to be interested in the law of arrests. Last week, the Court held oral argument in the case of Torres v. Madrid on the subject of what is a “seizure.” (My FedSoc podcast is here.) The common law rules on what is an “arrest” figured prominently in the argument, although there is some question of whether an arrest is necessarily a seizure.

On Monday, in an order that attracted little notice among more politically hot potatoes, the Court took up the case of Lange v. California, No. 20-18. Lange raises the question of whether a person evading arrest for a misdemeanor can thwart the pursuit, at least for the time being, by running into his home.

Highway Patrol Officer Weikert at first merely wanted to stop Lange for playing his music in the car much too loudly. (Good to know that there is at least one officer in the State of California who actually enforces that law.) However, Lange refused to stop in response to the officer’s lights, thus escalating from an infraction to a misdemeanor.

Lange pulled into his driveway and parked in the garage, opening and starting to close the door with a remote opener. Officer Weikert stuck his foot into the door, causing the door to automatically reverse. He entered the garage to speak to Lange. Sure enough, he smelled alcohol on Lange’s breath. Lange’s suppression motion was denied. He pleaded no content to the DUI but was able to appeal the denial of the suppression motion.

Forty years ago, the Supreme Court held in Payton v. New York that entry into a home to seize a person without a warrant is presumptively unreasonable unless an exception applies. Four years earlier, the Court had held in United States v. Santana that “a suspect may not defeat an arrest which has been set in motion in a public place … by the expedient of escaping to a private place.” Does Santana justify an exception to the Payton rule in this case?

In Santana the offense the police sought to arrest the defendant for was a felony, selling heroin, but the Court did not mention that fact. The Court did mention that under the circumstances it was likely Santana would have destroyed evidence if not immediately arrested.

Does felony versus misdemeanor make a constitutional difference? Is a case-specific showing of exigent circumstances, such as likely destruction of evidence, required?

The Court has been increasingly interested in the law at the time of the adoption of the Fourth Amendment in recent years. Petitioner makes this interesting statement in his certiorari petition (emphasis added):

In Payton, this Court discerned the common law of arrest “as it appeared to the Framers” by surveying the leading contemporary commentators. 445 U.S. at 596; see id. at 593-96. To the extent those commentators addressed a hot-pursuit exception to the warrant requirement, they uniformly instructed that officers pursuing a suspect could “break doors”— that is, enter a home without consent—only when the suspected offense was a serious one that created a risk of violence or other genuine exigency.

Notice the lack of any citation for the proposition the common law concept of “break doors” includes every entry into a home without consent? There isn’t any in the remainder of this section of the petition, either.

Based on my preliminary research of the matter, I do not believe that the common law “break doors” includes all entries without consent. It seems to mean just what you would think it means, breaking in after the occupant has locked the door. Arrest after entering without breaking does not appear to have been legally different from arrest in a public place at common law.

If the Court really does view the common law of arrest as controlling in this case, will it change the focus from entering to breaking?

Another issue that has come up from time to time in Fourth Amendment cases is the creation of various “good faith” exceptions to the exclusionary rule. In this case, state appellate case law on point said the officer’s actions were legal. If that precedent is overruled after the fact, is that really any different from a state statute on point that is declared unconstitutional later? The Supreme Court said in Illinois v. Krull that suppression of evidence is not warranted in the latter situation. Is it warranted here?

And if the Court really believes that original understanding is controlling for interpretation of the Bill of Rights, what about the exclusionary rule itself. There is no credible originalist case for the rule. See CJLF’s brief in Utah v. Strieff. Can and will the Court continue with cafeteria originalism, looking to the original understanding for the substance of the Fourth Amendment while continuing to insist that a remedy fabricated a century later and unknown in the founding era is required by the same amendment?

Stay tuned.