Hot Pursuit and Entry Into Homes
As noted in Wednesday’s summary post, the U.S. Supreme Court held that day that the fact that a police officer is in “hot pursuit” of a person believed to have committed a misdemeanor (as opposed to a felony) is not by itself sufficient justification to enter a home with neither consent nor a warrant. The case is Lange v. California, No. 20-18.
The opinion of the Court is written by Justice Kagan, and it is joined in full without opinion by four others: Justices Breyer, Sotomayor, Gorsuch, and Barrett. So there is no Marks “narrowest grounds” puzzling here. (See this post for the explanation.) The main opinion is precedent and the concurrences are not. Even so, the concurring opinions are worth reading for hints of where the Court may go in the future.
First there is the general rule and the general exception to that rule. Generally, a police officer cannot enter a home without permission unless he has a warrant. There is a general exception to that rule for “exigent circumstances.” Those circumstances include protecting a person from physical harm, rendering aid to a person who has already been harmed, preventing the destruction of evidence, and preventing the escape of the suspect. That is a long list, and all the opinions in Lange agree that most cases where a police officer would want to enter a home to arrest a fleeing misdemeanant will qualify for at least one. The defendant’s own attorney conceded it would likely include nine out of ten cases.
On most, but not all, Fourth Amendment issues, the Supreme Court has preferred to go with case-by-case assessment of all the facts of the case rather than bright-line rules with a single rule for one category of situations. That is generally true for exigent-circumstance exceptions for warrant requirements. In drunk driving cases, for example, the Court declined to make a blanket exception allowing warrantless blood tests of anyone arrested on probable cause to suspect drunk driving, even though blood alcohol necessarily dissipates with time for everyone.
One case that has traditionally been thought to establish a bright-line exception is the 1976 decision in United States v. Santana: “We thus conclude that a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper …, by the expedient of escaping to a private place.” The Santana Court also noted that there were exigent circumstances in the case, but its statement of its holding did not make that a condition.
Much more recently, the 2013 summary opinion in Stanton v. Sims held that the law was unsettled as to misdemeanors, even while confirming that Santana had made a bright-line exception for felonies. Given Stanton, the majority opinion has some justification for treating Santana‘s rule as not necessarily applicable to misdemeanors, yet it tries to hold the door open for a future case to say that Santana does not establish a bright-line exception for felonies either. I would be very surprised if a majority of the present Court buys into that, but it is a question for another day.
Getting into policy and practicality questions, Chief Justice Roberts’ opinion (which is really a dissent on the main point, even though concurring in the judgment), has the better of the argument. True, as the majority says, misdemeanors are generally less serious offenses than felonies, but that is not always true, and they are not always more serious in the way that is relevant to the question of whether prompt action is needed. Assault causing significant but not “great” bodily injury may be a misdemeanor, while a host of regulatory offenses are felonies.
The officer may not know whether the offense is a misdemeanor or a felony at the time. The extent of the victim’s injury in an assault case may not be apparent. In California, where this case comes from, the choice between a misdemeanor and a felony is often a matter of sentencing discretion. One defendant might be convicted of a felony for exactly the same criminal act that draws a misdemeanor conviction for another defendant.
So take this hypothetical. In California, Defendant Dave assaults Victim Vera. Officer Oscar witnesses the assault and says “Halt! You’re under arrest.” Dave takes off running. Vera is bleeding, but the precise extent of her injury is unknown. Dave runs into his house, but Oscar and his partner could observe both sides so he could not escape while they get a warrant. Even so, Oscar pursues Dave through the open door and arrests him inside the house.
Did Oscar violate Dave’s constitutional rights? If a court later decides that Vera’s injuries are “great” or that Dave used force “likely to cause great bodily injury,” whether it did or not, then Dave is guilty of a “wobbler.” That will be a felony only if the judge decides to sentence Dave to a felony sentence rather than a misdemeanor sentence. Did Oscar have probable cause to believe that Dave had committed a felony? Maybe. Who can say for sure?
We have a rule of law that creates uncertainty for the officers while actually preventing relatively few intrusions. That makes little practical sense. What about history and original understanding?
The majority has the better argument that the common law generally (with some exceptions) did not allow breaking into a home to arrest someone for a misdemeanor without a warrant. Yet the dissent-in-reality is also correct that there are big differences between the legal landscape then and now. The distinction between felonies and misdemeanors is nowhere near as crisp now. The common law exceptions to the felonies-only rule included public fighting and disorderly drinking. What did the common law say about drunk driving, the offense in this case? Nothing, obviously.
Even more important, the drastic sanction of excluding evidence of crime for a search-and-seizure violation was unknown at common law (and, for that matter, for the first century of the United States). The majority opinion does not even mention the exclusionary rule and does not place any weight on the fact that exclusion of evidence is what this case is really about. The Chief Justice, in contrast, believes that the difference in remedies does matters:
Even if the common law practice surrounding hot pursuit were unassailably clear, its treatment of the topic before us did not recognize the remedy Lange seeks: exclusion of evidence in a criminal case. Collins, 584 U. S., at ___ (slip op., at 2) (Thomas, J., concurring). It is often difficult to conceive of how common law rights were influenced by the absence of modern remedies. And in this case we have no guidance from history as to how our doctrines surrounding the exclusionary rule, such as inevitable discovery, would map onto situations in which a person attempts to thwart a public arrest by retreating to a private place. See Nix v. Williams, 467 U. S. 431, 443–444 (1984).
The answer to the historical question may depend on how it is framed. At common law, did an officer have the right to break into a house to arrest a person for a misdemeanor? No, generally. At common law did a defendant arrested in his house for a misdemeanor without a warrant have the right to exclude from the trial any evidence found in the process? Again, no.
Lange gets exclusion only because the Court is willing to engage in cafeteria originalism, picking and choosing where it will interpret the Constitution in accordance with the original understand and where it will not. A rule of law that is impractical in the modern world because it fails to inform officers where the limits of action lie is justified by the practices of centuries ago, but the remedy for a police misstep is one that was unknown to that same common law.
Justice Thomas, joined in this part of his opinion by Justice Kavanaugh, believes that Lange should not get exclusion under existing law. He notes, correctly, that the Court has said in a number of cases that exclusion should not apply when its benefit in deterring Fourth Amendment violations is outweighed by the costs. However, the Court has said that in the process of creating discrete exceptions to the exclusionary rule. It has not created a general requirement of weighing costs and benefits in each instance.
Though I do not agree with Justice Thomas that the vision of the exclusionary rule he lays out is presently the law, I do think something along those lines should be the law. It is high time to dispense with “good faith exceptions” to a general rule of exclusion and make “bad faith” or something like it an element of the defendant’s case for exclusion.
I propose that when a defendant in a criminal case moves to suppress evidence, he must not only show that the search or seizure was a violation of the Fourth Amendment but also show that the violation was apparent, objectively speaking, in light of the facts known to the officer at the time and precedent clearly established at the time.
Would that leave inadequate remedies for enforcement of the Fourth Amendment? The remedies are already inadequate. The exclusionary rule is a remedy exclusively for the guilty. If the police do not find any evidence, and the person searched is never charged with a crime, the exclusion remedy is worthless.
Should we abolish qualified immunity, so that police officers are personally liable for judgment calls in the course of their duty that a judge later decides were on the wrong side of an invisible line? Absolutely not. Police officers are already leaving in droves as a predicable result of the war being waged on them.
Chief Justice Burger had it right half a century ago in his dissent in the Bivens case. We need a quick civil remedy for search-and-seizure violations with the employing government entity paying the bill. That requires legislation.
Is there any chance that a majority of the Supreme Court will vote to take a big chunk out of the exclusionary rule or even ditch it altogether in the near future? Could be. Along with Justice Thomas’s opinion in the present case, note also Chief Justice Roberts’ citation to his opinion in the Collins v. Virginia case three years ago. That opinion was also deeply skeptical of the exclusionary rule. On the page the Chief cited in the block quote above, it says:
While those who ratified the Fourth and Fourteenth Amendments would agree that a constitutional violation occurred here, they would be deeply confused about the posture of this case and the remedy that Collins is seeking. Historically, the only remedies for unconstitutional searches and seizures were “tort suits” and “self-help.” [Citation.] The exclusionary rule—the practice of deterring illegal searches and seizures by suppressing evidence at criminal trials—did not exist. No such rule existed in “Roman Law, Napoleonic Law or even the Common Law of England.”
Four Justices joined two opinions expressing skepticism of the exclusionary rule. Just one more is needed. It’s possible.