SEARCH & SEIZURE COMMENTARY

BY TODD S. PUGH AND JONATHAN M. BRAYMAN

Lange v. California and the Limits of ‘Hot Pursuit’ and ‘Exigent Circumstances’ When Police Confront the Sanctity of the Home

The Fourth Amendment typically requires that law enforcement officers procure a warrant before entering a home without permission.1 An agent or officer can, however, make a warrantless entry into the home when “the exigencies of the situation” create a compelling law enforcement need to do so.2 The question presented in Lange v. California was whether “the pursuit of a fleeing misdemeanor suspect always — or more legally put, categorically — qualifies as an exigent circumstance” allowing for warrantless entry into the home.3

In Lange, a police officer followed motorist Arthur Gregory Lange after observing Lange drive by while playing loud music and honking his horn. After the officer activated his overhead lights, Lange drove a short distance home and pulled into his home’s attached garage. The officer followed Lange into the garage, questioned him, and ran him through field sobriety tests. A later blood test revealed that Lange’s blood-alcohol content was three times the legal limit.

In a unanimous decision by the U.S. Supreme Court, with Justice Elena Kagan authoring the majority opinion, the Lange Court held that pursuit of a fleeing suspected misdemeanant into the home does not categorically provide law enforcement with the “exigent circumstances” needed to justify a warrantless entry.4 The Court recognized that, practically and empirically speaking, “[a] great many misdemeanor pursuits involve exigencies allowing warrantless entry.”5 Whether a misdemeanor pursuit does, however, give rise to the “exigent circumstances” required to allow warrantless entry is determined on a case-by-case basis given the totality of the circumstances and the underlying touchstone of the Fourth Amendment: objective reasonableness.6

 

Sanctity of the Home

At issue in Lange, of course, was the sanctity of the home as a place of respite and repose against unwanted and unwarranted governmental intrusion. 7 The Lange Court echoed the earlier pronouncements of the Court when addressing the special status accorded to an individual’s living space. 8 When it comes to the Fourth Amendment, “the home is first among equals” and at its “very core … stands the right of a man [or woman] to retreat into his [or her] own home and there be free from unreasonable government intrusion.”9 Freedom in one’s own home is “the archetype of the privacy protection secured by the Fourth Amendment,” and physical intrusion into the home is “the chief evil against which [it] is directed.”10

The Fourth Amendment, by its nature, “draw[s] a firm line at the entrance to the house,” but “what lies behind that line is of course not inviolable.” 11 A law enforcement officer may always enter a residence with a properly issued warrant.12 Without a warrant in hand, officers may also enter a home if “exigent circumstances” are present.13 The contours of the “exigent-circumstances” exception to the warrant requirement (or any other warrant exception permitting entry into the home), however, are “jealously and carefully drawn” in keeping with the “centuries-old principle” that the “home is entitled to special protection.”14

While the Supreme Court has ratified certain warrantless home entries in the past when the facts and exigencies of the situation necessitated such brisk action without pause for the detached blessing of a judicial officer, the Supreme Court was unwilling in
the context of the pursuit of a suspected fleeing misdemeanant “to print a new permission slip for entering the home without a warrant.”15 The only categorial rule the Court was comfortable with applying based on its precedents, it seems, was one that was long thought to exist since the Court decided United States v. Santana in 1976: a fleeing felon will always provide law enforcement with the exigent circumstances (or compelling law enforcement need) to allow for entry into a home without judicial authorization.16 But assuming Santana treated fleeingfelon cases categorically, the Court declined to embrace the categorical rule announced by the California Court of Appeals — and advocated for by the court-appointed amicus curiae
defending the lower California court’s decision — as applied to pursuit of
fleeing suspected misdemeanants.

 

In the context of the pursuit of a suspected fleeing misdemeanant, the Supreme Court was not willing “to print a new permission slip for entering the home without a warrant.”

 

The ultimate holding of the Lange Court, rejecting a categorical rule that would allow for warrantless entry into the home every time law enforcement pursues a suspected minor lawbreaker, was also consistent with the common law in place at the time of the Constitution’s founding.17 The common law may be “instructive in determining what sorts of searches the Framers of the Fourth Amendment regarded as reasonable.”18 The Framers’ view provides the Plimsoll line: the Fourth Amendment “must provide at a minimum the degree of protection it afforded when it was adopted.”19

The Lange Court struggled with the common law’s treatment of warrantless home entries in the misdemeanor context, but concluded “the evidence is clear on the question before us: The common law did not recognize a categorical rule enabling such an entry in every case of misdemeanor pursuit.”20 Consistent with the Court’s modern precedents, the common law afforded the home strong protection against governmental intrusion. 21 “The zealous and frequent repetition of the adage that a ‘man’s house is his castle’ made it abundantly clear that both in England and in the Colonies ‘the freedom of one’s house’ was one of the most vital elements of English liberty.”22 As Blackstone cogently put it, “every man’s house is looked upon by the law to be his castle of defen[s]e and asylum.”23 To enter a person’s home without a proper warrant was to attack “the liberty of the subject” and “destroy the liberty of the kingdom.”24 These very principles laid the foundation for the Framers’ placement of the Fourth Amendment in the Bill of Rights.25

An often-discussed exception to the rule protecting the home from warrantless intrusion by the government gave an officer the legal authority to enter a house to pursue a felon.26 The felony category, at common law, was a much narrower rubric than it is today.27 “Many modern felonies were ‘classified as misdemeanors’ at common law, with the felony label mostly reserved for crimes ‘punishable by death.’”28 While the commentators (Sir Matthew Hale, Sergeant William Hawkins, Sir William Blackstone) differed on the scope applicable to the felony exception to the warrant requirement, they agreed that it was indeed a felony exception.29 “All their rules applied to felonies as a class, and to no other whole class of crimes.”30

While the commentators similarly differed in their treatment of warrantless entry of the home for lesser offenses, “none suggested any kind of all-misdemeanor-flight rule.”31 Rather, approval of entry turned on the specific circumstances presented in a given case.32 The lesser crimes for which the commentators were inclined to allow warrantless entry of the home included the following: (1) what might be called “prefelonies,” or in the words of Blackstone, “a dangerous wounding whereby [a] felony is likely to ensue”; and (2) “affrays” or “breaches of the peace,” which were mostly violent crimes liable to provoke felonious acts. Sir Matthew Hale also approved of warrantless entry in the context of what the Lange Court described as “a more mundane form of While the commentators similarly differed in their treatment of warrantless entry of harm”: the late-night raucous drinking party.33 Hale, but not the other commentators, thought that a constable was authorized to “suppress the disorder” attendant to “drinking or noise in a house at an unseasonable time of night.”34 Putting all differences and “quiet hours” aside, all of the commentators focused on the particular facts presented on a case-by-case basis and ultimately came to the same conclusion: “When a suspected misdemeanant, fleeing or otherwise, threatened no harm, the constable had to get a warrant.”35

The Lange Court concluded, accordingly, that neither the Court’s modern-day precedents nor the common law supported the existence of a categorical rule allowing warrantless home entry when a misdemeanant flees.36 The common law, like the Court’s more contemporary pronouncements, made distinctions based on “the gravity of the underlying offense.”37 When addressing misdemeanor offenses, however, flight alone was not enough.38 Whether a warrantless entry was permissible depended on “other circumstances suggesting a potential for harm and a need to act promptly.”39

In sum, the Lange Court concluded that the flight of an individual suspected of committing a misdemeanor offense does not always — categorically — justify a warrantless entry into a home.40 “An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency.”41 In many situations confronting law enforcement, officers and agents “will have good reason to enter” — in order to prevent imminent harms of violence, the destruction of evidence, or escape from the home.”42 However, when the officer has time to get a warrant, he or she must do so, even though the misdemeanant fled into the home.43

Notes
1. Lange v. California, 141 S. Ct. 2011,
2016 (2021).
2. Id. (citing Kentucky v. King, 563 U.S. 452,
460, 131 S. Ct. 1849, 179 L.Ed.2d 865 (2011)).
3. Lange, 141 S. Ct. at 2016.
4. Id. at 2016, 2024.
5. Id. at 2016.
6. Id. at 2016-17.
7. See id. at 2018.
8. Id.
9. Id. (quoting Florida v. Jardines, 569
U.S. 1, 6, 133 S. Ct. 1409, 185 L.Ed.2d 495
(2013); Collins v. Virginia, 584 U.S. ____, ____,
138 S. Ct. 1663, 1670, 201 L.Ed.2d 9 (2018)).
10. Lange, 141 S. Ct. at 2018 (quoting
Payton v. New York, 445 U.S. 573, 585, 587,
100 S. Ct. 1371, 63 L.Ed.2d 639 (1980)
(internal quotation marks omitted)).
11. Lange, 141 S. Ct. at 2018 (citing
Payton, 445 U.S. at 590).
12. Lange, 141 S. Ct. at 2018.
13. Id.
14. Id. (quoting Georgia v. Randolph,
547 U.S. 103, 109, 115, 126 S. Ct. 1515, 164
L.Ed.2d 208 (2006)); see also Caniglia v.
Strom, 593 U.S. ____, ____, 141 S. Ct. 1596,
1600, ____ L.Ed.2d ____ (2021) (“[T]his
Court has repeatedly declined to expand
the scope” of “exceptions to the warrant
requirement to permit warrantless entry
into the home.”).
15. Lange, 141 S. Ct. at 2019.
16. Petitioner Arthur Gregory Lange,
represented by Jeffrey L. Fisher of Stanford
Law School’s Supreme Court Litigation
Clinic, argued that Santana had not, in fact,
created a bright-line rule allowing for
warrantless entry into the home to pursue
a fleeing felon. In contrast, the courtappointed
amicus curiae, Amanda Rice, a
former law clerk for Justice Kagan who was
tasked with defending the lower court’s
judgment in light of the Attorney General
of California’s abandonment of its defense
of the categorial rule applied by the lower
court, argued that Santana had, in fact,
created a bright-line rule permitting
warrantless entry into the home to pursue
fleeing lawbreakers of any classification.
See Lange, 141 S. Ct. at 2019 (citing,
respectively, Brief for Petitioner at 7, 25; and
Brief for Amicus Curiae, 11, 26).
17. Id. at 2022-25.
18. Id. at 2022 (quoting Steagald v.
United States, 451 U.S. 204, 221, 101 S. Ct.
1642, 68 L.Ed.2d 38 (1981)).
19. Lange, 141 S. Ct. at 2022 (quoting
United States v. Jones, 565 U.S. 400, 411, 132
S. Ct. 945, 181 L.Ed.2d 911 (2012)).
20. Id., 141 S. Ct. at 2022.
21. Id.
22. Id. (quoting Payton, 445 U.S. at 596-
597); see also Semayne’s Case, 5 Co. Rep. 91a,
91b, 77 Eng. Rep. 194, 195 (K. B. 1604) (“[T]he
house of every one is as to him as his castle
and fortress, as well for his defen[s]e
against injury and violence, as for his
repose.”).
23. Lange, 141 S. Ct. at 2022 (quoting 3
W. BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 288 (1768)).
24. Lange, 141 S. Ct. at 2023 (quoting
Huckle v. Money, 2 Wils. K. B. 206, 207, 95 Eng.
Rep. 768, 769 (K. B. 1763)).
25. See Lange, 141 S. Ct. at 2023.
26. Lange, 141 S. Ct. at 2023.
27. Id.
28. Id. (quoting Tennessee v. Garner, 471
U.S. 1, 13-14, 105 S. Ct. 1694, 85 L.Ed.2d 1
(1985); see also 4 W. BLACKSTONE, COMMENTARIES
ON THE LAWS OF ENGLAND 98 (1791)).
29. Lange, 141 S. Ct. at 2023.
30. Id.
31. Id.
32. Id.
33. Id. at 2023-24.
34. Id. at 2024 (quoting M. HALE, PLEAS OF
THE CROWN 95 (1736).
35. Lange, 141 S. Ct. at 2024.
36. Id.
37. Id. (quoting Welsh v. Wisconsin, 466
U.S. 740, 753, 104 S. Ct. 2091, 80 L.Ed.2d 732
(1984)).
38. Lange, 141 S. Ct. at 2024.
39. Id.
40. Id.
41. Id.
42. Id.
43. Id. n