This February, after a year of mass protests, which forced into the national spotlight the longstanding problems of racism and brutality in law enforcement, the U.S. Supreme Court heard oral argument on a case with significant implications for citizen–police interactions. In Lange v. California, the Court will decide whether to categorically extend the “hot pursuit” doctrine to misdemeanor arrests. Generally, a police officer is required to obtain a valid warrant before entering or searching a person’s home. The hot pursuit doctrine exempts the police from this requirement when entering into a fleeing suspect’s home to effectuate a lawful arrest. This doctrine is one example of a warrant exception under a broader category of “exigency,” circumstances where a reasonable person would believe entry is “necessary to prevent physical harm to the officers, . . . the destruction of relevant evidence, [or] the escape of the suspect.” Currently, state and federal courts are divided on how to determine exigency under the hot pursuit doctrine. One position argues for a categorical approach—that all hot pursuits of misdemeanor suspects should qualify as exigencies. The other argues for a case-by-case determination of whether officers faced a compelling need for official action (e.g. to prevent imminent danger to life, serious damage to property, imminent escape of a suspect, or destruction of evidence) and had no time to secure a warrant.
The Court has already eroded Fourth Amendment protections against police intrusion into peoples’ bodily space by sanctioning stop and frisks upon mere reasonable suspicion of a crime and warrantless arrests for misdemeanors. In a world where there are around 13 million misdemeanor prosecutions each year—including for such conscience-shocking offenses as improper use of the high-occupancy vehicle lane, possession of marijuana, and spitting in public—these policies give police officers nearly limitless discretion to detain and physically search citizens. The Court should avoid similarly eviscerating the “very core” of the Fourth Amendment: “the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”
A categorical rule for misdemeanor hot pursuits is neither supported by the Court’s precedents nor by the principles of “personal security, personal liberty, and private property,” underlying Fourth Amendment protections. Further, a categorical rule relies on and perpetuates a dangerous assumption that misdemeanor arrests are, on average, beneficial to society.
The Court first recognized the hot pursuit doctrine in 1967 in Warden v. Hayden, when it upheld a warrantless entry by police who chased an armed robbery suspect into his home. The Court reasoned that the particulars of the situation created an exigency: “Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.” About ten years later, in United States v. Santana, the Court upheld a warrantless entry into the home of a narcotics-trafficking suspect. Here, police initiated the arrest just outside the suspect’s front door as she fled from her porch into her house. In this case, the Court recognized that obtaining a warrant could delay arrest and ultimately lead to destruction of the drug evidence.
Both Hayden and Santana involved individuals suspected of felonies, not misdemeanors. In both cases, the Court articulated a particularized, compelling, and urgent need for police action, which made obtaining a warrant impracticable. The Court’s reasoning in these cases does not support extending their holdings to all misdemeanor hot pursuits. Not only are there a tremendous variety of misdemeanor crimes, but misdemeanors typically implicate lesser public safety concerns, so lesser law enforcement interests.
Recognizing misdemeanor hot pursuit is also unnecessary for effective law enforcement. For decades, police have operated under the assumption that warrantless entries must be justified by specific exigent circumstances. Therefore, they are already adept at distinguishing between circumstances that do and do not qualify for a warrant exception under exigency. Additionally, in an age where telephonic warrants may be issued in less than forty-five minutes without police leaving the scene of the chase, fewer situations justify warrantless entry than when Hayden was decided. The greatest supporters of a categorical misdemeanor hot pursuit exception fear that absent such a rule, suspects can avoid arrest if they successfully flee into their own homes and wait out the police. Electronic and telephonic warrants should calm their fears. Police can stay at the suspect’s home while calling in a warrant, and arrest the suspect if they leave, or otherwise do so only after obtaining the warrant.
Worse yet, recognition of such a categorical exception for misdemeanor hot pursuits encourages warrantless home invasions, which risk devastating consequences for the safety of citizens and the police, and consequently for community–police relationships. Warrantless home entries are dangerous for police officers and residents. When officers burst through the door unannounced, residents may fear they are under attack and take action in self-defense, putting officers at risk and potentially causing them to open fire in return. This type of miscommunication is what led to the death of Breonna Taylor (though police were executing a warrant in that case, albeit while insufficiently announcing their presence). In another, thankfully less tragic, example, plainclothes officers followed Mason Kamp into his girlfriend’s home after he urinated on the corner of her patio. Fearing the officers were intruders, Kamp’s girlfriend retrieved a handgun while dialing 911. Seeing this, an officer tackled her, and the interaction devolved into a brawl that damaged much of her apartment and sent an officer to the hospital. Unprepared residents may also be injured as the police smash open a gate or front door upon entry. These risks will be disproportionately born by low-income and minority communities, which are more heavily policed and where distrust between citizens and police is at its highest.
Search warrants mitigate the above risks due to the knock-and-announce requirement in the execution of warrants. The knock-and-announce rule “gives individuals the opportunity to comply with the law and to avoid the destruction of property occasioned by forcible entry,” and protects “privacy and dignity” by providing a moment for residents to “pull on clothes or get out of bed.” To be sure, there are exigency exceptions to the knock-and-announce requirement aimed at protecting officers when announcing their presence may endanger their safety. However, that requirement still provides an important safeguard against unnecessarily dangerous or shocking police entries.
In Lange, the Court can avoid the giant pitfall that recognizing a categorical misdemeanor hot pursuit rule would represent for Fourth Amendment jurisprudence. Though avoiding this pitfall is far from a guarantee that police will conduct only reasonable warrantless home entries for misdemeanor arrests. Already, judges tend to believe police officers’ accounts and pay tremendous deference to the judgments of police officers in the Fourth Amendment context. But a correct decision in Lange will at least leave the door open for discussions about how compelling the need for many misdemeanor arrests really is, in light of their attendant harms.
Cliff Goldkind is a student at Northwestern University Pritzker School of Law and the Senior Empirical Editor for Volume 116 of the Northwestern University Law Review.