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Supreme Court Curbs Warrantless Home Entry for Misdemeanors (3)

June 23, 2021, 2:08 PMUpdated: June 23, 2021, 6:55 PM

Police can’t automatically pursue fleeing misdemeanor suspects into homes without warrants, the U.S. Supreme Court said in its latest decision bolstering home protections against law enforcement entry.

“A great many misdemeanor pursuits involve exigencies allowing warrantless entry,” Justice Elena Kagan wrote for the court on Wednesday in vacating a California state court decision. “But whether a given one does so turns on the particular facts of the case.”

The Fourth Amendment dispute posed a test for the justices between balancing the sanctity of the home against law enforcement interests. Lower courts were divided over whether misdemeanor pursuits categorically allow warrantless entry.

Resolving the conflict by answering “no” to that question, Wednesday’s ruling marked the latest search-and-seizure win for a criminal defendant or civil-suit plaintiff this term, following earlier victories on the meaning of being seized and another case on warrantless home entry.

A categorical rule “could have potentially opened the door to misuse, further eroding public trust in law enforcement,” said Jessica Ring Amunson, co-chair of Jenner & Block’s Appellate and Supreme Court Practice.

“The Court avoided that outcome today,” said Amunson, who filed an amicus brief supporting the result the court reached in the case, Lange v. California, for the DKT Liberty Project, the Law Enforcement Action Partnership, Reason Foundation, and Due Process Institute.

Kagan’s opinion was joined by Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and partly by Justice Clarence Thomas.

“When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting,” Kagan said.

But when “the nature of the crime, the nature of the flight, and surrounding facts present no such exigency, officers must respect the sanctity of the home—which means that they must get a warrant,” she said.

Chief Justice John Roberts wrote an opinion concurring in the judgment that reads more like a dissent. Joined by Justice Samuel Alito, Roberts sharply criticized Kagan’s reasoning and said hot pursuit is itself an exigent circumstance.

Kavanaugh added his own concurrence, in which he emphasized that the decision doesn’t disturb the long-standing rule categorically allowing warrantless pursuits for fleeing felons.

He also tried to mediate the disagreement in the Kagan and Roberts opinions. Calling the chief justice’s concurrence “thoughtful,” Kavanaugh said the difference between the chief justice’s and the majority’s approach “will be academic in most cases.” Kavanaugh said “fleeing misdemeanant” cases “will almost always also involve a recognized exigent circumstance—such as a risk of escape, destruction of evidence, or harm to others—that will still justify warrantless entry into a home.”

Thomas had a concurrence, too, joined partly by Kavanaugh. Thomas wrote separately to make two points: “the general case-by-case rule that the Court announces today is subject to historical, categorical exceptions; and under our precedent, the federal exclusionary rule does not apply to evidence discovered in the course of pursuing a fleeing suspect.” Kavanaugh joined the exclusionary rule part. The rule bars illegally obtained evidence from being used against defendants at trial.

The case stemmed from the prosecution of Arthur Lange, who was charged with driving under the influence in Sonoma, Calif.

He moved to suppress the evidence against him, arguing that the officer who followed him on the road couldn’t automatically follow him into his garage. He pleaded no contest to a misdemeanor and that conviction was upheld on appeal.

Notably, both Lange and California officials agreed that misdemeanors shouldn’t categorically qualify as exigent circumstances permitting warrantless home entry. So the justices appointed a third-party, Jones Day’s Amanda Rice, to argue in support of the judgment against Lange.

That unusual alignment prompted rare praise from a government office in a decision limiting government power. In a statement on Wednesday, California Attorney General Rob Bonta applauded the ruling for “placing important safeguards on the circumstances in which police officers can enter a home without a warrant.”

The Supreme Court vacated the California Court of Appeal’s ruling, which applied a categorical rule, and sent the case back there for further proceedings.

Jeffrey Fisher of the Stanford Supreme Court Clinic, who’s also special counsel at O’Melveny & Myers, argued for Lange.

“For hundreds of years, the warrant requirement has protected personal privacy and provided a means of assuring individuals that officers are acting lawfully,” Fisher said after the ruling. “Warrants thereby honor the rule of law and help to avoid sometimes-tragic outcomes.”

The case is Lange v. California, U.S., No. 20-18.

(Adds Bonta statement, comments from Amunson, Fisher. )

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Tom P. Taylor at; Seth Stern at; John Crawley at