Supreme Court’s Latest Fourth Amendment Case Clarifies Exigent Circumstances Doctrine

By John Grimm

The Supreme Court recently clarified the limits of law enforcement’s ability to enter a fleeing suspect’s home without a warrant in Lange v. California. While the Fourth Amendment generally requires police to get a search warrant before coming into a house, they can make a warrantless entry under certain exigent circumstances.[1] Lange presented the question whether the pursuit of a fleeing misdemeanor suspect is categorically an exigent circumstance. The Court held that it is not—exigency must be assessed on a case-by-case basis, and a suspect’s flight is only one circumstance that officers should weigh in making that assessment.

The Lange holding is narrow. First, it is limited to seizures of misdemeanor suspects because, unlike felonies, misdemeanors can range in severity from violent assaults to very minor infractions. Second, the Court did not hold that the Fourth Amendment prohibits police from entering a fleeing misdemeanor suspect’s home without a warrant, only that it does not categorically allow them to. And as Justice Kavanaugh pointed out in a concurring opinion,[2] in practice, cases of fleeing misdemeanor suspects will almost always include a recognized exigent circumstance. Finally, the Court did not upset the rule that pursuing a fleeing felon is itself an exigent circumstance that permits warrantless entry into a house.

Chief Justice Roberts, joined by Justice Alito, concurred in the judgment, but it is not clear why, because his opinion reads very much like a dissent, and it is difficult to discern any area of agreement with the majority.[3] He argued that hot pursuit has always been considered an exigent circumstance that justifies a warrantless home entry, and that the Court had never held that an officer’s ability to apprehend a fleeing suspect depends on what crime is eventually charged.

In addition to its substantive holding, Lange is interesting for its illustration of the role history continues to play in the Justices’ Fourth Amendment jurisprudence. While the majority grounded its analysis first and foremost in current precedent and a general reasonableness analysis, it included a separate discussion to demonstrate that “[t]he common law in place at the Constitution’s founding leads to the same conclusion.” Chief Justice Roberts also includes a discussion of founding-era common law, to argue that “[c]ountless sources support the proposition that officers could and did pursue into homes those who had committed all sorts of offenses that the Court seems to deem ‘minor.’” These kinds of historical debates have become nearly de rigueur in search and seizure cases, as the Court regularly remarks that the Fourth Amendment responded to specific colonial concerns about police practices. Nevertheless, such excursions into the historical record often lead to a draw, with both sides of an argument finding evidence to support their position.

A final noteworthy aspect of Lange is that California chose not to defend its earlier position, so the Court appointed an amicus to defend the decision below. The use of Court-appointed amici to argue a position that no party is advocating is a relatively mysterious phenomenon that occurs roughly once per term, although there are no formal rules governing the process.[4] One interesting question raised by this practice is whether an Article III case or controversy even exists once the respondent abandons its position. In Lange, California actually indicated in its opposition to Lange’s petition for certiorari that, if the Court took the case, it would not defend a categorical exigent-circumstances rule. Thus, even before the Court took the case, it was clear that the central issue was no longer in dispute between the parties. Nevertheless, there remained an important question for the Court to answer, because lower courts were divided over the correct standard to apply. And since California urged a remand to determine whether the exclusionary rule should apply even if the search was illegal, the case is not moot even if the parties agree on the correct Fourth Amendment standard.

[1] For example, police can come into a house without a warrant in an emergency to help to an injured occupant or to prevent someone from being injured, protect officer safety, or prevent the destruction of evidence.

[2] He also joined the majority opinion.

[3] The majority did not reach a conclusion about the actual search at issue, it simply clarified the standard that the California appellate court should apply on remand. Since the Court’s holding solely concerned the applicable standard, and since Chief Justice Roberts felt that the standard announced was incorrect, it is unclear what aspect of the judgment he concurs with, and it is puzzling that his concurrence was not actually a dissent.

[4] See Katherine Shaw, Friends of the Court; Evaluating the Supreme Court’s Amicus Invitations, 101 Cornell L. Rev. 1533 (2016).

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