The flight of a suspected misdemeanant does not justify a warrantless entry into a home.  An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency.  On many occasions, the officer will have good reason to enter – to prevent imminent harms of violence, destruction of evidence, or escape from the home.  But when the officer has time to get a warrant, he must do so – even though the misdemeanant fled.

 

Lange v. California

20 – 18 (2021)

U.S. Supreme Court

June 23, 2021

On Friday October 7, 2016 a few minutes after 10 p.m. Mr. Arthur Lange drove past California Highway Officer Weikert.  Mr. Lange had his car windows down; his music was blaring and he was repeatedly honking his horn for no obvious reason.  The reason he was honking his horn would be discovered a short time later – Mr. Lange was driving impaired … again.  But in this moment Officer Weikert did not know Mr. Lange was impaired.

Officer Weikert followed Mr. Lange and as he entered a housing development off of Highway 12, Officer Weikert activated his lights and siren.  Mr. Lange did not stop and drove into his attached garage at 13750 Hillside Avenue in Sonoma, California.

Mr. Arthur Lange drove in to his garage at 13750 Hillside Avenue in Sonoma, California.  Upon entering, Mr. Lange immediately began to shut the garage door as Officer Weikert had been following him with his lights and siren activated.  Officer Weikert waved his foot to break the safety beam, to reverse the garage door.

As soon as Mr. Lange’s car was all the way in the garage, he began to close the garage door.  Officer Weikert quickly scurried out of his patrol vehicle and waved his foot across the safety beam.  The garage door went up and Officer Weikert went in.  It is this crossing of the garage threshold that would be legally challenged all the way to the U.S. Supreme Court.

Officer Weikert immediately discovered that Mr. Lange had slurred speech and a further investigation determined that he was impaired.  Officer Weikert established probable cause and arrested Mr. Lange.  Officer Weikert obtained a blood draw from Mr. Lange and his BAC was over 0.24% or three times the legal California limit.  Mr. Lange had previously been convicted of OVI so the penalties for him were increased.  Mr. Lange filed a Motion to Suppress which was denied by the trial court.  The California State Court of Appeals denied his appeals.  The Supreme Court of California denied review of his case.  Mr. Lange appealed again to the U.S. Supreme Court which accepted his case and overturned the Motion to Suppress.

The U.S. Supreme Court established the Fresh Pursuit or sometimes called Hot Pursuit doctrine in U.S. v. Santana, 427 U.S. 38 (1976) “[A] suspect may not defeat an arrest which has been set in motion in a public place … by the expedient of escaping to a private place.”.  Momma Santana fled into her home after Philadelphia Police established probable cause she sold heroin to a confidential reliable informant. The Santana case and other cases in Ohio created a four-part test to satisfy the Fresh Pursuit Doctrine:

  1. Officer must have probable cause to arrest at the moment the Fresh Pursuit began.
  2. Fresh Pursuit must begin in a public place.
  3. The pursuit must be immediate.
  4. The pursuit must be continuous.

U.S. v. Santana, 427 U.S. 38 (1976)

Here, Mr. Lange did make a feeble attempt to defeat his arrest by escaping to a private place – his garage.  However, in Santana, the suspect ‘Mamma Santana’, also made a feeble attempt to flee into her home in Philadelphia, Pennsylvania.  However, Philadelphia Police had probable cause to believe that Mamma Santana had just sold heroin to a confidential reliable informant.  The U.S. Supreme Court upheld Mamma Santana’s felony arrest inside her home.

Now comes the impaired Mr. Lange.

The U.S. Supreme made a distinction in this case because Mr. Lange was fleeing from a misdemeanor – failure to comply with the officer’s signal and unnecessary use of horn as contrasted with Momma Santana’s flight from a felony – the sale of heroin.

The U.S. Supreme Court determined that Officer Weikert’s foot beam interruption and crossing the threshold of the attached garage was unreasonable.  The court held “The flight of a suspected misdemeanant does not justify a warrantless entry into a home.  An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency.  On many occasions, the officer will have good reason to enter – to prevent imminent harms of violence, destruction of evidence, or escape from the home.  But when the officer has time to get a warrant, he must do so – even though the misdemeanant fled.”.

Information for this article was obtained from Sonoma County District Attorney Brief in Lange and Lange v. California, 20 – 18 (2021).

Lessons Learned:

  1. Law enforcement may not chase a fleeing suspect who has committed a misdemeanor into a home unless the officer can articulate the suspect is going to cause imminent harm to persons inside the home, the suspect is going to destroy evidence or the is going to escape from the home. These restrictions are specifically stated in Lange.  This type of decision is what makes law enforcement THE HARDEST JOB IN AMERICA!  In most cases an officer is not going to be able to predict, IN THE MOMENT, whether or not the fleeing suspect is ‘going’ to do any of the aforementioned actions – unless of course during the foot pursuit the suspect makes a pronouncement ‘I’M GOING TO CAUSE HARM TO PERSONS INSIDE THIS HOME!’.  This is likely never going to happen or if it does, it would be a one in million chance.  Consequently, the officer is left to make a very split-second decision as to whether or not to follow the suspect inside.  If the officer hesitates for more than a few moments, the Fresh Pursuit doctrine will become stale and the officer will not lawfully enter the home because the foot pursuit must be continuous at all times.
  1. One of the challenges of chasing a suspect in a foot pursuit will be whether or not the suspect is a resident or invited guest of home to where he fled or if the suspect just committed a burglary, or breaking and entering, in the presence of the officer. Unfortunately, there will be no judge or attorney to shout out instructions during foot pursuits.  But officers would be wise to not force entry unless the foot pursuit originates as a felony or one of the aforementioned factors can be clearly established.
  1. Another challenge for law enforcement is whether or not the suspect committed a misdemeanor or felony. If an officer observes a suspect sucker punch another person on the street corner and then flees on foot, can the officer pursue that suspect into a home?  Uhm … well … maybe.  When the victim of the punch fell, did the victim sustain a concussion?  Did the victim sustain a broken bone when his head hit the ground?  Did the victim of the punch include ‘substantial suffering’ or involve ‘any degree of prolonged or intractable pain’.  See O.R.C. 2901.01 and O.R.C. 2903.11.  If the victim’s injuries rose to the level of felony such as ‘intractable pain’, then the officer can chase the suspect into a building under Santana.  If the victim did not suffer ‘intractable pain’, then the officer cannot chase the suspect into a home – under Lange.  I am confident that other states have these types of misdemeanor to felony thresholds that will provide complete ambiguity on how officers are to proceed in foot pursuits.
  1. In Ohio, the Lange case now overturns State v. Flinchum, 95 Ohio St.3d 43 (2002) which was decided by the Supreme Court of Ohio. Flinchum permitted Ohio law enforcement to chase misdemeanants, under some circumstances, into a home.  Flinchum failed to stop, just like Mr. Lange with law enforcement behind him with lights and siren.  Mr. Flinchum then fled on foot into a residence, which ended up being his own at 200 South Sutphin Street in Middletown, Ohio.  Mr. Flinchum was charged with squealing his tires, fleeing and eluding and just like Mr. Lange, impaired driving.  But now that same fact pattern would inhibit law enforcement from chasing Mr. Flinchum into a residence.
  1. The holding states in pertinent part “The flight of a suspected misdemeanant does not justify a warrantless entry into a home.”. [emphasis added] So what if a suspect flees into a building that is not a residence? Can officers pursue the suspect into a building?  Since the U.S. Supreme Court used the word home that would infer that an officer could pursue a fleeing misdemeanant into a building that is not a residence.
  1. The upside for law enforcement is that officers will now file more warrants, but the downside is that officers will get less cardio during their shift – unless of course, police academies use 40-yard-dash times for entry requirements.

Does your agency train on the Fresh Pursuit Doctrine?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.