A Fourth Amendment Mistake the Supreme Court Should Fix

Don’t expand the “hot pursuit” exception to the Fourth Amendment.


The Fourth Amendment requires law enforcement officials to get a warrant before searching a suspect's person or property. Alas, the courts have concocted a number of dubious exceptions to that constitutional safeguard.

The California Court of Appeal, 1st Appellate Division, offers a recent case in point. In California v. Lange (2019), that court ruled that a police offer may enter a suspect's home without a warrant if the officer is in pursuit of the suspect and has probable cause to believe that the suspect has committed a misdemeanor.

The court's ruling invoked a legal doctrine known as the "hot pursuit" exception. In short, it says that if a police officer is chasing a suspected violent felon—such as a murderer or a terrorist—the officer need not stop to get a warrant before following that suspect into the suspect's home.

The California court took the "hot pursuit" exception and ran it off the constitutional cliff. Arthur Gregory Lange was not suspected of anything that even remotely resembled a violent or dangerous crime. Lange came to the attention of a California highway patrol officer because he had honked his car horn several times and was playing his car stereo at a loud volume—both of which are traffic infractions at worst. The officer then began following Lange's car. Just as Lange was approaching his own driveway, the officer turned on his overhead lights. Lange, who says he never saw the lights in his rearview mirror, proceeded to enter his driveway and park his car in his garage.

Lange's failure to stop for the police could potentially qualify as a misdemeanor. But it is what happened next that is at the heart of the case: The officer parked, left his vehicle, stuck his foot under the garage door to prevent it from closing, and entered Lange's property without a search warrant.

"Because the officer was in hot pursuit of a suspect whom he had probable cause to arrest for violation of [a misdemeanor], the officer's warrantless entry into Lange's driveway and garage were lawful," the state court said.

Lange has appealed and his case will be heard by the U.S. Supreme Court sometime later this term. As Lange and his lawyers point out in a brief, the stakes are high:

A categorical misdemeanor-pursuit exception [to the Fourth Amendment's warrant requirement] would give police officers discretion to enter private dwellings based on a vast array of minor offenses. The burden of those warrantless entries would be felt most acutely in communities that are already disproportionately subject to discretionary enforcement of misdemeanor laws. And that burden is severe: A warrantless entry invades the privacy and security of everyone in the home, not just the suspect. It also risks violent confrontations between officers and residents (who many not realize the invaders are the police). Experience has shown that, all too often, those confrontations end in tragedy.

The Supreme Court has participated in plenty of Fourth Amendment mistakes over the years. Here is one that the Court has a chance to fix.

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  1. So all an officer has to do is claim that he thought one of your tail lights was out. It doesn’t matter if it actually was out. It only matters if he thought it was out. Now he can invade your home and go through your stuff without repercussions. This kills the 4A completely.

    1. 4A has been dead or on life support for decades. There is zero remedy if you aren’t prosecuted.

      1. And even if you are prosecuted, the only remedy is that evidence gets tossed.

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    3. If you drive all over town with a cop’s lights rolling and sirens a-blazing right behind you, I feel beyond a reasonable doubtedly confident you did something worser than have a taillight burn out.

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  2. Now imagine a Harris Biteme administration that takes this one to the next level.

    Thanks for voting democrat.

  3. The court’s ruling invoked a legal doctrine known as the “hot pursuit” exception.

    Coltrane v Duke (1978)

    1. Let the mountain get them. The law never will.

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      1. Just to piss you off

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        1. This.

          I’m curious where other states stand on the doctrine at the heart of this case. Lots of crimes that people would run away for are misdemeanors, DUI especially. Letting them run home and declare “Ollie-ollie oxenfree,” seems like it would encourage people to run. I guess the officer could always call in and apply for an arrest warrant.
          Make running from the cops a felony, and we get around this particular problem.

          “I didn’t see the officer’s flashing lights in my rear view mirror…” LOL. Have you seen patrol cars lately when they’re all lit up? Things look like one of the ships from Close Encounters of the Third Kind, sitting by the side of the road.

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  6. A sense a market for a garage door with no automatic stop and a guillotine blade. Put your foot under my door and lose it. I have no idea what the court will do, but I’m guessing Gorsuch will land on the side of the 4th Amendment.

    1. A market that will go eternally unfulfilled. The automatic stop is required by government regulations.

      1. Interesting hypothetical. The government does require the manufacturer to include the automatic stop. I don’t think the government can require the homeowner to install it, though. Nor can they stop the homeowner from disabling it, I think. And there’s nothing in the housing code that says you can’t sharpen the bottom edge of your garage door if you really want to. So what if some other manufacturer deliberately made an after-market product that did the same thing? Does the government have legal grounds to stop that from being sold to homeowners?

        By the way, I wouldn’t put a guillotine blade on the door. I’d recommend spikes that go into holes in the sill. That makes it a security measure to increase the locking strength of the door. The fact that the spikes are small, only an inch apart and sharp enough to punch through shoe leather is pure coincidence.

        1. I got sick of not being able to duck out the closing door (either for fun like when I was a kid, or because I wanted to close the damned door but be outside the garage). So I just installed the two electric eye thingies about a foot apart on the roof truss right next to the opener.

        2. Dude, chopping off someone’s foot is Gross Bodily Harm, and you’ll do 15 years.
          Any bullshit about “it’s a security measure!” will no effect, except amusing your cellmate.

          1. Or if some kid wanders under and gets hurt, god forbid a grandchild or neighbor. Huge liability.

  7. Is there no distinction between apprehending a suspect and searching his house?

    Is it really the best policy that someone can escape lawful police pursuit by ducking into a house?

    Maybe the real flaw is allowing the secondary searches.

    1. “Is it really the best policy that someone can escape lawful police pursuit by ducking into a house?”

      Yes, yes it is.

      If the cop doesn’t like it, he can knock on the door saying it’s the police. If nobody comes out, call for backup, surround the house, and get a warrant.

      1. But the bad guy might get away. Or the officer is tied up getting a warrant, keeping the officer away from catching jaywalkers.

    2. Why is the pursuit itself per say “lawful” without a warrant?

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  9. The Supreme Court has participated in plenty of Fourth Amendment mistakes over the years.

    If you think those were mistakes, I’ve got some ocean-front property in Nebraska you might be interested in buying.

    1. SCOTUS has gutted the 4A over the last few decades. The number of judge made exemptions is huge now.

  10. Do judges ever refuse to sign a warrant?

  11. 4th amendment jurisprudence is fucked up no matter what, because they apply it only to evidence of crimes. The solutions so far do both too little — by failing to remedy unlawful searches of those who are not guilty — and too much — by interfering with the unrelated question of somebody’s guilt. It provides a little discouragement against police misfeasance, but none at all if they just want to fuck with you.

    1. It’s not even a fully consistent remedy for the guilty. If an item is ruled to have been illegally seized, why don’t they return it to the guilty party, as logic would dictate? If the idea is to restore the condition to the way it was before the police took the item, then it should be returned, even if it was contraband or stolen. It’s like in devising the current regime of 4th amendment jurisprudence, judges said, hmm…this much would be not enough, that much would be too much — like it’s a quantitative determination (like the way I playfully put the comment above), rather than an attempt to right every detail possible. It’s like, somebody’s going to feel screwed no matter what, so let’s spread the screwage around in a way that feels equitable.

      All criminal law is a mindfuck, and 4th amendment jurisprudence is just a little piece of it.

  12. Americans are socially and even judicially discouraged, through legal vagueness and insufficient adjudication, from exercising their rights to the fullest, by the likes of copsuckers, cowards and authoritarians.

    The people have no significantly reliable and effective mechanism to pushback against cops when they continuously exercise their athoritah that enables them to indefinitely push the envelope or outright violate the rights of We the People until it is ruled on. Them are always looking for loopholes and opportunities to expand their intrusiveness, with things like stingrays which Them were unwilling to transparently disclose to the public or in court and no confidential informant accountability. All while being portrayed as unceasing defenders of individual rights. FTP

  13. Has The Fourth Amendment died, or does in lie bleeding the death of A Thousand Cuts?

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  15. This ruling is utterly ridiculous. I am in full support of the police but I am in more support of the constitution. These safeguards are in place to protect you from corrupt and/or incompetent officials – not the honest ones. Your home is your castle – even for the police.

  16. Cop should have been shot to death the second he entered the home. All the neighbors should have taken part in it.

    “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family?” -Aleksandr I. Solzhenitsyn

    Until we make it lethal to disregard the constitution, we have no liberty nor justice.

    Police (as opposed to a sheriff) are a progressive, Nazi institution.

    Support America. Uphold the US Constitution. Support your sheriff. End the police by any means necessarry.

  17. Under the 1873 Comstock law, a rhythm method pamphlet “misdemeanor” qualified for ten years on a chain gang plus a fine worth $300,000, but their motives were clearly altruistic. The March, 1929 five-and-ten law made beer a felony because by then, any pretext for a 2-year prison term was, in 1920s jurisprudence, a “felony.” With 95% of the voters plunking for communo-fascist totalitarianism, the court could pragmatically declare all misdemeanors felonies and fine the officer for dereliction for not shooting the suspect in the back seven times. The Kenosha and Salt Lake City police unions would give THAT a standing ovation.

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