Supreme Court

SCOTUS Refuses 'To Print a New Permission Slip for Entering the Home Without a Warrant'

Fourth Amendment advocates win big in Lange v. California.


In California v. Lange (2019), the California Court of Appeal held that a police offer may always enter a suspect's home without a warrant if the officer is in "hot pursuit" of the suspect and has probable cause to believe that the suspect has committed a misdemeanor. Today, in an important win for Fourth Amendment advocates, the U.S. Supreme Court overturned that ruling. "We are not eager—more the reverse—to print a new permission slip for entering the home without a warrant," declared Justice Elena Kagan in Lange v. California.

The case originated when Arthur Gregory Lange drew the attention of a California highway patrol officer for honking his horn and playing his car stereo at a loud volume, both of which are traffic infractions at worst. The officer followed Lange's car and ultimately switched on his overhead lights just a few seconds before Lange pulled into his own driveway. Lange, who says he never saw the officer's lights in his rearview mirror, entered his driveway and pulled into his garage. The officer quickly parked, exited his vehicle, stuck his foot under the garage door to prevent it from closing, and performed a search without a warrant.

The state of California has "argued that the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry," Kagan observed in her majority opinion, which was joined in full by Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But that sweeping argument, Kagan declared, ran afoul of both SCOTUS precedent and the Fourth Amendment's common law roots.

"When the totality of circumstances shows an emergency—such as imminent harm to others," Kagan observed, "the police may act without waiting." But "when the nature of the crime, the nature of the flight, and surrounding facts present no such exigency," she held, "officers must respect the sanctity of the home—which means they must get a warrant."

The Fourth Amendment's common law origins point to the same result, Kagan continued. "'To enter a man's house' without a proper warrant, Lord Chief Justice Pratt proclaimed in 1763, is to attack 'the liberty of the subject' and 'destroy the liberty of the kingdom,'" she wrote, quoting from a venerable British common law judgment. "That was the idea behind the Fourth Amendment."

"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," Kagan concluded. "But when the officer has time to get a warrant, he must do so—even though the misdemeanant fled."

Writing in concurrence, Chief Justice John Roberts, joined by Justice Samuel Alito, offered a different take on the Fourth Amendment. In fact, Roberts' concurrence reads more like a dissent, as it denounces the majority's reasoning as "absurd and dangerous," "hopelessly indeterminate," and likely to impede necessary police work. According to Roberts, hot pursuit "is itself an exigent circumstance" that allows the police to bypass the Fourth Amendment's usual warrant requirement.

Fortunately for Fourth Amendment advocates, Roberts' narrow reading only managed to attract one other vote today.

NEXT: Inside the Battle Over the Soul of the Libertarian Party

Supreme Court Fourth Amendment Police Law Warrants

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38 responses to “SCOTUS Refuses 'To Print a New Permission Slip for Entering the Home Without a Warrant'

  1. 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…


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  2. did anybody write about how exigent circumstances are totes baloney?

    1. I don’t have a problem with some exigent circumstances, such as chasing someone you saw commit a violent felony. The problem is government judges always reinterpreting the phrase in the government’s favor.

      1. +

      2. Yes, the way Kagan’s opinion reads it could create the exact same problem that exists with the qualified immunity cases. If officers aren’t made aware of an exactly similar case in which someone’s constitutional rights were violated in an exactly similar way, they won’t be held accountable because how could they have known the situation didn’t qualify as exigent?

    2. While it may be true that courts sometimes give too much deference to police claims of exigent circumstances, a textual analysis of the Fourth Amendment, which only prohibits “unreasonable” searches and seizures, necessarily requires recognition of some warrantless police activity based on circumstances, aka exigency.

      1. Which would be fine if exigency were clearly and strictly defined.

        As a general rule, warrantless searches and / or seizures should be considered presumptively unreasonable, with the burden on the government to rebut that presumption, with actual evidence not just subjective opinions of officers.

        1. Innocent until exigent circumstances ‘prove’ otherwise.

          1. lol this.

    3. That dude might’ve had a woodchipper in his garage, you can see why Roberts might be worried.

    4. I think it’s more proper to say that the concept of “exigent circumstances” is deeply abused, rather than being “totes baloney.” There are certain circumstances in which I would very much prefer police NOT stop and call a judge–if there is clear and imminent harm or direct threat of imminent harm to a child, for instance. Or a wellness check where they have clear evidence that all is not, in fact, well; for instance if they can see a body on the floor not moving–waiting to call a judge under those circumstances could cost someone their life.

      However, those circumstances should be very clear-cut and well-defined to apply, and not “well I thought I smelled pot” type BULLSHIT that you get all the time.

      1. was hyperbole. and agreed.

      2. “for instance if they can see a body on the floor not moving” Like asleep? At what point do they determine “exigency”? After 10 knocks? Or 5? Or does 1 knock qualify? Or does just SEEING someone laying on the floor constitute “exigency”? I ask because…well…I’ve slept on the floor myself, before. I’ve been laying on the floor watching the telly with my cats and fallen asleep there.

  3. “In fact, Roberts’ concurrence reads more like a dissent, as it denounces the majority’s reasoning as “absurd and dangerous,” “hopelessly indeterminate,” and likely to impede necessary police work. According to Roberts, hot pursuit “is itself an exigent circumstance” that allows the police to bypass the Fourth Amendment’s usual warrant requirement.”

    Roberts sucks; more to come.

    1. Proven himself to be a real statist POS, hasn’t he?

    2. And no surprise Alito joined him in.

    3. Reading between the lines the cop lied and tried to manufacture a warrantless search. He saw some minor conduct which could possibly justify a traffic stop, but he hoped he could leverage into a home search and find drugs, illegal gun possession, or stolen property.

      So he follows the person home, maybe not even his home, flips his lights on when he pulls in his driveway, and runs to enter the home as the driver gets out of his car.

      Now after this loss his supervisor tells him, nice try, but we’ll get them next time.

  4. Yes; I am happy to see collaboration between the camps [Kagen/ Bryer; Gorsuch, Barrett] rendering him moot; however, we all [mostly] know how they will vote on a particular issue is likely to have way more to do with the subject at hand [restricting police powers good, gun rights bad] than judicial philosophy. When the 2A case comes up, it will be Gorsuch, Thomas, Barrett, and Alito vs. Kagen, Sotomayor, Breyer, and Roberts. Kavanaugh is, in my opinion, a toss up at best.

  5. The Supreme Court also ruled in favor of a high school cheerleader, who was punished at school for writing “fuck” in Snapchat.

    But don’t worry, they the Court said they can still regulate off campus speech in other areas.

    “While the Supreme Court found Levy’s school went too far when it punished her for her social media posts, which are entitled to First Amendment protections, Breyer wrote there is some student speech that takes place off campus that schools can regulate, such as bullying or harassment and threats aimed at teachers or other students.”

    Is, for example, an Asian person bullying or harassing someone if he or she posts something off campus against affirmative action?

    What about someone supporting the construction of a border wall, opposing abortion, or expressing their religious convictions regarding gay marriage or wedding cakes? Is that bullying or harassment–if the undocumented, girls who’ve had abortions, or LGBT might read them?

    And if a public school can regulate their students’ off campus behavior in such a way, does this interest extend to other government institutions, as well? What other government institutions are permitted to regulate our speech outside their offices? What about employees of the DMV?

    1. The DMV employees here bully people all day long. It’s incredible how obnoxious they are with their little bit of power.

      1. My question is about whether the government can monitor and punish the speech of DMV employees as expressed on social media when they’re not at work?

    2. Your examples are too vague to be meaningful. Any of those scenarios can be harassment or not harassment. Expressing dislike of a policy, stating one’s support or opposition to laws or public actions, or stating personal religious beliefs is not harassment unless one has been specifically told that it is unwelcome and asked one to stop repeating it in their presence. Expressing, for instance, that people who support it should be dragged into the streets and beaten, that people who are gay or support choice are going to hell, or that all immigrants are is from the start bullying and/or harassment, regardless of who reads or hears that opinion, because it is directed at individuals or groups.

      And yes, in fact, employers can and DO police what people say off the clock; in some fields, such as education and medicine, it’s LEGALLY MANDATED some of what can and cannot be said. The consequences are typically “you’re fired.” Because harassment has NEVER been protected speech. We’ve had libel, slander, and harassment laws since before we had a CONSTITUTION. This is not some radical new infringement on something heretofore sacrosanct; these restrictions have ALWAYS been present to a greater or lesser degree.

      Sorry, but “free speech” has its limits, just like “freedom of movement.” It STOPS when you start hurting other people, just like you can’t legally punch someone just for the hell of it. It’s not exactly a difficult concept, unless you’re so egotistical you can’t comprehend basic respect for others.

      1. So hurt feelings are actionable, just as long as the “victim” has previously advised the speaker of the statements to which s/he might take offense? I find that opinion offensive to hear, and if you express it again I will demand that agents of the state police your bullying.

        See how that works?

      2. There is no legal requirement to respect others, or only say things that don’t offend them.

        Your understanding of what is, and is not legal speech is lacking.

  6. Without charges for felony deprivation of rights under color of law against the cop and conspiracy to commit deprivation of rights under color of law (US title 18 sections 241 and 242) against the judges and prosecutors in the lower courts, this ruling means nothing.

    This is not a win until the criminals are punished. In this case, we have 5 or 6 judges a few prosecutors and at least one cop who should pay millions in fines and never get out of prison.

    But that only happens when the govt upholds the laws that protect the Constitution. As it is, they only uphold the rules (not laws) that prevent the application of laws that uphold the Constitution. Qualified Immunity is the same problem with the same solution.

    I fear there is no part of government in the USA today that is legitimate. Certainly not at the national (no longer federal) level.

    1. I think the problem with your take is this assumption that “legitimate” means “good.” As it happens, I agree with you that qualified immunity is nothing more than legalizing criminal cops, and that they need to be punished. It is certainly not in accordance with the spirit of the Constitution regardless of what scholars may say about the letter of the law. Unfortunately, it is all LEGITIMATE, in that these are the laws that have been duly passed by legislature, and that the Supreme Court of the land has not yet deemed unenforceable or in contravention of the Constitution. It’d be a lot easier to fight if it WEREN’T “legitimate,” aka “confirmed by the system.”

  7. Where was Thomas on this?

    1. I wondered the same; I expect he would have come down on the side of the police?

      1. I just read through the link quickly; he concurred with the majority on 1 part and agreed with them on 2nd part but wrote his own stating that a bunch of exemptions still hold based on previous case law.

    2. Agreed in part, and concurred with majority.

      So it was a 9-0 ruling, with there being at least 3 interpretations as to why, and which sometimes are in conflict.

      Of course Reason chose to omit that tidbit, and try and create discord where none exists.

      1. Thank you both for the clarification.

  8. Fortunate thing that a majority of of The U.S. Supreme Court hasn’t forgotten The Fourth Amendment. As for California, it seems to have done so, a real pity, but then that’s California..

  9. It strikes me as odd that preventing the destruction of evidence is an extignet circumstance which negates the 4th amendment protection. It relies on the assumptions that both the evidence exist and that there is intent to destroy it. Not to mention if it’s happening in private and involves something belonging to the suspect it seems that their right not to incriminate themselves should prevail.

  10. I had hopes for Kavenaugh, but his concurring decision kind of made me throw up a little in my mouth:

    “In his thoughtful opinion, THE CHIEF JUSTICE concludes that pursuit of a fleeing misdemeanant should itself constitute an exigent circumstance. The Court disagrees. As I see it, however, the difference between THE CHIEF JUSTICE’s approach and the Court’s approach will be academic in most cases. That is because cases of fleeing misdemeanants 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.”

    Yeah we should applaud a decision that says that the police cannot enter a house without a warrant to arrest someone for a misdemeanor, unless they want to.

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