Law

A Good Day for the Fourth Amendment

"We are not eager—more the reverse—to print a new permission slip for entering the home without a warrant," declared Justice Kagan in Lange v. California.

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In 2019, a California appeals court said a police officer may always enter a suspect's home without a warrant if the officer is in "hot pursuit" and has probable cause to believe the suspect has committed a misdemeanor.

In June, the U.S. Supreme Court gave that decision the benchslap it deserved. "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 a California Highway Patrol officer observed Arthur Gregory Lange repeatedly 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 switched on his overhead lights just a few seconds before Lange pulled into his own driveway. Lange, who said he never saw the officer's lights in his rearview mirror, entered his driveway and pulled into his garage. The officer parked, exited his vehicle, stuck his foot under the garage door to prevent it from closing, followed Lange in, and had him perform field sobriety tests, which ultimately led to a DUI charge.

The state 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 position ran afoul of both SCOTUS precedent and the Fourth Amendment's common law roots.

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

The common law origins of the Fourth Amendment commanded the same result. "'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,'" Kagan wrote, quoting from a venerable British common law judgment. "That was the idea behind the Fourth Amendment."

Writing in a concurrence that reads more like a dissent, Chief Justice John Roberts, joined by Justice Samuel Alito, denounced the majority's reasoning as "absurd and dangerous," "hopelessly indeterminate," and likely to impede necessary police work.

Fortunately, Roberts managed to attract just one other vote. The Fourth Amendment had a good day in court.

NEXT: Brickbat: A Load of Garbage

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  1. Roberts is such a shit judge. Occasionally he votes correctly.

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    2. He is a statist and an institutionalist. “Hey, whatever the government wants to do, as long as it doesn’t make the Court look bad” summarizes most of his opinions. IOW yes he’s an awful judge.

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  2. There was a DUI charge….but was there a conviction?

    Glad SCoTUS administered a ‘benchslap’ here. Maybe 4A really does count for something.

    1. Not sure but another article indicated he was 3 times the limit on the breathalyzer.

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        2. And while driving. I’m not defending the actions of the police. I like this ruling. But we should be honest with what occurred. He didn’t go from “not drunk” to 3 times the limit in a minute.

          1. Agreed. And if the cop had “reasonable suspicion” he was drunk while he was driving, it would take about 20 minutes to get a warrant, which is what he should have done.

    2. Lange pled no contest to the DUI. My guess is that so Lange could continue his appeals. Decent breakdown at LII’s treatment of the cert petition, here: https://www.law.cornell.edu/supct/cert/20-18

      Expect more people to run from the cops now, since the Supremes have ruled that, if you can make it to home base, you’re good. Then again, it’s not like people haven’t been incentivized to run from the cops the last dozen years or so anyway. And it’s for DUI, not something like theft or murder. We’re worried with DUI that you might run into somebody while doing it. Well, this guy made it home. Problem solved. Make a report of it, and the next officer that pulls him over at 0-dark thirty, will know what to expect. Not like DUI is an oft-repeated offense or anything.

      1. “Not like DUI is an oft-repeated offense or anything.”

        Whatever odds Vegas gives, I’m taking him celebrating his win at his favorite bar.

      2. Expect more people to run from the cops now, since the Supremes have ruled that, if you can make it to home base, you’re good.

        Not quite. The Supremes rules that once you make it home the officer can’t follow you inside without a warrant, which they can easily get. Just buys you a little time.

        1. And still allows warrantless entry if other exigent circumstances are present.

      3. The DUI was irrelevant to this case,since the officer’s warrantless intrusion wasfor a misdemeanor, and the state’s argument was that misdemeanors allow hot pursuit even when there is plenty of time to get a warrant.

        1. Well the Supreme Court did say that your rights can be suspended in the name of DUI.

          1. Seems at odds with their allowing road blocks, interfering with one’s free right of travel, to be able to “catch” one in a hundred drivers, under the influence, because “public safety”, doesn’t it?

      4. You were drunk once before — probable cause?
        No thanks on the police state.

        1. No genius, you were (likely) drunk once before, and successfully evaded, so when Officer Friendly notes you were swerving this time at 1AM, s/he’s going to be prepared for you to be drunk again, and that you might run.

          “Police state,” what the fuck.

    3. The DUI was a result of the illegal entrance for a misdemeanor. It is irrelevant.

  3. O mesmo acontece no Brasil, ou até pior!

  4. It looks like Coney Barrett and Gorsuch are really the swing judges re the core issue here. Thomas, Kavanaugh, Roberts, Alito all concurred while dissenting about whether ‘hot pursuit’ itself is a valid enough exigent circumstance to need a warrant or not.

  5. “‘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,'”

    Given that liberty no longer exists in the USA, this seem to be the ramblings of a senile old man.

    1. yeah, what was he Pratting on about?

    2. He was Biden’s roommate in law school.

    3. Probably owned slaves too. Or at least knew someone who did.

  6. This article seems to overstate the breadth and significance of the decision. The only issue was whether a categorical 4th amendment “hot pursuit” justifies warrantless entry when the fleeing suspect has committed only a misdemeanor. The holding was that the exception CAN apply when the suspect is a fleeing from arrest for a misdemeanor, but on a case-by-case basis, not a broad categorical one.

    The facts of this case probably would have supported the case-by-case exception as laid out in the opinion. The majority recognized that some misdemeanors are fairly serious, and that a need to prevent escape or preserve evidence of the offense can provide the exigency that justifies entry without a warrant. The majority stated that even the case-by-case “approach will in many, if not most, cases allow a warrantless home entry.”

    The state had prevailed in the court below, however, by arguing that hot pursuit of a fleeing suspect was always justified, regardless of the severity of the offense suspected. Evidently recognizing that it was arguing for an exception that could apply to evading arrest for overdue library books, the state abandoned that argument before the Supreme Court. So the Court had to appoint an amicus to make the argument it would reject.

    For what it’s worth, therefore, readers of this article should not conclude that making a run for the garage is a sure-fire-way to evade a DUI.

    1. It seems like the officer didn’t even have probable cause to suspect a misdemeanor. All he had observed before entering Lange’s home was that he was hoking his horn and playing loud music. The sobriety test was only administered after the officer entered Lange’s home and smelled alcohol on his breath

      1. He doesn’t need PC of a committed misdemeanor to make a traffic stop. Reasonable articulable suspicion counts. Which the cop had here.

        Running from the attempted traffic stop makes the conduct a misdemeanor. And probable cause of it: the cop is watching the suspect do it. Not for DUI (though at that hour, that’s what the cop was hoping the stop would result in), but for whatever CA calls evading a police officer trying to make a lawful traffic stop.

        Duane upthread is right, as you’ll see if you click on the cert petition link I posted. CA wanted to vacate the conviction—which in other contexts, would’ve made the Supreme Court case moot, I’d have thought—and the Supreme Court basically said, ‘Not so fast. We still want to have our say.’

        What facts would make a future DUI suspect distinguishable from Lange, such that the future suspect couldn’t also be shielded under this holding?

        1. ‘Not so fast. We still want to have our say.’

          Wish they would do this with some of the 2A cases that keep getting dropped after NY, etc. change their laws being challenged.

          Or maybe I don’t.

        2. He was not a DUI suspect when the cop intruded without a warrant.

          1. OK, he was evading a cop making a lawful traffic stop. Still a misdemeanor. Feel better?

        3. “[A] California Highway Patrol officer observed Arthur Gregory Lange repeatedly honking his horn and playing his car stereo at a loud volume, both of which are traffic infractions at worst.”

          Are traffic infractions considered misdemeanors? I’m thinking this might be where some of the confusion is coming from.

          So, he committed those infractions, (notionally) missed seeing the cop turn on his lights and pulled into his garage and tried to shut the door, which was then the misdemeanor of evading the police, and was then DUI tested. I’m not speculating at this point as to whether he actually didn’t see the cop’s lights or not, although it seems improbable since those things will usually light up the whole neighborhood at night.

          I dunno. I’m so weary of the damage the 4th Amendment has taken that I’m tempted to just celebrate any sort of win there even if it’s crappy.

          1. There can be no doubt Lange lied his ass off about not seeing the lights.
            Looks like the SC just condoned lying in court.
            By the way, is it that easy to get a warrant?
            For an infraction?
            I doubt one would easily be obtained, even for evading a legal traffic stop.
            Notably absent in this reporting was what time of day this happened.
            If it was after business hours, are there judges just waiting around, to issue warrants, within the time-frame of the alcohol remaining in the bloodstream, for honking one’s horn and playing music loudly?

            1. Sounds more like the SCOTUS is saying “don’t abuse your power piggies!” Seriously, the guy honked his horn and played some super loud techno or whatever. Who gives a shit? Once he was in his garage he was no longer a threat. Leave the guy alone.

  7. From the headline, I thought asset forfeiture had been eliminated.
    Oh, well, maybe next year.

    1. So, email, phone and text surveillance are still good?

  8. Chief Justice John Roberts, joined by Justice Samuel Alito, denounced the majority’s reasoning as “absurd and dangerous,” “hopelessly indeterminate,” and likely to impede necessary police work.

    What does he mean by “necessary police work”? Collecting revenue? What is so “dangerous” about impeding that?

    1. You know what else impedes necessary police work? Having pockets where you can put shit in them and the cops can’t see it. In fact, having clothes at all can give you a place to hide shit from the cops, and we’re probably going to have to do something about that dangerous butt crack you’re carrying around.

      If a suspected misdemeanor counts as exigent circumstances, well we all know cops have something wrong with their noses where they think they’re smelling marijuana all the goddamn time on every single person they meet, even from a distance of 100 feet when the guy’s in a car going the other way with the windows rolled up and he’s only got a roach in the glove box that’s been there for 3 years.

    2. They’ve already ruled that keeping drunk drivers off the road is necessary enough that it is OK to stop every car on a road, on the off chance that one of the drivers might be “over the limit”.
      Next day reports of these intrusions into free travel note that hundreds are stopped for very few “successful” results, but the SC allows that.
      Letting this guy off, because he managed to get home, undetected, seems incongruous with those past intrusions into the rights of non-drunk drivers.

      1. Maybe the Supreme Court is acquiring an appreciation for liberty. I’m down with that.

  9. “‘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,'” Kagan wrote, quoting from a venerable British common law judgment. “That was the idea behind the Fourth Amendment.”

    Kagan: originalist.

    1. There is hope!!!

    2. Sounds like Arthur Lange had a Kagan his system before taking that breathalyzer.

  10. For a misdemeanor? I’m surprised the appeals court ruled that lawful to begin with. It’s absurd on the face.

  11. Hey, one day out of the last 2,000. I guess it’s better than zero.

  12. See, what you need to do in this circumstance is get out of your car and immediately start chugging a bottle of vodka. Then they can’t prove that you were drunk while you were driving.

  13. I guess liberal concerns were wrong in this case. All 3 Trump picks sided with the “liberal” justices on this case and went against “conservatives” Alito and Thomas.

    1. On the “liberal/conservative” scale, the “center” of the members of the “legal” profession is far towards the “liberal” side of the average American.
      Even “conservative” judges come down, heavily on the left of the spectrum.
      That’s how this country is headed down the shithole.

    2. Review Melvin Belli’s defense of his drunk-driving case…. interesting.

  14. Since their paychecks are signed by the same guy who signs the cops’ paychecks, a warrant is an awfully low bar.

  15. A Good Day for the Fourth Amendment

    OMG. This is like a battered wife sitting there with a black eye and her arm in a sling telling you, with a straight face, “He was really nice to me today! I know he’s sorry for what he did to me. He’s changed!”

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