Courts across the country have reached different answers to the question at issue in the case. Five state supreme courts have held a misdemeanor pursuit justifies a warrantless home entry, according to Lange’s lawyers, while three state courts and two federal appeals courts say the issue must be reviewed on a case-by-case basis.
“The courts are all over the place on this,” said Larry James, general counsel for the National Fraternal Order of Police, who filed a brief in the case supporting Weikert. “The question is, should the U.S. Supreme Court lay down the law of the land.”
Fourth Amendment questions have divided the Supreme Court in unusual ways, with liberal Justice Stephen Breyer occasionally joining conservatives and the late Justice Antonin Scalia sometimes siding with liberals. Justice Neil Gorsuch last fall called a ruling in Vermont allowing game wardens to peer inside a garage without a warrant an “error.”
Gorsuch, appointed by President Donald Trump, was joined by Justices Sonia Sotomayor and Elena Kagan, both appointed by President Barack Obama.
Lange’s case comes to the court at a moment of tension between police and communities of color after the police killing last year of George Floyd, a 46-year-old Black man. The incident, and others like it, prompted nationwide protests and some riots over the summer, forcing a national discussion about racism and police use of force.
“It wouldn’t open the door, it would open the floodgates to police entry into a home,” said Alexandra Natapoff, a Harvard Law professor who has written widely on the proliferation of misdemeanor crimes. “It would seem to be exactly the backward response to everything we have learned from George Floyd and Black Lives Matter.”
On the other hand, some advocates say allowing a suspect to dart into a home to avoid possible arrest creates another set of problems for police. Officers can’t always immediately determine whether a suspected drunk driver may be committing a felony or a misdemeanor, for instance, a distinction that can turn on factors such as blood-alcohol level, prior convictions or whether a child is in the car.
If Weikert had waited to obtain a warrant, could Lange have claimed he started drinking only after he got home? Or could he have waited out police long enough to sober up?
“Time degrades evidence,” said Alex Otte, president of Mothers Against Drunk Driving, which advocates for a categorical exception to the warrant requirement in cases where police are in pursuit of a misdemeanor suspect. “Even if it is a true misdemeanor, they should still be forced to face the consequences of their potential deadly choice.”
Though the California state appeals court ruling created the broad warrant exception for misdemeanor pursuit, the state of California itself isn’t defending that power for police. Attorneys for California argue that Weikert’s actions represented a good faith effort to adhere to current law in the state.
Instead, the Supreme Court appointed an attorney to defend the misdemeanor exception.
“There is nothing reasonable about allowing an offender to defeat a lawful public arrest by fleeing into a home,” the attorney, Amanda Rice, told the court. “That is true regardless of whether the underlying crime happens to be classified as a felony or a misdemeanor.”
About the Author
Scott J. Limmer is a New York criminal attorney practicing primarily in Nassau, Suffolk, and Queens counties. He also represents students nationwide when they are charged with violations of their school’s code of conduct.