California Case Offers Puzzler on Fourth Amendment Rights


Richard Shugrue
By 
Richard Shugrue
The Daily Record

There are more exceptions to the Fourth Amendment’s warrant requirement than you can count on the fingers of both hands. There are consent searches and open fields searches, there are automobile searches and plain view ones, and there are hot pursuit searches.

You often think of a hot pursuit when a cop chases a gun-toting robber from a bank and follows him directly into his hideout. That’s an easy one.

But last week, the Supreme Court heard arguments in a case from California involving a home entry by an officer for conduct which amounted to a misdemeanor under local law. The perp was driving, honking his horn and playing loud music and had an interior light on. The “lights on” conduct is a misdemeanor under local law. He drove onto his driveway and into his garage. The cop got out of his car and stuck his foot under the closing garage door, triggering the electronic opener and allowing him into the home.

It turned out the defendant blew a .245 on the Breathalyzer, which is very inebriated for a California driver. His suppression motion failed. He had argued that an officer may not get the advantage of the hot pursuit doctrine allowing home entry when the offense is a mere misdemeanor.

A very active court heard arguments in Lange v. California (doc. 20-18) last Wednesday, with questions ranging from whether a broad rule should be fashioned when the states have very different definitions of “misdemeanor,” as to whether the officer in this case was really in hot pursuit.

Justice Alito suggested that this case, factually, did not have the elements usually justifying a warrantless entry, such as violence.

Justice Sotomayor turned to the issue of “exigent circumstances,” which may ordinarily justify an exception, and said they were not present here.

What if the court adopted a rule directing the police to determine the outcome on a “case by case” basis? Pity the officer on the scene of an encounter having to make a decision like that, which obviously was a puzzler for the court in this case, with the luxury of plenty of time!

Fourth Amendment cases are not necessarily ideologically divided, with the liberal jurists favoring defendants and conservatives the police. Justice Gorsuch noted last week that in the time of the Founders, there was no exception to the rule that an officer had to have a warrant to enter when the offense was a misdemeanor.

That shouldn’t be surprising for a disciple of the late Antonin Scalia, who was an unappreciated defender of the Fourth Amendment and believed deeply in the sanctity of a person’s home. See such Scalia opinions as U.S. v. Jones (2012) and Florida v. Jardines (2013).

If the newest justices, adhering to the doctrines of originalism and textualism, join with unabashed conservatives Thomas and Alito, the result may be a ruling that a “man’s home is his castle,” and a cop has to have a warrant to enter when the crime is minor.

A great refresher on the topic is David Gray, “Fourth Amendment Remedies as Rights: The Warrant Requirement” (2016).

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.

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