Officers have generally been able to continue their pursuit where an officer has probable cause to believe that a suspect has committed a crime and the officer is right on the suspect’s heels. In these cases the officer is not required to stop at the threshold and get a warrant before entering to make the apprehension. It should be noted that this issue is clear with respect to felonies but not clear when dealing with less serious crimes. [i]
Two cases from the United States Supreme Court appeared to have provided guidance to officers with respect to whether or not an entry would be proper, however, both cases involved the destruction of evidence in misdemeanor cases.
In Welch, officers who had responded to an accident scene developed probable cause to believe that a driver who had left his vehicle was intoxicated. Knowing that alcohol in a person’s blood system diminishes with the passage of time, officers made a warrantless entry into Welch’s house to arrest him and ultimately obtain evidence to prove his intoxication.
The United States Supreme Court held that the entry into Welch’s home to secure evidence for such a minor offense was unreasonable. The Court noted that a first offense drunk driving in Wisconsin was not even a criminal offense. Some commentators have speculated that warrantless entries to prevent the destruction of evidence in misdemeanor cases would also be unreasonable. The drunk driving charge in Welsh was not a misdemeanor and therefore this issue is unclear.
The confusion over Welsh was cleared up by the United States Supreme Court in Illinois v. McArthur, [ii] McArthurinvolved police officers being called to Chuck McArthur’s trailer to keep the peace while his estranged wife, Tera, removed some of her belongings. While at the scene, Tera informed officers that her husband had hidden some marijuana under the couch inside of his trailer when the police arrived at the scene. Chief Love knocked on the door of the trailer and informed Chuck what Tera had said. Chief Love asked McArthur for consent to search the trailer. Chuck promptly refused to grant consent. One of the officers proceeded with Tera McArthur to a judge in order to obtain a search warrant for the trailer.
Hearing that McArthur would destroy the contraband, Chief Love remained at the scene and would not allow McArthur back into the trailer unaccompanied while the warrant was being obtained. McArthur entered the trailer two or three times with an officer in order to make phone calls and get cigarettes. It took approximately two hours for the officers to return with the search warrant. The officers executed the search warrant, seized the marijuana and arrested Chuck McArthur.
At trial McArthur alleged that the police prohibition for his entry into the trailer amounted to a seizure of the trailer without a warrant and thus, the marijuana should be suppressed as the fruit of an unlawful seizure. The Illinois Appellate court agreed with McArthur’s position and suppressed the evidence.
In overturning the decision of the Illinois courts, the United States Supreme Court held that the “temporary seizure” of McArthur’s dwelling was reasonable. The Court noted that the police had probable cause to believe that the trailer contained contraband. It was reasonable for the police officers to believe that McArthur would destroy the evidence if the police left to obtain a warrant. The Court pointed out that the police “…made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. They neither searched the trailer nor arrested McArthur before obtaining the warrant. Rather, they imposed a significantly less restrictive restraint, preventing McArthur only from entering the trailer unaccompanied. They left his home and his belongings intact-until a neutral magistrate, finding probable cause, issued a warrant;…the police imposed the restraint for a limited period of time, namely two hours. As far as the record reveals, this time period was no longer than necessary for the police, acting with diligence, to obtain the warrant.
McArthur also argued that the misdemeanor possession of marijuana was so minor that the Court’s ruling in Welch v. Wisconsin should bar the actions of the police. The Court clarified their decision in Welch by distinguishing these two cases. The Court pointed out that Welch dealt with a “nonjailable” offense while the possession of marijuana in McArthur was a “jailable” offense. Thus, when dealing with issues of exigent entries or temporary seizures, officers should consider whether the offense at issue is jailable or nonjailable as part of the reasonableness analysis.
The United States Supreme Court was faced with the legality of pursuing a isdemeanor suspect in a lawsuit arising out of an officer’s entry into a person’s yard while in foot pursuit of a suspect. [iii]
Around one o’clock in the morning on May 27, 2008, Officer Mike Stanton and his partner responded to a call about an “unknown disturbance” involving a person with a baseball bat in La Mesa, California. Stanton was familiar with the neighborhood, known for “violence associated with the area gangs.” The officers — wearing uniforms and driving a marked police vehicle — approached the place where the disturbance had been reported and noticed three men walking in the street. Upon seeing the police car, two of the men turned into a nearby apartment complex. The third, Nicholas Patrick, crossed the street about 25 yards in front of Stanton’s car and ran or quickly walked toward a residence. Nothing in the record shows that Stanton knew at the time whether that residence belonged to Patrick or someone else; in fact, it belonged to Drendolyn Sims.
Stanton did not see Patrick with a baseball bat, but he considered Patrick’s behavior suspicious and decided to detain him in order to investigate. Stanton exited his patrol car, called out “police,” and ordered Patrick to stop in a voice loud enough for all in the area to hear. But Patrick did not stop. Instead, he “looked directly at Stanton, ignored his lawful orders, and quickly went through [the] front gate” of a fence enclosing Sims’ front yard. When the gate closed behind Patrick, the fence — which was more than six feet tall and made of wood—blocked Stanton’s view of the yard. Stanton believed that Patrick had committed a jailable misdemeanor under California Penal Code §148 by disobeying his order to stop; Stanton also “fear[ed] for [his] safety.” He accordingly made the “split-second decision” to kick open the gate in pursuit of Patrick. Unfortunately, and unbeknownst to Stanton, Sims herself was standing behind the gate when it flew open. The swinging gate struck Sims, cutting her forehead and injuring her shoulder. [cites omitted].
Sims, who was not part of the foot chase, filed suit against Officer Stanton for unreasonably searching her home in violation of the Fourth Amendment.
It should be noted that this case went to the United States Supreme Court for consideration as to whether Officer Stanton was entitled to “Summary Judgment” or “Qualified Immunity.” Officers are entitled to be dismissed from a lawsuit based on summary judgment when the judge reviews the officer’s actions and determines that even when that action is viewed based on the facts developed by the person suing the officer, the officer’s action was consistent with the constitution. An officer is entitled to qualified immunity even if the officer’s action are unconstitutional but the law was not clearly established at the time the officer acted such that a reasonable officer would be put on fair notice that the actions were unconstitutional.
Thus, two questions arise in this case. First, is it consistent with the Fourth Amendment for an officer to enter a home while in hot pursuit and on the heels of a fleeing misdemeanor subject? Second, was the law clearly established that pursuing a fleeing misdemeanant subject into a residential property violated the constitution such that a reasonable officer had fair notice that such action was a violation of the constitution.
In legal analysis, courts have authority to ignore the first question and decide whether the action was unconstitutional and proceed directly to the second question with respect to whether the law was clearly established at the time the officer acted.
The United States Supreme Court opted in this case to proceed directly to the second question and determined that the law was not clearly established either by its own precedent, or in the 9th Circuit, or in the State of California.
In explaining qualified immunity the Court asserted:
The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149 (2011) (slip op., at 12) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)). “We do not require a case directly on point” before concluding that the law is clearly established, “but existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S., at ___, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149 (slip op., at 9).
The Court went on to cited the disagreement amongst courts as to whether an entry in pursuit of a fleeing misdemeanant was constitutional.
There is no suggestion in this case that Officer Stanton knowingly violated the Constitution; the question is whether, in light of precedent existing at the time, he was “plainly incompetent” in entering Sims’ yard to pursue the fleeing Patrick. Id., at ___, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (slip op., at 12). The Ninth Circuit concluded that he was. It did so despite the fact that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. Compare, e.g.,Middletown v. Flinchum, 95 Ohio St. 3d 43, 45, 2002 Ohio 1625, 765 N. E. 2d 330, 332 (2002) (“We . . . hold today that when officers, having identified themselves, are in hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter without a warrant, regardless of whether the offense for which the suspect is being arrested is a misdemeanor”), and State v. Ricci, 144 N. H. 241, 244, 739 A. 2d 404, 407 (1999) (“the facts of this case demonstrate that the police had probable cause to arrest the defendant for the misdemeanor offense of disobeying a police officer” where the defendant had fled into his home with police officers in hot pursuit), with Mascorro v. Billings, 656 F. 3d 1198, 1207 (CA10 2011) (“The warrantless entry based on hot pursuit was not justified” where “[t]he intended arrest was for a traffic misdemeanor committed by a minor, with whom the officer was well acquainted, who had fled into his family home from which there was only one exit” (footnote omitted)), and Butler v. State, 309 Ark. 211, 217, 829 S. W. 2d 412, 415 (1992) (“even though Officer Sudduth might have been under the impression that he was in continuous pursuit of Butler for what he considered to be the crime of disorderly conduct, . . . since the crime is a minor offense, under these circumstances there is no exigent circumstance that would allow Officer Sudduth’s warrantless entry into Butler’s home for what is concededly, at most, a petty disturbance”).
Other courts have concluded that police officers are at least entitled to qualified immunity in these circumstances because the constitutional violation is not clearly established. E.g., Grenier v. City of Champlin, 27 F. 3d 1346, 1354 (CA8 1994) (“Putting firmly to one side the merits of whether the home arrests were constitutional, we cannot say that only a plainly incompetent policeman could have thought them permissible at the time,” where officers entered a home without a warrant in hot pursuit of misdemeanor suspects who had defied the officers’ order to remain outside (internal quotation marks and citation omitted)).
The Court noted that in United States v. Santana, they had approved the hot pursuit of a fleeing felony suspect into a home and went further to assert that nothing in Santana limited such a pursuit to a felony.
The Court concluded:
To summarize the law at the time Stanton made his split-second decision to enter Sims’ yard: Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.
We do not express any view on whether Officer Stanton’s entry into Sims’ yard in pursuit of Patrick was constitutional. But whether or not the constitutional rule applied by the court below was correct, it was not “beyond debate.” al-Kidd, supra, at ___, 131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149 (slip op., at 9). Stanton may have been mistaken in believing his actions were justified, but he was not “plainly incompetent.”
The Court ruled in favor of the officer and granted qualified immunity but in doing so expressly refused to decide whether or not an officer can constitutionally enter someone’s residential property in hot pursuit of a fleeing misdemeanant. The Court made no reference to the McArthur case perhaps because like Welsh, which was cited, were not hot pursuit cases but instead were cases where officers were justifying exigent entry based on the destruction of evidence.
Officers should be aware that, at least from the perspective of the United States Supreme Court, the law is unclear as to whether an officer, on the heels of a misdemeanor suspect, can enter a person’s home or curtilage based on hot pursuit exigency.
[i] Welch v. Wisconsin, 466 U.S. 740 (1984).
[ii] Illinois v. McArthur, 531 U.S. 326 (2001).
[iii] Stanton v. Sims, Stanton v. Sims, 2013 U.S. LEXIS 7773 (U.S. Nov. 4, 2013)