Lang v. California: What Difference Does it Make?
Posted by Edmund R. Folsom, Esq., June 26, 2021.
Lang v. California, 594 U.S. __ (2021), decided June 23, 2021, tells us that police are not automatically justified in entering a home without a warrant simply because they are in hot pursuit of a person fleeing them, if the crime they are chasing the person for is a misdemeanor. This is different than a case of “hot pursuit” involving a felony, where police are automatically justified making warrantless entry to a home. In Lang, the California Courts ruled that the “hot pursuit” rule applies to misdemeanors as well as felonies, categorically justifying warrantless entry to the home of a fleeing misdemeanor suspect. The U.S. Supreme Court disagreed.
It all started when Lang drove past a California highway patrol officer in Sonoma, California, one day, with his windows down, music blaring, repeatedly honking his horn. The officer followed Lang and before long turned on his cruiser’s lights, signaling Lang to pull over. But instead of pulling over, Lang continued for 100 or so feet to his home and pulled into a garage attached to his house. The officer followed him into the garage and then, suspecting that Lang might have been driving under the influence, put him through field sobriety tests before arresting him and causing a blood sample to be taken.
Lang was ultimately charged with driving under the influence and failure to comply with a police signal; both misdemeanors. He moved to suppress all evidence the officer gathered against him after entering his garage. The trial court denied the motion, ruling that the categorical exception to the search warrant requirement for hot pursuit of a fleeing suspect applies to misdemeanor as well as felony pursuits. A California appellate court upheld the ruling, the California Supreme Court declined review, and the case ended up in the US. Supreme Court.*
The U.S. Supreme Court ruled 9-0 to reverse the ruling below and remand the case for further findings. All agreed that the courts below applied the wrong test to determine the lawfulness of the warrantless entry. Seven of the nine justices agreed that there is no general, categorical “hot pursuit” exception to the search warrant requirement that justified the warrantless entry of Lang’s garage while pursuing him for a misdemeanor. They also agreed, when it comes to hot pursuit of a misdemeanor suspect, some well-recognized exception to the requirement of a warrant must be present. The most likely candidate is the exigent circumstances exception, but hot pursuit of a fleeing misdemeanor suspect does not, in and of itself, constitute an exigent circumstance justifying the warrantless entry of a home.
The Supreme Court remanded the case to the California Courts for a further determination whether exigent circumstances might have existed. Justices Roberts and Alito would have declared that hot pursuit of a misdemeanor suspect is an exigent circumstance, in and of itself, justifying a warrantless entry. In their concurrence, they suggested that, under the standard they endorsed, the proper inquiry on remand would be whether the circumstance constituted hot pursuit of the kind that fits the hot pursuit exception (explaining that an exception to the hot pursuit exception might apply if the officer’s manner of entry was unreasonable or if the facts somehow otherwise made Lang’s case “the unusual case”).
What Does Lang Mean for a Fleeing Misdemeanor Suspect?
As a practical matter, what does Lang mean for a fleeing misdemeanor suspect? All nine Justices contemplate that exigent circumstances will exist to justify the warrantless entry of a residence in many cases involving the hot pursuit of a fleeing misdemeanor suspect — likely destruction of evidence, for instance. But the justices also contemplate that there are many other cases in which exigent circumstances will not exist, where California’s categorical rule would have allowed warrantless entry of a residence anyway. Let’s take a look at how things might work out in two hypothetical scenarios.
In the first, an Old Orchard Beach police officer sees a person drinking a can of beer on the beach about 50’ from a sign that says drinking alcohol on the beach is a criminal offense. The officer approaches and tells the person that drinking in that location is a crime, at which point the person drops the beer and takes off running to a nearby beach cottage, with the officer close behind. At the cottage, the person runs inside and slams the door. The officer, having just witnessed the commission of a Class E crime (public drinking) take place in his presence, barges into the cottage to make a warrantless arrest.
Once inside, the officer sees a bag of powder lying on a table, in plain view. The officer’s training and experience tell him the powder is probably a narcotic, so he seizes it, arrests the person and charges him with drinking in public. The powder is confirmed to be an ounce of fentanyl, leading to a drug trafficking charge. When the person moves to suppress the drugs found inside the cottage, it will be difficult for the State to show that exigent circumstances justified the warrantless entry to the cottage. The chase was to apprehend the person for drinking in public. Where was the urgent need to enter the premises immediately, without a warrant? Under the categorical, California rule, the officer’s warrantless entry would be categorically justified, but under the rule of Lang, the entry is very likely a Fourth Amendment violation.
In the second scenario, the same officer is walking the same stretch of beach when he sees the same person snorting lines of white powder off a book cover. The officer approaches and field-tests what remains of the white powder. It tests positive for cocaine, at which point the snorter takes off running toward the same beach cottage, with the officer close behind. Just as the snorter gets to the door, he turns toward the cop, pulls a small, folded piece of paper (of a type used to hold gram amounts of cocaine) from his pocket and hollers, “I’m going to flush this down the toilet, Pig!” The person runs inside and slams the door. The cop immediately follows him inside and arrests him. On a table next to the point of arrest is a baggie of white powder that turns out to be an ounce of fentanyl. The person is charged with possession of cocaine (Class D) and trafficking in fentanyl. When he moves to suppress the fentanyl gathered inside the cottage, the court is very likely to find that the officer’s entry was justified by exigent circumstances (likely destruction of evidence). In this scenario, the outcome of a motion to suppress will be identical to the outcome under the categorical, California rule – the court will find that the seized drugs are the unattenuated fruit of an unreasonable search.
From this, you see that the Supreme Court’s Lang rule protects against the warrantless police entry of a residence to enforce a relatively minor criminal statute, absent compelling circumstances that leave police with no time to secure a warrant. On the other hand, you see how the rule allows police to pursue a fleeing suspect into a residence without a warrant when there are compelling circumstances that leave no time to secure a warrant. But for a Defendant facing a criminal charge and attempting to suppress evidence that the police discovered after making a warrantless entry, what difference does it make? Justice Thomas tells us it might make no difference at all.
Why Might it Make no Difference at all?
As a practical matter, the thing that makes the difference to a criminal defendant is not whether the court finds that the search or seizure that uncovered the evidence against him was constitutionally unreasonable, but what the court does about it when it makes that finding. If the court applies the exclusionary rule and prevents the state from introducing the evidence at trial, the unreasonableness of the search or seizure is a big deal. But if the court does not apply the exclusionary rule, it means nothing to the defendant to have the court declare the search or seizure unreasonable. In his separate concurrence, Justice Thomas, joined by Justice Kavanaugh, tells us he thinks the exclusionary rule simply does not apply to evidence discovered by a police officer while in hot pursuit of a fleeing misdemeanor suspect, Fourth Amendment violation notwithstanding.
The Supreme Court views the exclusionary rule as a kind of necessary evil — necessary because it’s the only effective way for courts to deter police from violating the Fourth Amendment, but evil because the direct beneficiary is always a criminal defendant who does not have clean hands (after all, the evidence wouldn’t exist to be suppressed if the person had clean hands). In common parlance, the exclusionary rule lets the guilty go free.
Because the exclusionary rule has this necessary evil aspect, the Supreme Court does not apply it to all Fourth Amendment violations. Again, the point of exclusion is not to remedy a personal wrong done to the individual whose Fourth Amendment rights were violated – the point is entirely to deter future police misconduct. The theory is, when police see evidence suppressed because of an unreasonable search or seizure they will try to avoid that result and do things right in the future, to ensure that whatever evidence they gather is useable. In some instances, the cost of the deterrence outweighs the benefits. Therefore, the Court conducts a balancing test that weighs the benefit of excluding evidence against the costs. In this way, the Court has created certain categories of cases where the exclusionary rule simply does not apply. For instance, exclusion does not apply when police act in reasonable reliance or in “good faith” on a magistrate’s determination of probable cause for a search warrant. Exclusion does not apply to evidence seized in violation of the “knock and announce rule” or in other circumstances of “attenuation.”
On the benefits side of the analysis, the Supreme Court has concluded that exclusion is more likely to deter flagrant police misconduct than misconduct that stems from understandable, honest mistakes. On the cost side, the Court is reluctant to exclude evidence if doing so would put the defendant in a better position than the defendant would have been in if the constitutional violation hadn’t happened in the first place (the rationale underlying the “inevitable discovery” rule). And, the Court considers it very costly to apply the exclusionary rule when doing so will likely encourage bad citizen behavior.
In the reckoning of Justices Thomas and Kavanaugh, the costs outweigh the benefits when it comes to excluding evidence resulting from a Fourth Amendment violation committed by a police officer in hot pursuit of a fleeing misdemeanor suspect. Applying the exclusionary rule there would encourage people to flee police, which Thomas and Kavanaugh take as imposing a very high cost.
Watch out for this. We will probably see a case in the U.S. Supreme Court before long deciding whether the exclusionary rule applies in these circumstances. If the answer is “no,” all that a fleeing misdemeanor suspect can expect to take from a finding that a fourth amendment violation occurred is whatever a jury is willing to award for the violation in a civil suit for damages. How much do you suppose that will be worth to the person in the cottage with the fentanyl?
*In a procedural quirk, the State of California abandoned defense of the categorical rule applied by its courts, so the U.S. Supreme Court appointed amicus curiae to defend the position in briefs and argument before them.
Disclaimer: The above is not legal advice and is not to be taken as legal advice. It is for informational purposes only. The reader does not have an attorney/client relationship with the author by virtue of having read the above.