Lange v. California ( 2021 )

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(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LANGE v. CALIFORNIA
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA,
FIRST APPELLATE DISTRICT
No. 20–18. Argued February 24, 2021—Decided June 23, 2021
This case arises from a police officer’s warrantless entry into petitioner
Arthur Lange’s garage. Lange drove by a California highway patrol
officer while playing loud music and honking his horn. The officer be-
gan to follow Lange and soon after turned on his overhead lights to
signal that Lange should pull over. Rather than stopping, Lange drove
a short distance to his driveway and entered his attached garage. The
officer followed Lange into the garage. He questioned Lange and, after
observing signs of intoxication, put him through field sobriety tests. A
later blood test showed that Lange’s blood-alcohol content was three
times the legal limit.
The State charged Lange with the misdemeanor of driving under the
influence. Lange moved to suppress the evidence obtained after the
officer entered his garage, arguing that the warrantless entry violated
the Fourth Amendment. The Superior Court denied Lange’s motion,
and its appellate division affirmed. The California Court of Appeal
also affirmed. It concluded that Lange’s failure to pull over when the
officer flashed his lights created probable cause to arrest Lange for the
misdemeanor of failing to comply with a police signal. And it stated
that Lange could not defeat an arrest begun in a public place by re-
treating into his home. The pursuit of a suspected misdemeanant, the
court held, is always permissible under the exigent-circumstances ex-
ception to the warrant requirement. The California Supreme Court
denied review.
Held: Under the Fourth Amendment, pursuit of a fleeing misdemeanor
suspect does not always—that is, categorically—justify a warrantless
entry into a home. Pp. 3–16.
(a) The Court’s Fourth Amendment precedents counsel in favor of a
2 LANGE v. CALIFORNIA
Syllabus
case-by-case assessment of exigency when deciding whether a sus-
pected misdemeanant’s flight justifies a warrantless home entry. The
Fourth Amendment ordinarily requires that a law enforcement officer
obtain a judicial warrant before entering a home without permission.
Riley v. California, 573 U. S. 373, 382. But an officer may make a
warrantless entry when “the exigencies of the situation,” considered in
a case-specific way, create “a compelling need for official action and no
time to secure a warrant.” Kentucky v. King, 563 U. S. 452, 460; Mis-
souri v. McNeely, 569 U. S. 141, 149. The Court has found that such
exigencies may exist when an officer must act to prevent imminent
injury, the destruction of evidence, or a suspect’s escape.
The amicus contends that a suspect’s flight always supplies the exi-
gency needed to justify a warrantless home entry and that the Court
endorsed such a categorical approach in United States v. Santana, 427
U. S. 38. The Court disagrees. In upholding a warrantless entry made
during a “hot pursuit” of a felony suspect, the Court stated that San-
tana’s “act of retreating into her house” could “not defeat an arrest”
that had “been set in motion in a public place.” Id., at 42–43. Even
assuming that Santana treated fleeing-felon cases categorically, that
statement still does not establish a flat rule permitting warrant-
less home entry whenever a police officer pursues a fleeing misde-
meanant. Santana did not resolve the issue of misdemeanor pursuit;
as the Court noted in a later case, “the law regarding warrantless en-
try in hot pursuit of a fleeing misdemeanant is not clearly es-
tablished” one way or the other. Stanton v. Sims, 571 U. S. 3, 8, 10.
Misdemeanors run the gamut of seriousness, and they may be mi-
nor. States tend to apply the misdemeanor label to less violent and
less dangerous crimes. The Court has held that when a minor offense
(and no flight) is involved, police officers do not usually face the kind
of emergency that can justify a warrantless home entry. See Welsh v.
Wisconsin, 466 U. S. 740, 742–743. Add a suspect’s flight and the cal-
culus changes—but not enough to justify a categorical rule. In many
cases, flight creates a need for police to act swiftly. But no evidence
suggests that every case of misdemeanor flight creates such a need.
The Court’s Fourth Amendment precedents thus point toward as-
sessing case by case the exigencies arising from misdemeanants’ flight.
When the totality of circumstances shows an emergency—a need to act
before it is possible to get a warrant—the police may act without wait-
ing. Those circumstances include the flight itself. But pursuit of a
misdemeanant does not trigger a categorical rule allowing a warrant-
less home entry. Pp. 3–12.
(b) The common law in place at the Constitution’s founding similarly
does not support a categorical rule allowing warrantless home entry
whenever a misdemeanant flees. Like the Court’s modern precedents,
Cite as: 594 U. S. ____ (2021) 3
Syllabus
the common law afforded the home strong protection from government
intrusion and it generally required a warrant before a government of-
ficial could enter the home. There was an oft-discussed exception: An
officer, according to the common-law treatises, could enter a house to
pursue a felon. But in the misdemeanor context, officers had more
limited authority to intrude on a fleeing suspect’s home. The commen-
tators generally agreed that the authority turned on the circum-
stances; none suggested a rule authorizing warrantless entry in every
misdemeanor-pursuit case. In short, the common law did not have—
and does not support—a categorical rule allowing warrantless home
entry when a suspected misdemeanant flees. Pp. 12–16.
Vacated and remanded.
KAGAN, J., delivered the opinion of the Court, in which BREYER, SO-
TOMAYOR, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and in which
THOMAS, J., joined as to all but Part II–A. KAVANAUGH, J., filed a concur-
ring opinion. THOMAS, J., filed an opinion concurring in part and concur-
ring in the judgment, in which KAVANAUGH, J., joined as to Part II. ROB-
ERTS, C. J., filed an opinion concurring in the judgment, in which ALITO,
J., joined.
Cite as: 594 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–18
_________________
ARTHUR GREGORY LANGE, PETITIONER v.
CALIFORNIA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT
[June 23, 2021]
JUSTICE KAGAN delivered the opinion of the Court.
The Fourth Amendment ordinarily requires that police
officers get a warrant before entering a home without per-
mission. But an officer may make a warrantless entry
when “the exigencies of the situation” create a compelling
law enforcement need. Kentucky v. King, 563 U. S. 452, 460
(2011). The question presented here is whether the pursuit
of a fleeing misdemeanor suspect always—or more legally
put, categorically—qualifies as an exigent circumstance.
We hold it does not. A great many misdemeanor pursuits
involve exigencies allowing warrantless entry. But
whether a given one does so turns on the particular facts of
the case.
I
This case began when petitioner Arthur Lange drove past
a California highway patrol officer in Sonoma. Lange, it is
fair to say, was asking for attention: He was listening to
loud music with his windows down and repeatedly honking
his horn. The officer began to tail Lange, and soon after-
ward turned on his overhead lights to signal that Lange
should pull over. By that time, though, Lange was only
2 LANGE v. CALIFORNIA
Opinion of the Court
about a hundred feet (some four-seconds drive) from his
home. Rather than stopping, Lange continued to his drive-
way and entered his attached garage. The officer followed
Lange in and began questioning him. Observing signs of
intoxication, the officer put Lange through field sobriety
tests. Lange did not do well, and a later blood test showed
that his blood-alcohol content was more than three times
the legal limit.
The State charged Lange with the misdemeanor of driv-
ing under the influence of alcohol, plus a (lower-level) noise
infraction. Lange moved to suppress all evidence obtained
after the officer entered his garage, arguing that the war-
rantless entry had violated the Fourth Amendment. The
State contested the motion. It contended that the officer
had probable cause to arrest Lange for the misdemeanor of
failing to comply with a police signal. See, e.g., Cal. Veh.
Code Ann. §2800(a) (West 2015) (making it a misdemeanor
to “willfully fail or refuse to comply with a lawful order, sig-
nal, or direction of a peace officer”). And it argued that the
pursuit of a suspected misdemeanant always qualifies as an
exigent circumstance authorizing a warrantless home en-
try. The Superior Court denied Lange’s motion, and its ap-
pellate division affirmed.
The California Court of Appeal also affirmed, accepting
the State’s argument in full. 2019 WL 5654385, *1 (2019).
In the court’s view, Lange’s “fail[ure] to immediately pull
over” when the officer flashed his lights created probable
cause to arrest him for a misdemeanor. Id., at *7. And a
misdemeanor suspect, the court stated, could “not defeat an
arrest which has been set in motion in a public place” by
“retreat[ing] into” a house or other “private place.” See id.,
at *6–*8 (internal quotation marks omitted). Rather, an
“officer’s ‘hot pursuit’ into the house to prevent the suspect
from frustrating the arrest” is always permissible under the
exigent-circumstances “exception to the warrant require-
ment.” Id., at *8 (some internal quotation marks omitted).
Cite as: 594 U. S. ____ (2021) 3
Opinion of the Court
That flat rule resolved the matter: “Because the officer was
in hot pursuit” of a misdemeanor suspect, “the officer’s war-
rantless entry into [the suspect’s] driveway and garage
[was] lawful.” Id., at *9. The California Supreme Court
denied review.
Courts are divided over whether the Fourth Amendment
always permits an officer to enter a home without a warrant
in pursuit of a fleeing misdemeanor suspect. Some courts
have adopted such a categorical rule, while others have re-
quired a case-specific showing of exigency.1 We granted cer-
tiorari, 592 U. S. ___ (2020), to resolve the conflict. Because
California abandoned its defense of the categorical rule ap-
plied below in its response to Lange’s petition, we appointed
Amanda Rice as amicus curiae to defend the Court of Ap-
peal’s judgment. She has ably discharged her responsibili-
ties.
II
The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures, shall not
be violated.” As that text makes clear, “the ultimate touch-
stone of the Fourth Amendment is ‘reasonableness.’ ”
Brigham City v. Stuart, 547 U. S. 398, 403 (2006). That
——————
1 Compare, e.g., 2019 WL 5654385, *7–*8 (case below) (applying a cat-
egorical rule); Bismarck v. Brekhus, 2018 ND 84, ¶ 27, 908 N. W. 2d 715,
719–720 (same); Commonwealth v. Jewett, 471 Mass. 624, 634–635, 31
N. E. 3d 1079, 1089 (2015) (same); People v. Wear, 229 Ill. 2d 545, 568,
571, 893 N. E. 2d 631, 644–646 (2008) (same); Middletown v. Flinchum,
95 Ohio St. 3d 43, 44–45, 765 N. E. 2d 330, 332 (2002) (same); State v.
Ricci, 144 N. H. 241, 244–245, 739 A. 2d 404, 407–408 (1999) (same),
with, e.g., State v. Markus, 211 So. 3d 894, 906–907 (Fla. 2017) (requiring
a case-specific showing); Mascorro v. Billings, 656 F. 3d 1198, 1207
(CA10 2011) (same); Butler v. State, 309 Ark. 211, 216–217, 829 S. W. 2d
412, 415 (1992) (same); State v. Bolte, 115 N. J. 579, 597–598, 560 A. 2d
644, 654–655 (1989) (same); see also Stanton v. Sims, 571 U. S. 3, 6–7
(2013) (per curiam) (noting the split).
4 LANGE v. CALIFORNIA
Opinion of the Court
standard “generally requires the obtaining of a judicial war-
rant” before a law enforcement officer can enter a home
without permission. Riley v. California, 573 U. S. 373, 382
(2014) (internal quotation marks omitted). But not always:
The “warrant requirement is subject to certain exceptions.”
Brigham City, 547 U. S., at 403.
One important exception is for exigent circumstances. It
applies when “the exigencies of the situation make the
needs of law enforcement so compelling that [a] warrantless
search is objectively reasonable.” King, 563 U. S., at 460(internal quotation marks omitted). The exception enables
law enforcement officers to handle “emergenc[ies]”—situa-
tions presenting a “compelling need for official action and
no time to secure a warrant.” Riley, 573 U. S., at 402; Mis-
souri v. McNeely, 569 U. S. 141, 149 (2013). Over the years,
this Court has identified several such exigencies. An of-
ficer, for example, may “enter a home without a warrant to
render emergency assistance to an injured occupant[,] to
protect an occupant from imminent injury,” or to ensure his
own safety. Brigham City, 547 U. S., at 403; Riley, 573
U. S., at 388. So too, the police may make a warrantless
entry to “prevent the imminent destruction of evidence” or
to “prevent a suspect’s escape.” Brigham City, 547 U. S., at
403; Minnesota v. Olson, 495 U. S. 91, 100 (1990) (internal
quotation marks omitted). In those circumstances, the de-
lay required to obtain a warrant would bring about “some
real immediate and serious consequences”—and so the ab-
sence of a warrant is excused. Welsh v. Wisconsin, 466 U. S.
740, 751 (1984) (quoting McDonald v. United States, 335
U. S. 451, 460 (1948) (Jackson, J., concurring)).
Our cases have generally applied the exigent-circumstances
exception on a “case-by-case basis.” Birchfield v. North Da-
kota, 579 U. S. 438, ___ (2016) (slip op., at 16). The excep-
tion “requires a court to examine whether an emergency
justified a warrantless search in each particular case.” Ri-
ley, 573 U. S., at 402. Or put more curtly, the exception is
Cite as: 594 U. S. ____ (2021) 5
Opinion of the Court
“case-specific.” Id., at 388. That approach reflects the na-
ture of emergencies. Whether a “now or never situation”
actually exists—whether an officer has “no time to secure a
warrant”—depends upon facts on the ground. Id., at 391
(internal quotation marks omitted); McNeely, 569 U. S., at
149 (internal quotation marks omitted). So the issue, we
have thought, is most naturally considered by “look[ing] to
the totality of circumstances” confronting the officer as he
decides to make a warrantless entry. Id., at 149.
The question here is whether to use that approach, or in-
stead apply a categorical warrant exception, when a sus-
pected misdemeanant flees from police into his home. Un-
der the usual case-specific view, an officer can follow the
misdemeanant when, but only when, an exigency—for ex-
ample, the need to prevent destruction of evidence—allows
insufficient time to get a warrant. The appointed amicus
asks us to replace that case-by-case assessment with a flat
(and sweeping) rule finding exigency in every case of mis-
demeanor pursuit. In her view, those “entries are categori-
cally reasonable, regardless of whether” any risk of harm
(like, again, destruction of evidence) “materializes in a par-
ticular case.” Brief for Court-Appointed Amicus Curiae 31.
The fact of flight from the officer, she says, is itself enough
to justify a warrantless entry. (The principal concurrence
agrees.) To assess that position, we look (as we often do in
Fourth Amendment cases) both to this Court’s precedents
and to the common-law practices familiar to the Framers.
A
The place to start is with our often-stated view of the con-
stitutional interest at stake: the sanctity of a person’s living
space. “[W]hen it comes to the Fourth Amendment, the
home is first among equals.” Florida v. Jardines, 569 U. S.
1, 6 (2013). At the Amendment’s “very core,” we have said,
“stands the right of a man to retreat into his own home and
there be free from unreasonable government intrusion.”
6 LANGE v. CALIFORNIA
Opinion of the Court
Collins v. Virginia, 584 U. S. ___, ___ (2018) (slip op., at 5)
(internal quotation marks omitted). Or again: “Freedom”
in one’s own “dwelling is the archetype of the privacy pro-
tection secured by the Fourth Amendment”; conversely,
“physical entry of the home is the chief evil against which
[it] is directed.” Payton v. New York, 445 U. S. 573, 585,
587 (1980) (internal quotation marks omitted). The
Amendment thus “draw[s] a firm line at the entrance to the
house.” Id., at 590. What lies behind that line is of course
not inviolable. An officer may always enter a home with a
proper warrant. And as just described, exigent circum-
stances allow even warrantless intrusions. See ibid.; supra,
at 4. But the contours of that or any other warrant excep-
tion permitting home entry are “jealously and carefully
drawn,” in keeping with the “centuries-old principle” that
the “home is entitled to special protection.” Georgia v. Ran-
dolph, 547 U. S. 103, 109, 115 (2006) (internal quotation
marks omitted); see Caniglia v. Strom, 593 U. S. ___, ___
(2021) (slip op., at 4) (“[T]his Court has repeatedly declined
to expand the scope” of “exceptions to the warrant require-
ment to permit warrantless entry into the home”). So we
are not eager—more the reverse—to print a new permission
slip for entering the home without a warrant.
The amicus argues, though, that we have already created
the rule she advocates. In United States v. Santana, 427
U. S. 38 (1976), the main case she relies on, police officers
drove to Dominga Santana’s house with probable cause to
think that Santana was dealing drugs, a felony under the
applicable law. When the officers pulled up, they saw San-
tana standing in her home’s open doorway, some 15 feet
away. As they got out of the van and yelled “police,” San-
tana “retreated into [the house’s] vestibule.” Id., at 40. The
officers followed her in, and discovered heroin. We upheld
the warrantless entry as one involving a police “hot pur-
suit,” even though the chase “ended almost as soon as it be-
gan.” Id., at 43. Citing “a realistic expectation that any
Cite as: 594 U. S. ____ (2021) 7
Opinion of the Court
delay would result in destruction of evidence,” we recog-
nized the officers’ “need to act quickly.” Id., at 42–43. But
we framed our holding in broader terms: Santana’s “act of
retreating into her house,” we stated, could “not defeat an
arrest” that had “been set in motion in a public place.” Ibid.The amicus takes that statement to support a flat rule per-
mitting warrantless home entry when police officers (with
probable cause) are pursuing any suspect—whether a felon
or a misdemeanant. See Brief for Amicus Curiae 11, 26.
For support, she points to a number of later decisions de-
scribing Santana in dicta as allowing warrantless home en-
tries when police are “in ‘hot pursuit’ of a fugitive” or “a
fleeing suspect.” E.g., Steagald v. United States, 451 U. S.
204, 221 (1981); King, 563 U. S., at 460. The concurrence
echoes her arguments.
We disagree with that broad understanding of Santana,
as we have suggested before. In rejecting the amicus’s view,
we see no need to consider Lange’s counterargument that
Santana did not establish any categorical rule—even one
for fleeing felons. See Brief for Petitioner 7, 25 (contending
that Santana is “entirely consistent” with “case-by-case ex-
igency analysis” because the Court “carefully based [its]
holding on [the] specific facts” and “circumstances”). As-
suming Santana treated fleeing-felon cases categorically
(that is, as always presenting exigent circumstances allow-
ing warrantless entry), see, e.g., Stanton v. Sims, 571 U. S.
3, 8 (2013) (per curiam); McNeely, 569 U. S., at 149; King,
563 U. S., at 450, it still said nothing about fleeing misde-
meanants. We said as much in Stanton, when we approved
qualified immunity for an officer who had pursued a sus-
pected misdemeanant into a home. Describing the same
split of authority we took this case to address, we stated
that “the law regarding warrantless entry in hot pursuit of
a fleeing misdemeanant is not clearly established” (so that
the officer could not be held liable for damages). 571 U. S.,
at 6, 10. In other words, we found that neither Santana nor
8 LANGE v. CALIFORNIA
Opinion of the Court
any other decision had resolved the matter one way or the
other. And we left things in that unsettled state. See 571
U. S., at 10. Santana, we noted, addressed a police pursuit
“involv[ing] a felony suspect,” 571 U. S., at 9; whether the
same approach governed a misdemeanor chase was an is-
sue for a future case.
Key to resolving that issue are two facts about misde-
meanors: They vary widely, but they may be (in a word)
“minor.” Welsh, 466 U. S., at 750. In California and else-
where, misdemeanors run the gamut of seriousness. As the
amicus notes, some involve violence. California, for exam-
ple, classifies as misdemeanors various forms of assault.
See Cal. Penal Code Ann. §241 (West Cum. Supp. 2021);
Brief for Amicus Curiae 15a–16a. And across the country,
“many perpetrators of domestic violence are charged with
misdemeanors,” despite “the harmfulness of their conduct.”
Voisine v. United States, 579 U. S. 686, ___ (2016) (slip op.,
at 1). So “a ‘felon’ is” not always “more dangerous than a
misdemeanant.” Tennessee v. Garner, 471 U. S. 1, 14
(1985). But calling an offense a misdemeanor usually limits
prison time to one year. See 1 W. LaFave, J. Israel, N. King,
& O. Kerr, Criminal Procedure §1.8(c) (4th ed. Supp. 2020).
States thus tend to apply that label to less violent and less
dangerous crimes. In California, it is a misdemeanor to lit-
ter on a public beach. See Cal. Penal Code Ann. §374.7(a)
(2020). And to “negligently cut” a plant “growing upon pub-
lic land.” §384a(a)(2), (f ). And to “willfully disturb[ ] an-
other person by loud and unreasonable noise.” §415(2).
And (last one) to “artificially color[ ] any live chicks [or] rab-
bits.” §599(b). In forbidding such conduct, California is no
outlier. Most States count as misdemeanors such offenses
as traffic violations, public intoxication, and disorderly con-
duct. See, e.g., Tex. Transp. Code Ann. §545.413(a), (d)
(West 2011) (driving without a seatbelt); Ill. Comp. Stat.,
ch. 610, §90/1 (West 2018) (drinking alcohol in a railroad
Cite as: 594 U. S. ____ (2021) 9
Opinion of the Court
car); Ark. Code Ann. §5–71–207(a)(3), (b) (2016) (using ob-
scene language likely to promote disorder). So the amicus’s
(and concurrence’s) rule would cover lawbreakers of every
type, including quite a few hard to think alarming.
This Court has held that when a minor offense alone is
involved, police officers do not usually face the kind of emer-
gency that can justify a warrantless home entry. In Welsh,
officers responded to a call about a drunk driver only to dis-
cover he had abandoned his vehicle and walked home. See
466 U. S., at 742–743. So no police pursuit was necessary,
hot or otherwise. The officers just went to the driver’s
house, entered without a warrant, and arrested him for a
“nonjailable” offense. Ibid. The State contended that exi-
gent circumstances supported the entry because the
driver’s “blood-alcohol level might have dissipated while the
police obtained a warrant.” Id., at 754. We rejected that
argument on the ground that the driver had been charged
with only a minor offense. “[T]he gravity of the underlying
offense,” we reasoned, is “an important factor to be consid-
ered when determining whether any exigency exists.” Id.,
at 753. “[W]hen only a minor offense has been committed”
(again, without any flight), there is reason to question
whether a compelling law enforcement need is present; so
it is “particularly appropriate” to “hesitat[e] in finding exi-
gent circumstances.” Id., at 750. And we concluded:
“[A]pplication of the exigent-circumstances exception in the
context of a home entry should rarely be sanctioned when
there is probable cause to believe that only a minor offense”
is involved. Id., at 753.2
——————
2 The concurrence is wrong to say that Welsh applies only to nonjailable
offenses, and not to minor crimes that are labeled misdemeanors. See
post, at 12–13 (ROBERTS, C. J., concurring in judgment). No less than
four times, Welsh framed its holding as applying to “minor offenses” gen-
erally. 466 U. S., at 750, 752–753. (By contrast, the word “nonjailable”
does not appear in its legal analysis.) The decision cited lower court cases
10 LANGE v. CALIFORNIA
Opinion of the Court
Add a suspect’s flight and the calculus changes—but not
enough to justify the amicus’s categorical rule. We have no
doubt that in a great many cases flight creates a need for
police to act swiftly. A suspect may flee, for example, be-
cause he is intent on discarding evidence. Or his flight may
show a willingness to flee yet again, while the police await
a warrant. But no evidence suggests that every case of mis-
demeanor flight poses such dangers. Recall that misde-
meanors can target minor, non-violent conduct. See supra,
at 8–9. Welsh held that when that is so, officers can proba-
bly take the time to get a warrant. And at times that will
be true even when a misdemeanant has forced the police to
pursue him (especially given that “pursuit” may cover just
a few feet of ground, see supra, at 6). Those suspected of
minor offenses may flee for innocuous reasons and in non-
threatening ways. Consider from the casebooks: the man
with a mental disability who, in response to officers asking
him about “fidgeting with [a] mailbox,” retreated in “a hur-
ried manner” to his nearby home. Carroll v. Ellington, 800
F. 3d 154, 162 (CA5 2015). Or the teenager “driving with-
out taillights” who on seeing a police signal “did not stop
but drove two blocks to his parents’ house, ran inside, and
hid in the bathroom.” Mascorro v. Billings, 656 F. 3d 1198,
1202 (CA10 2011). In such a case, waiting for a warrant is
unlikely to hinder a compelling law enforcement need. See
id., at 1207 (“The risk of flight or escape was somewhere
between low and nonexistent[,] there was no evidence
which could have potentially been destroyed[,] and there
——————
prohibiting warrantless home entries when the defendant had commit-
ted a misdemeanor. See id., at 752. And its essential rationale applies
to all minor crimes, however labeled. As the Court stated (quoting an
earlier Justice Jackson opinion): It would “display[ ] a shocking lack of
all sense of proportion” to say that “private homes, even quarters in a
tenement, may be indiscriminately invaded at the discretion of any sus-
picious police officer engaged in following up offenses that involve no vi-
olence or threats of it.” Id., at 751 (quoting McDonald v. United States,
335 U. S. 451, 459 (1948) (concurring opinion)).
Cite as: 594 U. S. ____ (2021) 11
Opinion of the Court
were no officer or public safety concerns”). Those non-
emergency situations may be atypical. But they reveal the
overbreadth—fatal in this context—of the amicus’s (and
concurrence’s) rule, which would treat a dangerous offender
and the scared teenager the same. In misdemeanor cases,
flight does not always supply the exigency that this Court
has demanded for a warrantless home entry.
Our Fourth Amendment precedents thus point toward
assessing case by case the exigencies arising from misde-
meanants’ flight. That approach will in many, if not most,
cases allow a warrantless home entry. When the totality of
circumstances shows an emergency—such as imminent
harm to others, a threat to the officer himself, destruction
of evidence, or escape from the home—the police may act
without waiting. And those circumstances, as described
just above, include the flight itself.3 But the need to pursue
a misdemeanant does not trigger a categorical rule allowing
home entry, even absent a law enforcement emergency.
When the nature of the crime, the nature of the flight, and
——————
3 Given that our rule allows warrantless home entry when emergencies
like these exist, we think the concurrence’s alarmism misplaced. See,
e.g., post, at 2 (opinion of ROBERTS, C. J.) (bewailing “danger[ ]” and “ab-
surd[ity]”). The concurrence spends most of its time worrying about
cases in which there are exigencies above and beyond the flight itself:
when, for example, the fleeing misdemeanant will “get a gun and take
aim from inside” or “flush drugs down the toilet.” Post, at 2, 8. But again:
When an officer reasonably believes those exigencies exist, he does not
need a categorical misdemeanor-pursuit rule to justify a warrantless
home entry. (And contrary to the concurrence’s under-explained sugges-
tion, see post, at 7–8, assessing exigencies is no harder in this context
than in any other.) The only cases in which we and the concurrence reach
a different result are cases involving flight alone, without exigencies like
the destruction of evidence, violence to others, or escape from the home.
It is telling that—although they are our sole disagreement—the concur-
rence hardly talks about those “flight alone” cases. Apparently, it taxes
even the concurrence to justify as an “exigency” a warrantless entry
based only on a misdemeanant’s prior retreat into his home—when the
police officers do not reasonably believe anything harmful will happen in
the time it takes to get a warrant.
12 LANGE v. CALIFORNIA
Opinion of the Court
surrounding facts present no such exigency, officers must
respect the sanctity of the home—which means that they
must get a warrant.
B
The common law in place at the Constitution’s founding
leads to the same conclusion. That law, we have many
times said, may be “instructive in determining what sorts
of searches the Framers of the Fourth Amendment re-
garded as reasonable.” E.g., Steagald, 451 U. S., at 217.
And the Framers’ view provides a baseline for our own day:
The Amendment “must provide at a minimum the degree of
protection it afforded when it was adopted.” United States
v. Jones, 565 U. S. 400, 411 (2012); see Jardines, 569 U. S.,
at 5. Sometimes, no doubt, the common law of the time is
hard to figure out: The historical record does not reveal a
limpid legal rule. See, e.g., Payton, 445 U. S., at 592–597.
Here, we find it challenging to map every particular of the
common law’s treatment of warrantless home entries. But
the evidence is clear on the question before us: The common
law did not recognize a categorical rule enabling such an
entry in every case of misdemeanor pursuit.
Like our modern precedents, the common law afforded
the home strong protection from government intrusion. As
this Court once wrote: “The zealous and frequent repetition
of the adage that a ‘man’s house is his castle’ made it abun-
dantly clear that both in England and in the Colonies ‘the
freedom of one’s house’ was one of the most vital elements
of English liberty.” Id., at 596–597 (footnote omitted); see
Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195
(K. B. 1604) (“[T]he house of every one is as to him as his
castle and fortress, as well for his defen[s]e against injury
and violence, as for his repose” (footnote omitted)); 3 W.
Blackstone, Commentaries on the Laws of England 288
(1768) (“[E]very man’s house is looked upon by the law to
Cite as: 594 U. S. ____ (2021) 13
Opinion of the Court
be his castle of defen[s]e and asylum”).4 To protect that in-
terest, “prominent law lords, the Court of Common Pleas,
the Court of King’s Bench, Parliament,” and leading trea-
tise writers all “c[a]me to embrace” the “understanding”
that generally “a warrant must issue” before a government
official could enter a house. Donohue, The Original Fourth
Amendment, 83 U. Chi. L. Rev. 1181, 1238–1239 (2016); see
Davies, Recovering the Original Fourth Amendment, 98
Mich. L. Rev. 547, 642–646 (1999). That did not mean the
Crown got the message; its officers often asserted power to
intrude into any home they pleased—thus adding to the col-
onists’ list of grievances. See Steagald, 451 U. S., at 220.
But the law on the books offered a different model: “To enter
a man’s house” without a proper warrant, Lord Chief Jus-
tice Pratt proclaimed in 1763, is to attack “the liberty of the
subject” and “destroy the liberty of the kingdom.” Huckle v.
Money, 2 Wils. K. B. 206, 207, 95 Eng. Rep. 768, 769 (K. B.
1763). That was the idea behind the Fourth Amendment.
There was an oft-discussed exception: An officer, accord-
ing to the day’s treatises, could enter a house to pursue a
felon. The felony category then was a good deal narrower
than now. Many modern felonies were “classified as misde-
meanors” at common law, with the felony label mostly re-
served for crimes “punishable by death.” Garner, 471 U. S.,
at 13–14; see 4 W. Blackstone, Commentaries on the Laws
of England 98 (1791) (Blackstone). In addressing those se-
rious crimes, the law “allow[ed of] extremities” to meet “ne-
——————
4 In a 1763 Parliamentary debate, about searches made to enforce a
tax, William Pitt the Elder orated as follows: “The poorest man may in
his cottage bid defiance to all the forces of the Crown. It may be frail; its
roof may shake; the wind may blow through it; the storm may enter; the
rain may enter; but the King of England cannot enter—all his force dares
not cross the threshold of the ruined tenement!” Miller v. United States,
357 U. S. 301, 307, and n. 7 (1958) (citing The Oxford Dictionary of Quo-
tations 379 (2d ed. 1953); 15 T. Hansard, Parliamentary History of Eng-
land, col. 1307 (1813)).
14 LANGE v. CALIFORNIA
Opinion of the Court
cessity.” R. Burn, The Justice of the Peace, and Parish Of-
ficer 86 (6th ed. 1758). So if a person suspected “upon prob-
able grounds” of a felony “fly and take house,” Sir Matthew
Hale opined, then “the constable may break open the door,
tho he have no warrant.” 2 Pleas of the Crown 91–92 (1736)
(Hale). Sergeant William Hawkins set out a more restric-
tive rule in his widely read treatise. He wrote that a con-
stable, “with or without a warrant,” could “break open
doors” if “pursu[ing]” a person “known to have committed”
a felony—but not if the person was only “under a probable
suspicion.” 2 Pleas of the Crown 138–139 (1787) (Hawkins).
On the other hand, Sir William Blackstone went broader
than Hale. A constable, he thought, could “break open
doors”—no less than “upon a justice’s warrant”—if he had
“probable suspicion [to] arrest [a] felon,” even absent flight
or pursuit. Blackstone 292. The commentators thus dif-
fered on the scope of the felony exception to the warrant
requirement. But they agreed on one thing: It was indeed
a felony exception. All their rules applied to felonies as a
class, and to no other whole class of crimes.
In the misdemeanor context, officers had more limited
authority to intrude on a fleeing suspect’s home.5 Once
again, some of the specifics are uncertain, and commenta-
tors did not always agree with each other. But none sug-
gested any kind of all-misdemeanor-flight rule. Instead,
their approval of entry turned on the circumstances. One
set of cases involved what might be called pre-felonies.
Blackstone explained that “break[ing] open doors” was al-
lowable not only “in case of [a] felony” but also in case of “a
dangerous wounding whereby [a] felony is likely to ensue.”
Ibid. In other words, the felony rule extended to crimes that
would become felonies if the victims died. See Hale 94.6
——————
5 Note, though, that if a person had already been arrested and then
escaped from custody, an officer could always search for him at home.
See 2 W. Hawkins, Pleas of the Crown 87 (1721).
6 Both felonies and pre-felonies justified the common law’s “hue and
Cite as: 594 U. S. ____ (2021) 15
Opinion of the Court
Another set of cases involved crimes, mostly violent them-
selves, liable to provoke felonious acts. Often called “af-
frays” or “breaches of the peace,” a typical example was “the
fighting of two or more persons” to “the terror of his maj-
esty’s subjects.” Blackstone 145, 150.7 Because that con-
duct created a “danger of felony”—because when it oc-
curred, “there is likely to be manslaughter or bloodshed
committed”—“the constable may break open the doors to
keep the peace.” Hale 90, 95 (emphasis deleted); see Haw-
kins 139 (blessing a warrantless entry “where those who
have made an affray in [the constable’s] presence fly to a
house and are immediately pursued”). Hale also approved
a warrantless entry to stop a more mundane form of harm:
He (though not other commentators) thought a constable
could act to “suppress the disorder” associated with “drink-
ing or noise in a house at an unseasonable time of night.”
Hale 95. But differences aside, all the commentators fo-
cused on the facts of cases: When a suspected misdemean-
ant, fleeing or otherwise, threatened no harm, the constable
had to get a warrant.
The common law thus does not support a categorical rule
allowing warrantless home entry when a misdemeanant
flees. It had a rule of that kind for felonies. But much as
——————
cry”: when a constable or other person “raise[d] the power of the towne”—
“with horn and with voice”—to pursue an offender. 3 E. Coke, Institutes
of the Laws of England 116 (1644); Blackstone 293. Most of the common-
law authorities approved warrantless home entries upon a hue and cry.
But because that process was generally available only to apprehend fel-
ons and those who had “dangerously wounded any person,” it did not en-
large the range of qualifying offenses. Hale 98; see Brief for Constitu-
tional Accountability Center as Amicus Curiae 17–18.
7 The term “breach of the peace” can today encompass many kinds of
behavior, and even in common-law times it “meant very different things
in different” contexts. Atwater v. Lago Vista, 532 U. S. 318, 327, n. 2
(2001). But “[m]ore often than not, when used in reference to common-
law arrest power, the term seemed to connote an element of violence.”
Id., at 327–328, n. 2.
16 LANGE v. CALIFORNIA
Opinion of the Court
in Welsh centuries later, the common law made distinctions
based on “the gravity of the underlying offense.” 466 U. S.,
at 753. When it came to misdemeanors, flight alone was
not enough. Whether a constable could make a warrantless
entry depended as well on other circumstances suggesting
a potential for harm and a need to act promptly.8 In that
way, the common-law rules (even if sometimes hard to dis-
cern with precision) mostly mirror our modern caselaw.
The former too demanded—and often found—a law enforce-
ment exigency before an officer could “break open” a fleeing
misdemeanant’s doors. Blackstone 292.
III
The flight of a suspected misdemeanant does not always
justify a warrantless entry into a home. An officer must
consider all the circumstances in a pursuit case to deter-
mine whether there is a law enforcement emergency. On
many occasions, the officer will have good reason to enter—
to prevent imminent harms of violence, destruction of evi-
dence, or escape from the home. But when the officer has
time to get a warrant, he must do so—even though the mis-
demeanant fled.
Because the California Court of Appeal applied the cate-
gorical rule we reject today, we vacate its judgment and re-
mand the case for further proceedings not inconsistent with
this opinion.
It is so ordered.
——————
8 The concurrence professes to disagree with this conclusion, see post,
at 17–19 (opinion of ROBERTS, C. J.), but its account of the common law
ends up in much the same place as ours. The concurrence recognizes a
categorical rule permitting warrantless home entry in pursuit of fleeing
felons. See post, at 17. But for misdemeanants, the concurrence presents
only discrete circumstances—mostly the same as ours—allowing home
entry without a warrant. Post, at 17–18. Those particular instances of
permissible entry do not create a categorical rule.
Cite as: 594 U. S. ____ (2021) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–18
_________________
ARTHUR GREGORY LANGE, PETITIONER v.
CALIFORNIA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT
[June 23, 2021]
JUSTICE KAVANAUGH, concurring.
The Court holds that an officer may make a warrantless
entry into a home when pursuing a fleeing misdemeanant
if an exigent circumstance is also present—for example,
when there is a risk of escape, destruction of evidence, or
harm to others. I join the Court’s opinion. I also join Part
II of JUSTICE THOMAS’s concurrence regarding how the ex-
clusionary rule should apply to hot pursuit cases.
I add this brief concurrence simply to underscore that, in
my view, there is almost no daylight in practice between the
Court’s opinion and THE CHIEF JUSTICE’s opinion concur-
ring in the judgment.
In his thoughtful opinion, THE CHIEF JUSTICE concludes
that pursuit of a fleeing misdemeanant should itself consti-
tute an exigent circumstance. The Court disagrees. As I
see it, however, the difference between THE CHIEF
JUSTICE’s approach and the Court’s approach will be aca-
demic in most cases. That is because cases of fleeing mis-
demeanants will almost always also involve a recognized
exigent circumstance—such as a risk of escape, destruction
of evidence, or harm to others—that will still justify war-
rantless entry into a home. See ante, at 1, 4, 16; see also,
e.g., City and County of San Francisco v. Sheehan, 575 U. S.
600, 612 (2015); Kentucky v. King, 563 U. S. 452, 460 (2011);
2 LANGE v. CALIFORNIA
KAVANAUGH, J., concurring
Brigham City v. Stuart, 547 U. S. 398, 403 (2006); Minne-
sota v. Olson, 495 U. S. 91, 100 (1990). As Lange’s able
counsel forthrightly acknowledged at oral argument, the
approach adopted by the Court today will still allow the po-
lice to make a warrantless entry into a home “nine times
out of 10 or more” in cases involving pursuit of a fleeing
misdemeanant. Tr. of Oral Arg. 34.
Importantly, moreover, the Court’s opinion does not dis-
turb the long-settled rule that pursuit of a fleeing felon is
itself an exigent circumstance justifying warrantless entry
into a home. See United States v. Santana, 427 U. S. 38,
42–43 (1976); cf. Stanton v. Sims, 571 U. S. 3, 8, 9 (2013)
(per curiam). In other words, the police may make a war-
rantless entry into the home of a fleeing felon regardless of
whether other exigent circumstances are present.
With those observations, I join the Court’s opinion.
Cite as: 594 U. S. ____ (2021) 1
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–18
_________________
ARTHUR GREGORY LANGE, PETITIONER v.
CALIFORNIA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT
[June 23, 2021]
JUSTICE THOMAS, with whom JUSTICE KAVANAUGH joins
as to Part II, concurring in part and concurring in the judg-
ment.
I join the majority opinion, except for Part II–A, which
correctly rejects the argument that suspicion that a person
committed any crime justifies warrantless entry into a
home in hot pursuit of that person. I write separately to
note two things: the general case-by-case rule that the
Court announces today is subject to historical, categorical
exceptions; and under our precedent, the federal exclusion-
ary rule does not apply to evidence discovered in the course
of pursuing a fleeing suspect.
I
The majority sets out a general rule requiring a case-by-
case inquiry when an officer enters a home without a war-
rant in pursuit of a person suspected of committing a mis-
demeanor. But history suggests several categorical excep-
tions to this rule. First, warrantless entry is categorically
allowed when a person is arrested and escapes. E.g., J. Par-
ker, Conductor Generalis 28–29 (1788) (constables may
break into houses without a warrant “[w]herever a person
is lawfully arrested for any cause, and afterwards escapes,
and shelters himself in an house”); ante, at 14, n. 5. This
exception is potentially very broad. See Torres v. Madrid,
2 LANGE v. CALIFORNIA
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
592 U. S. ___, ___ (2021) (slip op., at 1) (holding that an ar-
rest occurs whenever an officer applies physical force to the
body with intent to restrain); Genner v. Sparks, 6 Mod. 173,
174, 87 Eng. Rep. 928, 929 (Q. B. 1704). Second, authorities
at common law categorically allowed warrantless entry
when in hot pursuit of a person who committed an affray.
Ante, at 15. Third, those authorities allowed the same for
what the majority calls certain “pre-felonies.” Ante, at 14.
Finally, some authorities appear to have allowed warrant-
less entry when in pursuit of a person who had breached
the peace. See, e.g., 2 M. Hale, Pleas of the Crown 95 (1736)
(Hale); Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev.
798, 802–803 (1924)). What crimes amounted to “breach of
peace” for purposes of warrantless entry is not immediately
clear. The term sometimes was used to refer to violence,
but the majority recognizes historical support for a broader
definition. Ante, at 15 (citing Hale 95). And cases decided
before and after the Fourteenth Amendment was ratified
similarly used the term “breach of peace” in a broad sense.
E.g., State v. Lafferty, 5 Del. 491 (1854) (“blow[ing] a trum-
pet at night through the streets”); Hawkins v. Lutton, 95
Wis. 492, 494, 70 N. W. 483 (1897) (“loud, profane, and in-
decent” language).
I join the relevant parts of the majority on the under-
standing that its general case-by-case rule does not fore-
close historical, categorical exceptions. Although the ma-
jority unnecessarily leads with doctrine before history, it
does not disturb our regular rule that history—not court-
created standards of reasonableness—dictates the outcome
whenever it provides an answer. See, e.g., Wilson v. Arkan-
sas, 514 U. S. 927, 931 (1995); Virginia v. Moore, 553 U. S.
164, 171 (2008).
I also join on the understanding that the majority has not
sought to settle the contours of any of these historical ex-
ceptions.
Cite as: 594 U. S. ____ (2021) 3
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
II
I also write to point out that even if the state courts on
remand conclude that the officer’s entry here was unlawful,
the federal exclusionary rule does not require suppressing
any evidence.
“[O]fficers who violated the Fourth Amendment were tra-
ditionally considered trespassers.” Utah v. Strieff, 579
U. S. 232, 237 (2016). For that reason, “individuals subject
to unconstitutional searches or seizures historically en-
forced their rights through tort suits or self-help.” Ibid.But beginning in the 20th century, this Court created a new
remedy: exclusion of evidence in criminal trials. Ibid.Establishing a violation of the Fourth Amendment,
though, does not automatically entitle a criminal defendant
to exclusion of evidence. Far from it. “[T]he exclusionary
rule is not an individual right.” Herring v. United States,
555 U. S. 135, 141 (2009). It is a “ ‘prudential’ doctrine cre-
ated by this Court,” Davis v. United States, 564 U. S. 229,
236 (2011) (citation omitted), and there is always a “high
obstacle for those urging application of the rule,” Pennsyl-
vania Bd. of Probation and Parole v. Scott, 524 U. S. 357,
364–365 (1998). Relevant here, the rule “does not apply
when the costs of exclusion outweigh its deterrent benefits.”
Strieff, 579 U. S., at 235.
On the benefits side, “we have said time and again that
the sole” factor courts can consider is “deter[ring] miscon-
duct by law enforcement.” Davis, 564 U. S., at 246. And
not just any misconduct. The exclusionary rule developed
to deter “intentional conduct that was patently unconstitu-
tional.” Herring, 555 U. S., at 143 (emphasis added). For
the past several decades, we have thus declined to exclude
evidence where exclusion would not substantially deter “in-
tentional” and “flagrant” behavior. Id., at 144. For exam-
ple, the exclusionary rule does not apply where “some inter-
vening circumstance” arises between unconstitutional
conduct and discovery of evidence, Strieff, 579 U. S., at 238;
4 LANGE v. CALIFORNIA
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
where evidence would inevitably have been discovered,
ibid.; or where officers have acted in good faith, United
States v. Leon, 468 U. S. 897, 908 (1984).
On the other side of the ledger, we consider all “costs.”
E.g., Davis, 564 U. S., at 237. One cost is especially salient:
excluding evidence under the Fourth Amendment always
obstructs the “ ‘truth-finding functions of judge and jury.’ ”
Leon, 468 U. S., at 907; accord, Nix v. Williams, 467 U. S.
431, 443 (1984) (recognizing “the public interest in having
juries receive all probative evidence”). This interference
with the purpose of the judicial system also creates a down-
stream risk that “some guilty defendants may go free or re-
ceive reduced sentences.” Leon, 468 U. S., at 907.
By itself, this high cost makes exclusion under our prece-
dent rarely appropriate. “Suppression of evidence . . . has
always been our last resort, not our first impulse.” Hudson
v. Michigan, 547 U. S. 586, 591 (2006). When additional
costs are present, the balance tips decisively against exclu-
sion.
Cases of fleeing suspects involve more than enough added
costs to render the exclusionary rule inapplicable. First,
our precedents make clear that the exclusionary rule does
not apply when it would encourage bad conduct by criminal
defendants. For example, evidence obtained during an un-
lawful search is still admissible to impeach a witness be-
cause exclusion would create “ ‘a license to use perjury.’ ”
United States v. Havens, 446 U. S. 620, 626 (1980). Here,
exclusion is inappropriate because it would encourage sus-
pects to flee. Second, our precedents similarly make clear
that criminal defendants cannot use the exclusionary rule
as “a shield against” their own bad conduct. Walder v.
United States, 347 U. S. 62, 65 (1954). In most—if not all—
States, fleeing from police after a lawful order to stop is a
crime. All the evidence that petitioner seeks to exclude is
evidence that inevitably would have been discovered had he
Cite as: 594 U. S. ____ (2021) 5
HOMAS, of
TOpinion J.,Tconcurring
HOMAS, J.
complied with the officer’s order to stop. A criminal defend-
ant should “not . . . be put in a better position than [he]
would have been in if no illegality had transpired.” Nix, 467
U. S., at 443–444.
Aware of the substantial costs created by the exclusion-
ary rule, courts have sometimes narrowed the protections
historically afforded by the Fourth Amendment to avoid
having to exclude evidence. See Collins v. Virginia, 584
U. S. ___, ___ (2018) (THOMAS, J., concurring) (slip op., at
1); A. Amar, The Constitution and Criminal Procedure:
First Principles 30 (1997) (“Judges do not like excluding
bloody knives, so they distort doctrine”). But it should be
the judicially created remedy, not the Fourth Amendment,
that contracts in the face of that pressure. Courts should
follow the plain dictates of our precedent: Officers cannot
chase a fleeing person into a home simply because that per-
son is suspected of having committed any misdemeanor, but
if the officer nonetheless does so, exclusion under the
Fourth Amendment is improper. Criminal defendants
must rely on other remedies.
Cite as: 594 U. S. ____ (2021) 1
ROBERTS , C. J., ,concurring
ROBERTS C. J., concurring
in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–18
_________________
ARTHUR GREGORY LANGE, PETITIONER v.
CALIFORNIA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
CALIFORNIA, FIRST APPELLATE DISTRICT
[June 23, 2021]
CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO
joins, concurring in the judgment.
Suppose a police officer on patrol responds to a report of
a man assaulting a teenager. Arriving at the scene, the of-
ficer sees the teenager vainly trying to ward off the assail-
ant. The officer attempts to place the assailant under ar-
rest, but he takes off on foot. He leads the officer on a chase
over several blocks as the officer yells for him to stop. With
the officer closing in, the suspect leaps over a fence and then
stands on a home’s front yard. He claims it’s his home and
tells the officer to stay away. What is the officer to do?
The Fourth Amendment and our precedent—not to men-
tion common sense—provide a clear answer: The officer can
enter the property to complete the arrest he lawfully initi-
ated outside it. But the Court today has a different take.
Holding that flight, on its own, can never justify a warrant-
less entry into a home (including its curtilage), the Court
requires that the officer: (1) stop and consider whether the
suspect—if apprehended—would be charged with a misde-
meanor or a felony, and (2) tally up other “exigencies” that
might be present or arise, ante, at 1, 4, before (3) deciding
whether he can complete the arrest or must instead seek a
warrant—one that, in all likelihood, will not arrive for
hours. Meanwhile, the suspect may stroll into the home
and then dash out the back door. Or, for all the officer
2 LANGE v. CALIFORNIA
ROBERTS , C. J., ,concurring
ROBERTS C. J., concurring
in judgment
knows, get a gun and take aim from inside.
The Constitution does not demand this absurd and dan-
gerous result. We should not impose it. As our precedent
makes clear, hot pursuit is not merely a setting in which
other exigent circumstances justifying warrantless entry
might emerge. It is itself an exigent circumstance. And we
have never held that whether an officer may enter a home
to complete an arrest turns on what the fleeing individual
was suspected of doing before he took off, let alone whether
that offense would later be charged as a misdemeanor or
felony. It is the flight, not the underlying offense, that has
always been understood to justify the general rule: “Police
officers may enter premises without a warrant when they
are in hot pursuit of a fleeing suspect.” Kentucky v. King,
563 U. S. 452, 460 (2011). The Court errs by departing from
that well-established rule.
I
A
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures” and provides
that “no Warrants shall issue, but upon probable cause.”
While the Amendment does not specify when a warrant
must be obtained, we have typically required that officers
secure one before entering a home to execute a search or
seizure. King, 563 U. S., at 459. We have also, however,
recognized exceptions to that requirement “because the ul-
timate touchstone of the Fourth Amendment is ‘reasonable-
ness.’ ” Brigham City v. Stuart, 547 U. S. 398, 403 (2006).
In some instances the Court has determined that this
question of reasonableness can be decided by application of
a rule for a particular type of case. Mitchell v. Wisconsin,
588 U. S. ___, ___, n. 2 (2019) (plurality opinion) (slip op., at
9, n. 2); see Illinois v. McArthur, 531 U. S. 326, 330 (2001)
Cite as: 594 U. S. ____ (2021) 3
ROBERTS , C. J., ,concurring
ROBERTS C. J., concurring
in judgment
(“[T]his Court has interpreted the Amendment as establish-
ing rules and presumptions.”). This approach reflects our
recognition of the need “to provide clear guidance to law en-
forcement.” Riley v. California, 573 U. S. 373, 398 (2014).
We strive to “draw standards sufficiently clear and simple
to be applied with a fair prospect of surviving judicial
second-guessing months and years after an arrest or search
is made.” Atwater v. Lago Vista, 532 U. S. 318, 347 (2001).
We have, for example, established general rules giving ef-
fect to the “well-recognized exception [that] applies when
the exigencies of the situation make the needs of law en-
forcement so compelling that [a] warrantless search is ob-
jectively reasonable under the Fourth Amendment.” King,
563 U. S., at 460 (some alterations in original; internal quo-
tation marks omitted). In fact, “our exigency case law is full
of general rules” that provide “guidance on how police
should handle [such] cases.” Mitchell, 588 U. S., at ___,
n. 3 (slip op., at 9, n. 3) (internal quotation marks omitted).
These rules allow warrantless entry into the home when
necessary to “protect individuals who are threatened with
imminent harm, or prevent the imminent destruction of ev-
idence.” Carpenter v. United States, 585 U. S. ___, ___–___
(2018) (slip op., at 21–22). Or—relevant here—“to pursue a
fleeing suspect.” Id., at ___ (slip op., at 21).
We take a case-by-case approach in deciding whether a
search or seizure was conducted in reaction to an exigent
circumstance, such as whether an officer had an objective
basis to “fear the imminent destruction of evidence.” Birch-
field v. North Dakota, 579 U. S. 438, ___ (2016) (slip op., at
15). But once faced with an exigency, our rule is clear: of-
ficers are “not bound to learn anything more or wait any
longer before going in.” United States v. Banks, 540 U. S.
31, 40 (2003).
Today, the Court holds that hot pursuit merely sets the
table for other exigencies that may emerge to justify war-
rantless entry, such as imminent harm. This comes as a
4 LANGE v. CALIFORNIA
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surprise. For decades we have consistently recognized pur-
suit of a fleeing suspect as an exigency, one that on its own
justifies warrantless entry into a home.
Almost a half century ago in United States v. Santana,
427 U. S. 38 (1976), we considered whether hot pursuit sup-
ports warrantless home entry. We held that such entry was
justified when Santana “retreat[ed] into her house” after a
drug transaction upon hearing law enforcement “shout[ ]
‘police’ ” and seeing them “display[ ] their identification.”
Id., at 40, 42. As we explained, “a suspect may not defeat
an arrest which has been set in motion in a public place . . .
by the expedient of escaping to a private place.” Id., at 43.
Our interpretation of the Fourth Amendment did not hinge
on whether the offense that precipitated her withdrawal
was a felony or a misdemeanor. See Stanton v. Sims, 571
U. S. 3, 9 (2013) (per curiam).
We have repeatedly and consistently reaffirmed that hot
pursuit is itself an exigent circumstance. See, e.g., Carpen-
ter, 585 U. S., at ____ (slip op., at 21) (“[E]xigencies include
the need to pursue a fleeing suspect.”); Collins v. Virginia,
584 U. S. ___, ___ (2018) (slip op., at 12) (distinguishing
prior case approving warrantless entry onto the curtilage
as best sounding in “hot pursuit”); Birchfield, 579 U. S., at
___ (slip op., at 15) (exception for exigent circumstances au-
thorizes “the warrantless entry of private property . . .
when police are in hot pursuit of a fleeing suspect”); King,
563 U. S., at 460 (“Police officers may enter premises with-
out a warrant when they are in hot pursuit of a fleeing sus-
pect.”); Brigham City, 547 U. S., at 403 (“We have held, for
example, that law enforcement officers may make a war-
rantless entry onto private property . . . to engage in ‘hot
pursuit’ of a fleeing suspect.” (citations omitted)); Steagald
v. United States, 451 U. S. 204, 221 (1981) (“[W]arrantless
entry of a home would be justified if the police were in ‘hot
pursuit’ of a fugitive.”); see also Mitchell, 588 U. S., at ___
(SOTOMAYOR, J., dissenting) (slip op., at 11) (“ ‘hot pursuit’
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of a fleeing suspect” qualifies as an exigency); Missouri v.
McNeely, 569 U. S. 141, 176–177 (2013) (THOMAS, J., dis-
senting) (same).
These cases, it bears repeating, have not viewed hot pur-
suit as merely the background against which other exigen-
cies justifying warrantless entry might arise. See, e.g., Car-
penter, 585 U. S., at ___–___ (slip op., at 21–22) (identifying
destruction of evidence, emergency aid, and hot pursuit as
separate exigencies); Birchfield, 579 U. S., at ___ (slip op.,
at 15) (same); McNeely, 569 U. S., at 148–149 (opinion of
the Court) (same); King, 563 U. S., at 460 (same); Brigham
City, 547 U. S., at 403 (same); see also Mitchell, 588 U. S.,
at ___ (SOTOMAYOR, J., dissenting) (slip op., at 11) (same).
And our decisions do not dismiss the existence of an exi-
gency—including hot pursuit—based on the underlying of-
fense that precipitated law enforcement action, even if
known. To the contrary, until today, we have explicitly re-
jected invitations to do so. See Brigham City, 547 U. S., at
405 (dismissing defendants’ contention that offenses at is-
sue were “not serious enough” to justify reliance on the
emergency aid doctrine); Michigan v. Fisher, 558 U. S. 45,
47 (2009) (per curiam); see also Atwater, 532 U. S., at 354(rejecting exception for “very minor criminal offense[s]” to
rule allowing warrantless arrests).
The Court displays little patience for this precedent.
With regard to Santana, the Court concedes that “we
framed our holding in broad[ ] terms.” Ante, at 7. Yet it
narrows those terms based on rationales that played no role
in the decision. The Court then brushes off our slew of cases
reaffirming Santana’s broad holding as nothing more than
“dicta.” Ante, at 7. I would not override decades of guidance
to law enforcement in favor of a new rule that provides no
guidance at all.
B
A proper consideration of the interests at stake confirms
6 LANGE v. CALIFORNIA
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the position our precedent amply supports. Pursuit impli-
cates substantial government interests, regardless of the of-
fense precipitating the flight. It is the flight, not the under-
lying offense, that justifies the entry.
At the start, every hot pursuit implicates the government
interest in ensuring compliance with law enforcement. Cal-
ifornia v. Hodari D., 499 U. S. 621, 627 (1991). Flight is a
direct attempt to evade arrest and thereby frustrate our
“society’s interest in having its laws obeyed.” Terry v. Ohio,
392 U. S. 1, 26 (1968). Disregarding an order to yield to law
enforcement authority cannot be dismissed with a shrug of
the shoulders simply because the underlying offense is re-
garded as “innocuous,” ante, at 10. As the many state
courts to approve of warrantless entry in hot pursuit have
reminded us, “[l]aw enforcement is not a child’s game of
prisoners base, or a contest, with apprehension and convic-
tion depending upon whether the officer or defendant is the
fleetest of foot.” Commonwealth v. Jewett, 471 Mass. 624,
634, 31 N. E. 3d 1079, 1089 (2015) (quoting State v. Ricci,
144 N. H. 241, 245, 739 A. 2d 404, 408 (1999)).
Flight also always involves the “paramount” government
interest in public safety. Scott v. Harris, 550 U. S. 372, 383
(2007); see Hodari D., 499 U. S., at 627 (“Street pursuits
always place the public at some risk, and compliance with
police orders to stop should therefore be encouraged.”). A
fleeing suspect “intentionally place[s] himself and the pub-
lic in danger.” Scott, 550 U. S., at 384. Vehicular pursuits,
in particular, are often catastrophic. See Dept. of Justice,
Bureau of Justice Statistics, B. Reaves, Police Vehicle Pur-
suits, 2012–2013, p. 6 (May 2017) (average of about one
death per day in the United States from vehicle pursuits
from 1996 to 2015). Affording suspects the opportunity to
evade arrest by winning the race rewards flight and encour-
ages dangerous behavior.
And the problems do not end there because hot pursuit
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often gives rise to multiple other exigencies, such as de-
struction of evidence, violence, and escape. The Court
acknowledges this reality, but then posits that not “every
case of misdemeanor flight poses such dangers.” Ante, at
10 (emphasis added). Of course not. But we have never
required such a level of certainty before crafting a general
rule that law enforcement can follow. For example, in
Washington v. Chrisman, 455 U. S. 1 (1982), we held that
an officer may accompany an arrestee into his residence
without any showing of exigency and regardless of the “na-
ture of the offense for which the arrest was made,” because
there “is no way for an officer to predict reliably how a par-
ticular subject will react to arrest” and “the possibility that
an arrested person will attempt to escape if not properly
supervised is obvious.” Id., at 6–7. In Michigan v. Sum-
mers, 452 U. S. 692 (1981), we concluded that, although “no
special danger to the police” was suggested by the evidence
in the record, the execution of a search warrant merited a
categorical rule allowing detention of present individuals
because it was the “kind of transaction” that could give rise
to other exigencies. Id., at 702. And in United States v.
Robinson, 414 U. S. 218 (1973), we held that the search in-
cident to arrest exception applies to all arrests regardless
“what a court may later decide was the probability in a par-
ticular arrest situation that weapons or evidence would in
fact be found,” because arrests require “quick ad hoc judg-
ment[s].” Id., at 235.
Such concerns are magnified here. The act of pursuing a
fleeing suspect makes simultaneously assessing which
other exigencies might arise especially difficult to ascertain
“on the spur (and in the heat) of the moment.” Atwater, 532
U. S., at 347. The Court disputes this proposition, ante, at
11, n. 3, but the difficulty of discerning hidden weapons or
drugs on a suspect running or driving away seems clear to
us.
The risks to officer safety posed by the Court’s suggestion
8 LANGE v. CALIFORNIA
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that an officer simply abandon pursuit and await a warrant
are severe. We are warned in this case that “attempting
warrant service for an unknown suspect in an unknown
home at night is flat dangerous.” Brief for Sonoma County
District Attorney’s Office et al. as Amici Curiae 33.
Whether at night or during the day, the officer is obviously
vulnerable to those inside the home while awaiting a war-
rant, including danger from a suspect who has already
demonstrated himself to be undeterred by police orders.
See, e.g., Thompson v. Florence, 2019 WL 3220051, *4 (ND
Ala., July 17, 2019) (at fleeing suspect’s urging, resident
grabbed a handgun); State v. Davis, 2000–278, p. 5 (La.
App. 5 Cir. 8/29/00), 768 So. 2d 201, 206 (fleeing suspect
“reached for a handgun” inside home).
Even if the area outside the home remains tranquil, the
suspect inside is free to destroy evidence or continue his es-
cape. Flight is obviously suggestive of these recognized ex-
igencies, which could materialize promptly once the officer
is compelled to abandon pursuit. The destruction of evi-
dence can take as little as “15 or 20 seconds,” Banks, 540
U. S., at 40; and a suspect can dash out the back door just
as quickly, while the officer must wait outside. Forcing the
officer to wait and predict whether such exigencies will oc-
cur before entry is in practice no different from forcing the
officer to wait for these exigencies to occur.
Indeed, from the perspective of the officer, many in-
stances of flight leading to further wrongdoing are the sort
of “flight alone” cases the Court deems harmless, ante, at
11, n. 3. Despite the Court’s suggestion to the contrary, ex-
amples of “flight alone” generating exigencies difficult to
identify in advance are not hard to find. See, e.g. State v.
Lam, 2013-Ohio-505, 989 N. E. 2d 100, 101–102 (App.)
(warrantless entry in hot pursuit of someone who commit-
ted turn signal violation revealed heroin on suspect and
suggested attempt to flush drugs down the toilet); State v.
Mitchem, 2014-Ohio-2366, 2014 WL 2565680, *1 (App.,
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June 4, 2014) (suspect who committed trespass, fled from
the police into private driveway, and stated to officers
“[Y]ou can’t touch me, I’m at my house,” turned out to have
a gun). (And, as we will see, it is apparently hard to decide
which cases qualify as “flight alone” cases, see infra, at 16.)
If the suspect continues to flee through the house, while
the officer must wait, even the quickest warrant will be far
too late. Only in the best circumstances can one be obtained
in under an hour, see Brief for Respondent 33, and it usu-
ally takes much longer than that, see Brief for Los Angeles
County Police Chiefs’ Association as Amicus Curiae 24–25.
Even electronic warrants may involve “time-consuming for-
malities.” McNeely, 569 U. S., at 155. And some States typ-
ically require that a warrant application be in writing, see,
e.g., Colo. Rev. Stat. §16–3–303 (2020), or that the applicant
appear in person before a judge, see, e.g., Mass. Gen. Laws,
ch. 276, §2B (2019), or permit oral applications only for cer-
tain cases, see, e.g., Iowa Code §321J.10.3 (2019). All of
these factors make it very possible that the officer will never
be able to identify the suspect if he cannot continue the pur-
suit. See Hiibel v. Sixth Judicial Dist. Court of Nev., Hum-
boldt Cty., 542 U. S. 177, 186 (2004) (recognizing identifica-
tion as an “important government interest[ ]”). The Court
today creates “perverse incentives” by imposing an “invita-
tion to impunity-earned-by-recklessness.” Scott, 555 U. S.,
at 385–386.
Against these government interests we balance the sus-
pect’s privacy interest in a home to which he has voluntarily
led a pursuing officer. If the residence is not his the suspect
has no privacy interest to protect. Rakas v. Illinois, 439
U. S. 128, 141 (1978); see also State v. Walker, 2006–1045,
p. 7 (La. 4/11/07), 953 So. 2d 786, 790–791 (suspect fled into
third person’s residence where he was unwelcome); Ulysse
v. State, 899 So. 2d 1233, 1234 (Fla. App. 2005) (suspect ran
inside the home of “a complete stranger”). The police may
well have no reason to know whether the suspect entered
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his own or someone else’s home or yard. If the suspect does
escape into his own home, his privacy interest is diminished
because he was the one who chose to move his encounter
with the police there. See State v. Legg, 633 N. W. 2d 763,
773 (Iowa 2001) (nature of intrusion is “slight” in hot pur-
suit because the officer’s entry “was no surprise to [the sus-
pect]; he was following closely on her heels”); 4 W. LaFave,
Search and Seizure §9.2(d), p. 419 (6th ed. 2020) (“the sus-
pect has only himself to blame for the fact that the encoun-
ter has been moved from a public to a private area”). In
cases of hot pursuit, “[t]he offender is then not being both-
ered by the police unexpectedly while in domestic tranquil-
ity. He has gone to his home while fleeing solely to escape
arrest.” R. v. Macooh, [1993] 2 S. C. R. 802, 815. Put dif-
ferently, just as arrestees have “reduced privacy interests,”
Riley, 573 U. S., at 391, so too do those who evade arrest by
leading the police on car chases into their garages.
C
“In determining what is reasonable under the Fourth
Amendment, we have given great weight to the essential
interest in readily administrable rules.” Virginia v. Moore,
553 U. S. 164, 175 (2008) (internal quotation marks omit-
ted). This is particularly true with respect to the rules gov-
erning exceptions to the warrant requirement because of
exigent circumstances. See Mitchell, 588 U. S., at ___, n. 3
(slip op., at 9, n. 3). And contrary to the Court’s suggestion,
the home is not immune from the application of such rules
consistent with the Fourth Amendment. See, e.g., Sum-
mers, 452 U. S., at 705; Chimel v. California, 395 U. S. 752,
763 (1969).
Like most rules, this one is not without exceptions or
qualifications. The police cannot manufacture an unneces-
sary pursuit to enable a search of a home rather than to
execute an arrest. Cf. Fernandez v. California, 571 U. S.
292, 302 (2014) (“evidence that the police have removed the
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potentially objecting tenant from the entrance for the sake
of avoiding possible objection” would be probative of the ob-
jective unreasonableness of a warrantless entry based on
the consent of another occupant). Additionally, if a reason-
able officer would not believe that the suspect fled into the
home to “thwart an otherwise proper arrest,” Santana, 427
U. S., at 42, warrantless entry would not be reasonable.
Additional safeguards limit the potential for abuse. The
officer must in all events effect a reasonable entry. United
States v. Ramirez, 523 U. S. 65, 71 (1998). As the lower
courts have recognized, hot pursuit gives the officer author-
ity to enter a home, but “it does not have any bearing on the
constitutionality of the manner in which he enters the
home.” Trent v. Wade, 776 F. 3d 368, 382 (CA5 2015). And
his authority to search is circumscribed, limited to “those
spaces where a person may be found” for “no longer than it
takes to complete the arrest and depart the premises.”
Maryland v. Buie, 494 U. S. 325, 335–336 (1990). Finally,
arrests conducted “in an extraordinary manner, unusually
harmful to an individual’s privacy or even physical inter-
ests” are subject to even more stringent review. Whren v.
United States, 517 U. S. 806, 818 (1996).
Courts must also ascertain whether a given set of circum-
stances actually qualifies as hot pursuit. While the flight
need not be reminiscent of the opening scene of a James
Bond film, there must be “some sort of a chase.” Santana,
427 U. S., at 43. The pursuit must be “immediate or con-
tinuous.” Welsh v. Wisconsin, 466 U. S. 740, 753 (1984).
And the suspect should have known the officer intended for
him to stop. Cf. Michigan v. Chesternut, 486 U. S. 567, 573–
574 (1988). Where a suspect, for example, chooses to end a
voluntary conversation with law enforcement and go inside
her home, that does not constitute flight. Florida v. Royer,
460 U. S. 491, 497–498 (1983) (plurality opinion).
Because the California Court of Appeals assumed that
hot pursuit categorically permits warrantless entry, I
12 LANGE v. CALIFORNIA
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would vacate the decision below to allow consideration of
whether the circumstances at issue in this case fall within
an exception to the general rule of the sort outlined above.
Lange would be free to argue that his is the “unusual case,”
Mitchell, 588 U. S., at ____ (plurality opinion) (slip op., at
16), in which the general rule that hot pursuit justifies war-
rantless entry does not apply.
II
Now consider the regime the Court imposes. In rejecting
the amicus’ proposed categorical rule favoring warrantless
home entry, the Court creates a categorical rule of its own:
Flight alone can never justify warrantless entry into a home
or its curtilage. Instead, flight is but one factor of unclear
weight to “consider,” ante, at 16, and it must be supple-
mented with at least one additional exigency. This is nec-
essary, the Court explains, because people “flee for innocu-
ous reasons,” ante, at 10, although the Court offers just two
actual examples of “innocuous” flight, the harmlessness of
which would not have been apparent to the police, see ibid.(citing Carroll v. Ellington, 800 F. 3d 154, 162 (CA5 2015;
Mascorro v. Billings, 656 F. 3d 1198, 1202 (CA10 2011)).
In order to create a hot pursuit rule ostensibly specific to
misdemeanors, the Court must turn to a case concerning
neither misdemeanors nor hot pursuit. In Welsh v. Wiscon-
sin, we held that the warrantless entry of a drunk driver’s
home to arrest him for a nonjailable offense violated the
Fourth Amendment. 466 U. S., at 754. The Court relies on
Welsh for the proposition that “when a minor offense alone
is involved . . . officers can probably take the time to get a
warrant” to execute an arrest. Ante, at 9–10. The Court’s
determination that Welsh applies to all cases involving “mi-
nor” offenses—although we never learn what qualifies as a
minor offense—ignores that we have already declined to ap-
ply Welsh to cases involving misdemeanors because of the
“significant” distinction between nonjailable offenses and
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misdemeanors. McArthur, 531 U. S., at 336. And in any
event, we explicitly differentiated the circumstances at is-
sue in Welsh from “immediate or continuous pursuit of [a
person] from the scene of a crime.” 466 U. S., at 753; see
Brigham City, 547 U. S., at 405 (rejecting Welsh’s applica-
tion to a situation involving exigent circumstance of emer-
gency aid). Accordingly, as we have already held, “nothing
in [Welsh] establishes that the seriousness of the crime is
equally important in cases of hot pursuit.” Stanton, 571
U. S., at 9 (emphasis in original). The Court’s citation to
Justice Jackson’s concurrence in McDonald v. United
States, 335 U. S. 451 (1948), ante, at 11, n. 3, is similarly
inapt. That case involved entry for mere “follow[ ] up,” not
anything resembling hot pursuit. McDonald, 335 U. S., at
459.
The Court next limits its consideration of the interests at
stake to a balancing of what it perceives to be the govern-
ment’s interest in capturing innocuous misdemeanants
against a person’s privacy interest in his home. The ques-
tion, however, is not whether “litter[ing]” presents risks to
public safety or the potential for escape, ante, at 8, but
whether flight does so. And flight from the police is never
innocuous.
The Court ultimately decides that, when it comes to mis-
demeanors, States do not have as much of an interest in
seeing such laws enforced. But, as the Court concedes, we
have already rejected as “untenable” the “assumption that
a ‘felon’ is more dangerous than a misdemeanant.” Tennes-
see v. Garner, 471 U. S. 1, 14 (1985). This is so because “nu-
merous misdemeanors involve conduct more dangerous
than many felonies.” Ibid. At any rate, the fact that a sus-
pect flees when suspected of a minor offense could well be
indicative of a larger danger, given that he has voluntarily
exposed himself to much higher criminal penalties in ex-
change for the prospect of escaping or delaying arrest. Cf.
Illinois v. Wardlow, 528 U. S. 119, 124 (2000).
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The Court’s rule is also famously difficult to apply. The
difference between the two categories of offenses is esoteric,
to say the least. See Atwater, 532 U. S., at 350; Berkemer
v. McCarty, 468 U. S. 420, 431, n. 13 (1984) (“[O]fficers in
the field frequently have neither the time nor the compe-
tence to determine the severity of the offense for which they
are considering arresting a person.” (internal quotation
marks omitted)). For example, driving while under the in-
fluence is a misdemeanor in many States, but becomes a
felony if the suspect is a serial drunk driver. See, e.g.,
Alaska Stat. §28.35.030(n) (2020). Drug possession may be
a misdemeanor or a felony depending on the weight of the
drugs. See, e.g., Ohio Rev. Code Ann. §2925.11(C) (Lexis
2019) (outlining 50 potential iterations of unlawful drug
possession, some misdemeanors others felonies). Layer on
top of this that for certain offenses the exact same conduct
may be charged as a misdemeanor or felony depending on
the discretionary decisions of the prosecutor and the judge
(what California refers to as a “wobbler”), and we have a
recipe for paralysis in the face of flight. See Cal. Penal Code
Ann. §§486–490.1 (West Cum. Supp. 2021) (classifying
theft as an infraction, misdemeanor, wobbler, or felony de-
pending on the value of the stolen item).
The Court permits constitutional protections to vary
based on how each State has chosen to classify a given of-
fense. For example, “human trafficking” can be a misde-
meanor in Maryland, Md. Crim. Law Code Ann. §3–
1102(c)(1) (2019), contra, Tex. Penal Code Ann. §20A.02
(West 2021), and in Pennsylvania so can involuntary man-
slaughter, 18 Pa. Cons. Stat. §2504(b) (2015); contra, Ohio
Rev. Code Ann. §2903.04(C). The vehicular flight at issue
in this very case is classified as a felony in several States.
See, e.g., Fla. Stat. §316.1935 (2014); Del. Code Ann., Tit.
21, §4103 (2013). Law enforcement entities and state gov-
ernments across the Nation tell us that they have accord-
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ingly developed standards for warrantless entry in hot pur-
suit tailored to their respective legal regimes. See Brief for
Los Angeles County Police Chiefs’ Association as Amicus
Curiae 14–20; Brief for State of Ohio et al. as Amici Curiae
25. Given the distinct nature of each State’s legal code,
such an approach is more appropriate than the Court’s
blunt constitutional reform.
For all these reasons, we have not crafted constitutional
rules based on the distinction between modern day misde-
meanors and felonies. In Tennessee v. Garner, for example,
we held that deadly force could not categorically be used to
seize a fleeing felon, even though the common law supplied
such a rule, because at common law the “gulf between the
felonies and the minor offences was broad and deep,” but
today it is “minor and often arbitrary.” 471 U. S., at 14 (in-
ternal quotation marks omitted).
Similarly, in Atwater, we held that the general probable-
cause rule for warrantless arrests applied to “even a very
minor criminal offense,” “without the need to balance the
interests and circumstances involved in particular situa-
tions.” 532 U. S., at 354 (internal quotation marks omit-
ted). We explained that we could not expect every police
officer to automatically recall “the details of frequently com-
plex penalty schemes,” and concluded that distinguishing
between “permissible and impermissible arrests for minor
crimes” was a “very unsatisfactory line to require police of-
ficers to draw on a moment’s notice.” Id., at 348, 350 (inter-
nal quotation marks and alteration omitted).
The Court’s approach is hopelessly indeterminate in
other respects as well. The Court admonishes law enforce-
ment to distinguish between “dangerous offender[s]” and
“scared teenager[s],” ante, at 11, as if an officer can easily
tell one from the other, and as if the two categories are mu-
tually exclusive. See Dept. of Justice, Office of Juvenile
Justice and Delinquency Prevention, Offending by Juve-
niles (Mar. 31, 2020) (about 16% of serious violent crimes in
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the United States from 2007 to 2017 were committed by ju-
veniles). And police are instructed to wait for a warrant if
there is sufficient “time,” ante, at 16, but they are not told
time before what, how many hours the Court would have
them wait, and what to do if other “pressing needs” arise.
See Mitchell, 588 U. S., at ___ (plurality opinion) (slip op.,
at 9) (“[A]n officer’s duty to attend to more pressing needs
may leave no time to seek a warrant.”).
The Court tut-tuts that we are making far too much of all
this, and that our “alarmism [is] misplaced.” Ante, at 11,
n. 3. In fact, the Court says, its “approach will in many, if
not most, cases allow a warrantless home entry.” Ante, at
11. In support of that assurance, the Court lists several
“exigencies above and beyond the flight itself ” that would
permit home entry, notably when “the fleeing misdemean-
ant” will “escape from the home.” Ante, at 11, n. 3. If an
officer “reasonably believes” such an exigency exists,” the
Court says, “he does not need a categorical misdemeanor-
pursuit rule to justify a warrantless home entry.” Ibid.When a suspect flees into a dwelling there typically will
be another way out, such as a back door or fire escape. See
Cal. Code Regs., tit. 24, §§1113.2, 1114.8 (2019) (apart-
ments, floors of high-rise buildings, and many other homes
must have access to at least two means of egress). If the
officer reasonably believes there are multiple exits, then
surely the officer can conclude that the suspect might well
“escape from the home,” ante, at 11, n. 3, by running out the
back, rather than “slowing down and wiping his brow”
while the officer attempts to get a warrant. Scott, 550 U. S.,
at 385. Under the Court’s rule warrantless entry into a
home in hot pursuit of a fleeing misdemeanant would pre-
sumably be permissible, as long as the officer reasonably
believed the home had another exit. Question: Is that cor-
rect? Police in the field deserve to know.
But the Court will not answer the question, leaving it to
the officer to figure out in the midst of hot pursuit. The
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in judgment
answer apparently depends on whether the police “believe
anything harmful will happen in the time it takes to get a
warrant,” ante, at 11, n. 3, but again, what the police rea-
sonably believe will happen is of course that the suspect will
continue his flight and escape out the back. If that reason-
able belief is an exigency, then it is present in almost every
case of hot pursuit into the home. Perhaps that is why
Lange’s counsel admitted that “nine times out of ten or
more” warrantless entry in hot pursuit of misdemeanants
would be reasonable. Tr. of Oral Arg. 34.
III
Although the Fourth Amendment is not “frozen” in time,
we have used the common law as a reference point for as-
sessing the reasonableness of police activity. Garner, 471
U. S., at 13. The Court errs, however, in concluding with
the suggestion that history supports its novel incentive to
flee.
The history is not nearly as clear as the Court suggests.
The Court is forced to rely on an argument by negative im-
plication: if common law authorities supported a categorical
rule favoring warrantless entry in pursuit of felons, war-
rantless entry in pursuit of misdemeanants must have been
prohibited. That is wrong. Countless sources support the
proposition that officers could and did pursue into homes
those who had committed all sorts of offenses that the Court
seems to deem “minor.” Ante, at 8.
For example, common law authorities describe with ap-
proval warrantless home entry in pursuit of those who had
committed an affray (public fighting), 1 W. Hawkins, Pleas
of the Crown 137 (1716), and “disorderly drinking,”
W. Simpson, The Practical Justice of the Peace and the Par-
ish Officer 26 (1761). And the doctrine of “hue and cry” per-
mitted townspeople to pursue those suspected of “misde-
meanor[s]” if the perpetrator “escape[d] into [his] house.”
R. Bevill, Law of Homicide 162–163 (1799). In colonial
18 LANGE v. CALIFORNIA
ROBERTS , C. J., ,concurring
ROBERTS C. J., concurring
in judgment
America, the hue and cry extended to a “great diversity of
crimes,” including stealing livestock and revealing oneself
to be a Quaker. W. Cuddihy, The Fourth Amendment: Or-
igins and Original Meaning 244–246 (2009).
Finally, at common law an officer could “break open
Doors, in order to apprehend Offenders” whenever a person
was arrested for “any Cause,” and thereafter escaped. 2
Hawkins, Pleas of the Crown, at 86–87 (1787) (emphasis
added). The Court’s attempt to dispose of this awkward re-
ality in a footnote, ante, at 14, n. 5, is unconvincing. Flight
and escape both present attempts to “thwart an otherwise
proper arrest,” Santana, 427 U. S., at 42, and as noted, the
common law did not differentiate among escapees based on
the perceived magnitude of their underlying offense,
R. Burn, The Justice of the Peace 101–103 (14th ed. 1780).
Clearly the list of offenses that historically justified war-
rantless home entry in hot pursuit of a fleeing suspect were
as broad and varied as those found in a contemporary com-
pilation of misdemeanors. See also Macooh, [1993] 2
S. C. R., at 817 (concluding after review that at common law
“the right to enter in hot pursuit” was not “limited to arrest
for felonies”); Lyons v. R., [1984] 2 S. C. R. 633, 657 (recog-
nizing “right of pursuit” as a longstanding exception to
common law protection of the sanctity of the home).
In the face of this evidence, the Court fails to cite a single
circumstance in which warrantless entry in hot pursuit was
found to be unlawful at common law. It then acknowledges
that “some of the specifics are uncertain, and commentators
did not always agree with each other.” Ante, at 14. In At-
water, we declined to forbid warrantless arrests for minor
offenses when we found “disagreement, not unanimity,
among both the common-law jurists and the text writers
who sought to pull the cases together.” 532 U. S., at 332.
The historical ambiguity is at least as pervasive here.
Even if the common law practice surrounding hot pursuit
were unassailably clear, its treatment of the topic before us
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in judgment
would still be incomplete. That is because the common law
did not recognize the remedy Lange seeks: exclusion of evi-
dence in a criminal case. Collins, 584 U. S., at ___ (slip op.,
at 2) (THOMAS, J., concurring). It is often difficult to con-
ceive of how common law rights were influenced by the ab-
sence of modern remedies. And in this case we have no
guidance from history as to how our doctrines surrounding
the exclusionary rule, such as inevitable discovery, would
map onto situations in which a person attempts to thwart a
public arrest by retreating to a private place. See Nix v.
Williams, 467 U. S. 431, 443–444 (1984).
* * *
Recall the assault we started with. The officer was clos-
ing in on the suspect when he hopped the fence and stopped
in a yard. The officer starts to climb over the fence to arrest
him, but wait—was the assault a misdemeanor or a felony?
In Lange’s State of California, it could have been either de-
pending on the identity of the victim, the amount of force
used, and whether there was a weapon involved. See Cal.
Penal Code Ann. §245 (West 2014). How much force was
the man using against the teenager? Is this really the as-
sailant’s home in the first place? Pretty suspicious that he
jumped the fence just as the officer was about to grab him.
If it is his home, are there people inside and, if so, how
many? And why would the man run from a mere fight—
does he have something more serious to hide?
By this time, of course, the assailant has probably gone
out the back door or down the fire escape and is blocks
away, with the officer unable to give a useful description—
except for how he looks from behind.