Can a Misdemeanor Count as an “Emergency” for Purposes of Skipping the Warrant?

Posted in: Criminal Procedure

One of the Supreme Court’s cases this term is California v. Lange. Lange asks whether police, lacking a warrant but unable to obtain one in time, may enter a home while in pursuit of a person they have probable cause to believe committed a misdemeanor.  In other words, can police invoke the exigent circumstances exception to the warrant requirement when dealing with a misdemeanor? Precedents offer some guidance, but the question fundamentally calls for a decision about whether the Fourth Amendment reasonableness inquiry is best understood as purely procedural or substantive as well.

Facts of the Case

The story of Arthur Gregory Lange began when a police officer observed Lange on the road committing traffic violations. The officer waited a while to get his bearings, following Lange the whole time, and then signaled a stop. Lange did not yield, which is a misdemeanor, and the officer followed Lange onto the latter’s driveway. Lange drove into the garage, and the garage door began to close. The officer got out of his vehicle and stuck his foot in front of the sensor, causing the door to reopen.

The officer entered the garage and began talking to Lange. The officer then went onto arrest Lange for driving while under the influence of alcohol (DUI). Prior to his trial, Lange brought a motion to suppress the evidence of DUI on the ground that the officer acquired it by violating the Fourth Amendment (entering the garage without a warrant). The government’s response was that exigent circumstances made it impractical to seek a warrant. Lange’s reply was that when the crime under investigation is a misdemeanor rather than a felony, police cannot invoke the exigent circumstances exception to the warrant requirement. By way of background, misdemeanors are typically crimes that carry a sentence of no more than a year in jail, while felonies carry a sentence of over a year in prison or the death penalty. Due to the difference, courts could recognize distinct consequences to probable cause determinations relative to the distinct categories of crime.

Precedents That Might Help

First, Payton v. New York stands for the proposition that police must obtain an arrest warrant before entering a person’s home to carry out an arrest. Payton did not involve any alleged exigent circumstances, but it established a baseline right to demand an arrest warrant as a condition of police entering the home to arrest a suspect on the basis of probable cause.

Beyond Payton, we have case law that offers some guidance on the question presented in Lange. In Welsh v. Wisconsin, police were called to an area regarding someone who had been driving erratically. When police arrived at the scene, they found a vehicle but no suspect. They checked the car’s registration and headed over to the suspect’s home. Upon arrival, police entered the house without a warrant (and without consent), found the suspect, and arrested him for driving while under the influence of an intoxicant. The suspect, Edward G. Welsh, moved to suppress, on Fourth Amendment grounds, the evidence obtained upon entering his home, and Welsh succeeded at the United States Supreme Court, which held that because DUI in Wisconsin was a mere violation (not a misdemeanor or a felony), it violated the Fourth Amendment right against unreasonable searches and seizures to enter his home without a warrant.

Welsh favors Lange in this case. As in Welsh, the officer here was investigating relatively minor offenses, misdemeanors, and therefore should have sought a warrant rather than relying on an exigent circumstance. As in Welsh, there was a real exigency, the concern about losing blood-alcohol-content evidence in the time it would take to obtain a warrant. And yet the Court refused to allow police to invoke exigent circumstances for a warrantless home entry to investigate a minor offense. When the act is minor, in other words, perhaps there is no exigency that excuses the warrant requirement.

The government could distinguish Welsh, however, by observing that that case involved a violation, which is far less significant than a misdemeanor, the sort of offense at issue in Lange. The category of misdemeanors can include such crimes as simple assault (which in Pennsylvania means physically attacking another person with intent to cause harm or physical injury), reckless driving, communicating threats, assault with a deadly weapon, assault inflicting serious injury, violation of a restraining order, and sexual battery. At the same time, some states place into the felony category disorderly conduct, vandalism, and counterfeiting. The government could accordingly argue that misdemeanors can be very serious while felonies can be rather trivial. Both categories designate crimes, and police should be able to enter a home on the basis of probable cause to believe that someone who committed a crime or the evidence of that crime are present inside and might be jeopardized if police took the time to seek a warrant. A “violation” is more akin to a civil matter where nothing should excuse the warrant requirement.

One could, of course, argue that sometimes very serious matters come under the category of “violation.” After all, driving while under the influence of alcohol is arguably a very serious offense that risks maiming and killing others on the road, and yet Wisconsin classified it as a violation rather than as a misdemeanor or a felony. And the Court took the classification seriously rather than attending to the specific offense and whether the Justices believed it ought to trigger the exigency exception. If murder were classified as merely a violation in Wisconsin, then presumably, the officer there would not have been allowed to enter the house without a warrant.

Form Over Substance

Many years ago, I wrote an article, The Qualitative Dimension of Fourth Amendment Reasonableness, that discussed cases like Welsh and concluded that the Supreme Court ought to look at the substance of laws more frequently in interpreting and applying the procedural right against unreasonable searches and seizures. In other words, in Welsh, the Court ruled that a warrantless home entry violated the Fourth Amendment because the offense at issue was a mere violation and therefore not serious enough to provide an excuse for the warrant requirement, even if evidence would have been lost if police had sought a warrant. I thought it was sensible for the Court there and in a few other cases to take the seriousness of an offense into account in judging the constitutionality of police measures. And one way of doing that is looking at the category of offense into which the conduct falls. If it is just a violation, get a warrant (or don’t bother doing the search and risk losing the evidence).

The main problem with the Court’s particular way of taking substance into account is that it becomes relevant only when police will, for some reason, have a hard time getting a warrant. So long as police have a warrant, they can go right into the house to find the evidence or the suspect (or both), no matter how trivial the offense in question might be. So what does the status of the offense as a violation or a misdemeanor buy you? Not much. It means that instead of the officer making an assessment of probable cause, a judge will make that assessment based on the sworn statement of the (same) police officer. In other words, all you get from the decision to insist on a warrant is a different decisionmaker doing the same assessment. In addition, magistrates tend to defer to the officers seeking warrants. It is therefore as though you have the right to hear the police officer say “probable cause” and then hear the echo of the police officer say “probable cause,” as well. My article proposes that while the Court has attempted to go to substance, it has much of the time used a purely procedural vehicle for doing so. If the Court really believes that a misdemeanor (or the particular misdemeanor) is not important enough to justify the invasion of a person’s home, then it ought perhaps to consider holding that the police officer in Lange should not have entered Lange’s home, period, with or without a warrant. I am not holding my breath.

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