Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, March 23, 2021

Certainty vs. Exigency: The Role of Modern Police Officers in Lange v. California

    When the Supreme Court recently heard arguments in Lange v. California, Justices were forced to consider how a police officer should react to emergencies in the field—perhaps their primary role in modern policing. The case concerns the arrest of Arthur Lange, who was convicted of driving under the influence of alcohol in Sonoma, California.[1] Lange was driving home while playing loud musing with his windows down and occasionally honking his horn; a California highway patrol officer followed him into his neighborhood.[2] Though the officer turned on his lights as Lange approached his driveway, Lange did not see him, pulled into the garage, and closed the door.[3] The officer used his foot to block the garage door from closing, and when it reopened the officer entered the garage, smelled alcohol, and arrested Lange.[4] Lange challenged the evidence collected in the garage as the fruits of a warrantless arrest; the California Court of Appeal held that this evidence was admissible under the “exigent circumstances” exception to the warrant requirement because the officer had probable cause to arrest Lange and was in “hot pursuit,” even if the offense Lange appeared to commit was merely a misdemeanor.[5]

        The Justice’s arguments often returned to the issue of when and how officers can determine that an emergency is genuine, and thus the exigent circumstances exception to the Fourth Amendment’s warrant requirement applies. For instance, Justice Gorsuch worried that creating too many categorical exceptions to the warrant requirement, including one that always allowed warrantless hot pursuit of a misdemeanant, generated limitless government authority contrary to the intent of the Fourth Amendment’s drafters.[6] But as Lange’s attorney noted, the Court has never required officers to be certain of an emergency before acting under the exigent circumstances doctrine.[7]

What’s the Emergency?

    In an era of widespread citizen distrust of officers, one primary police function that can still garner widespread support is emergency response. When a genuine emergency is present,[8] immediate police action is so beneficial to citizens that officers should be able to dispense with the warrant requirement. In contrast, where officers merely seek to avoid the warrant requirement to avoid inconvenience or some slight delay that would have no evidentiary or real-world consequences, the exigent circumstances exception does not apply.[9]

    But the Court has not offered a clear rule to distinguish these two situations.[10] If the exigent circumstance doctrine requires something less than an officer’s absolute certainty in an emergency,[11] just what mental state must officers possess before acting?

    Many cases in the last half-century seemed to suggest that officers must have probable cause to believe that the exigency exists before proceeding.[12] But more recently, the Court appears to have softened the required proof of exigency before the exception applies, even while insisting that judges evaluate the totality of the circumstances in each case rather than devising categorical rules.[13] Phrases like “reasonable suspicion” and “objectively reasonable basis to believe” in an emergency have dotted the jurisprudential landscape.[14]

Terry To the Rescue

    There is good reason, both in precedent and policy, to equate the quantum of suspicion of an exigency needed to invoke that exception to the Terry-style reasonable suspicion standard. First, regarding precedent, Terry used the phrase “reasonable grounds to believe”—the very phrase that both the Supreme Court and circuit courts have subsequently applied in exigent circumstances cases—when finding that the stop-and-frisk in Terry was constitutionally justified.[15] Terry’s requirement seems to be the closest analogue to any “reasonable belief” or “reason to believe” standard that might emerge as the touchstone for applying the exigent circumstances standard.

    Furthermore, applying a robust version of Terry’s reasonable suspicion standard makes good policy sense. A probable cause standard requires more certainty than is typically possible in responding to an emergency. Probable cause—the Constitutional standard for obtaining a warrant[16]—contemplates a traditional, fully-considered investigation under relatively calm circumstances. The exigent circumstances doctrine evolved to create a lower threshold for constitutional investigation when officers are forced to respond quickly to rapidly-evolving circumstances. To achieve that level of discretion in emergencies, officers’ suspicion of an emergency must be lower than the probable cause requirement that officers must meet in more deliberate, considered investigations.

    At the same time, any floor lower than a full-throated version of reasonable, articulable suspicion is misguided. Officers need at least that much suspicion that an emergency is afoot—even when acting in the spur of the moment—before the warrant requirement can be dispensed.[17] Officer must also not be permitted to create exigencies that can serve as pretexts for warrantless searches. The Court should expand the prohibition on officer-created exigencies to ensure evidence is excluded where there is objective evidence that officers plotted in advance to generate exigent circumstances or followed a department-wide policy or practice to excuse the need for warrants.[18]

    Terry-style reasonable suspicion is also appropriate because of its inherent flexibility to adapt to new circumstances or changing facts. Fourth Amendment reasonableness is not a static concept, but one that can evolve as new types of officer-citizen interactions arise. Officers will need that kind of flexibility—though always grounded in what they can articulate as a basis for suspicion—to respond to exigencies in real time.

    Reasonable suspicion can bear the weight of determining when exigencies are genuine, even though it is not a clear, bright-line rule. The exigent circumstances exception is based in common sense and reasonableness. [19] Apply Terry returns the exception to its roots and prescribes a sphere of constitutional action for officers that is easy both to understand and to justify. The Court should rely on this standard in cases like Lange to clarify the scope of the exigent circumstances exception.

 

[1] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[2] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[3] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[4] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[5] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[6] “[W]e live in a world in which everything is illegal, you put that together with the good faith exception and the—the fact that an officer is not being tested on his subjective intentions, which may be nefarious, but whether a reasonable officer could think as he did, and hot pursuit could be pretty tepid, it turns out, have we come pretty close to—doesn’t that sound a bit like the general war—world and –and the founding that the framers were so concerned about rejecting?” Transcript of Oral Argument at 105-06, Lange v. California, Feb. 24, 2021, No. 20-18

[7] “You already have built into the Exigent Circumstances Doctrine a less-than-certitude requirement.” Transcript of Oral Argument at 35, Lange v. California, Feb. 24, 2021, No. 20-18

[8] “Any warrantless entry based on exigent circumstances must of course be supported by a genuine exigency.” Kentucky v. King, 563 U.S. 452, 470 (2011).

[9] Although the “investigation of crime would always be simplified if warrants were unnecessary . . . the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393 (1978); see also Chapman v. United States, 365 U.S. 610, 615 (1961) (“Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.”).

[10] “Rather than providing a readily applicable definition, the U.S. Supreme Court has held that exigent circumstances should be examined on a case-by-case basis.” Di Jia et al., An Analysis and Categorization of U.S. Supreme Court Cases Under the Exigent Circumstances Exception to the Warrant Requirement, 27 C.R. L.J.  37 (2016).

[11] Transcript of Oral Argument at 35, Lange v. California, Feb. 24, 2021, No. 20-18

[12] See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750 (1984); Tennessee v. Garner, 471 U.S. 1, 3 (1985); Minnesota v. Olson, 495 U.S. 91, 100 (1990).

[13] See Riley v. California, 573 U.S. 373, 402 (2014) (“The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.”) (citation omitted).

[14] See, e.g., Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 615 (2019) (“The Supreme Court opinions describing the amount of exigency needed to support a warrantless search under the exigent circumstances exception to the Fourth Amendment’s warrant requirement have long varied. Some decisions speak in terms of probable cause, others require reasonable suspicion, and many others use amorphous, undefined phrases such as ‘reasonable to believe.’”); see also Richards v. Wisconsin, 520 U.S. 385, 394 (1997); Brigham City v. Stuart, 547 U.S. 398, 400 (2006); Michigan v. Fisher, 558 U.S. 45, 47 (2009).

[15] Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 625 (2019) (quoting Terry v Ohio, 392 U.S. 1, 30 (1968)).

[16] U.S. Const., amend. IV.

[17] “If law enforcement officials cannot even supply some ‘articulable’ suspicion, if they have only an ‘inchoate and unparticularized suspicion or hunch,’ they have no justification for conducting a warrantless exigent circumstances search or seizure.” Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 627 (2019).

[18] This would require significant revision of the Court’s decision in Kentucky v. King, under which officer-created exigencies only exist when officers “gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 464 (2011).

[19] As Justice Kavanaugh noted in oral arguments in Lange v. California, “the exigent circumstances doctrine [is] a pretty clear rule for officers because the exigent circumstances doctrine really, as I see it, tracks common sense, these are the kinds of cases and the kinds of reasons an officer would do this in the first place, want to go into the house without a warrant, especially escape of the suspect, threats to others, destruction of evidence.” Transcript of Oral Argument at 107, Lange v. California, Feb. 24, 2021, No. 20-18

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