This article originally appeared in The Recorder on August 18, 2021.

The most recent Supreme Court term yielded three eye-catching criminal cases interpreting the Fourth Amendment. At first glance, Lange v. California, Caniglia v. Strom, and Torres v. Madrid appear to announce sweeping new rules curtailing law enforcement’s ability to conduct searches and seizures. But, a closer look reveals each opinion was carefully drawn to limit its scope so that, as the Court itself acknowledges, these decisions are unlikely to have significant impact on the conduct of law enforcement or the fate of criminal prosecutions. One likely result is that by eschewing bright-line rules in favor of case-by-case analysis in which lower courts are directed to examine the totality of the circumstances to determine whether a Fourth Amendment violation has occurred, the Court has almost certainly increased the amount of Fourth Amendment litigation headed for the lower courts. 

In Lange v. California, the Court held that hot-pursuit of a fleeing misdemeanor suspect into his home is not a categorical exception to the Fourth Amendment’s warrant requirement. In that case, the police happened upon Mr. Lange when he was driving down the street honking his horn and loudly blaring music out of his open car windows. When the officers activated their lights, Mr. Lange continued to drive an additional four seconds to his home and park in his garage. The officers entered the garage and put Lange through a series of sobriety tests, all of which he failed spectacularly given his blood-alcohol level was three-times the legal limit. 

To justify the warrantless entry, the State relied exclusively on the officers’ “hot pursuit” of Lange, whom they suspected of the misdemeanor of failing to comply with a police signal. The Court held that hot-pursuit alone does not justify a warrantless entry into the home where the only crime suspected is a misdemeanor. Instead, the totality of the circumstances must be examined to determine if the warrantless entry was justified. 

However, the majority opinion and all three concurrences took care to list the numerous ways in which a police officer may still lawfully chase a misdemeanor suspect into his home sans warrant, despite a decision that appears to hold otherwise. All the justices agreed that any other exigency will suffice, including the suspect’s flight itself. Therefore, as long as an officer can reasonably claim that she feared the suspect would destroy evidence, harm himself or someone else, pose a threat to the officer, flee out the back door, or can posit any other reason that waiting for a warrant just will not do, the Fourth Amendment is not offended. 

The Court continued its vindication of the sanctity of the home in Caniglia v. Strom, in which it purported to do away with the community-caretaking exception to the warrant requirement in that context. After Mr. Caniglia asked his wife to end it all by shooting him with a handgun he kept in their home, she decided to spend the night at a hotel. When she could not reach him the next morning, she called the police and requested a welfare check. The police encountered Caniglia on his porch and convinced him to go to the hospital for psychiatric care, but only after promising not to confiscate his guns, a promise they promptly disregarded by entering his home and taking his two firearms. 

Caniglia sued, alleging the officers violated his Fourth Amendment rights by entering his home without a warrant. The defendants helpfully created a clear constitutional question by forgoing any reliance on defenses such as consent or exigent circumstances, instead staking it all on the community-caretaking exception to the warrant requirement. 

In a pithy page-and-a-half unanimous opinion, Justice Thomas concluded that the community-caretaking exception does not apply to entries into the home. However, he spared a few precious paragraphs to note that other exceptions to the warrant requirement – including the need to render aid to or prevent injury of someone inside – still apply. 

Four of the justices more than doubled the length of the majority opinion by producing three concurrences in which they outlined the numerous ways in which the police may still enter a home without a warrant to carry out any number of community caretaking functions. As in Lange, the Court’s concern seemed to rest with the categorical nature of the exception rather than the rationale underlying it. 

In Torres v. Madrid, the Court held that any application of physical force with the intent to restrain a person is a “seizure” under the Fourth Amendment. In that case, officers were attempting to serve a warrant for a woman suspected of violent crimes. They happened upon Ms. Torres, but concluded she was not the suspect they were looking for. They approached her anyway, and Torres, through a methamphetamine-induced haze, thought they were carjackers and sped away. The officers opened fire, letting loose 13 shots, two of which hit Torres. The intrepid Ms. Torres managed to continue her headlong flight, driving 75 miles to a different town, where helpful hospital personnel medevacked her back to the place from which she started so she could be easily arrested the next day. Torres sued the officers, alleging that their excessive use of force was an unreasonable seizure under the Fourth Amendment.

Chief Justice Roberts began his opinion with a lively exploration of eighteenth-century debt-collection practices before concluding that, at common law, any touching, no matter how slight, was enough to seize a person, even if that person was never actually restrained. The Chief Justice then reasoned that the same applies to a seizure under the Fourth Amendment, whether the touching is up-close-and-personal, or at a distance with a firearm. 

The Chief Justice then proceeded to distinguish a number of scenarios in which the holding he just announced does not apply. He noted that a seizure must involve actual restraint where it is of property rather than a person, it is by a show of authority instead of by force, and where the officer does not objectively intend to restrain the suspect. Finally, the opinion concluded that the seizure does not extend through the entire period of flight but lasts only as long as the application of force. The Chief Justice helpfully noted that this final limitation would likely curtail the extent of any civil damages or the amount of evidence that may be excluded in a criminal prosecution.

Justice Gorsuch filed a dissenting opinion in which he asserted that eighteenth-century bankruptcy law has no place in Fourth Amendment analysis. He further noted that the number of exceptions and qualifications the Chief Justice felt the need to include in his opinion rendered the analysis just a little bit suspect. 

Whether any of these cases will result in substantive changes to police behavior remains to be seen, but one certainty is that by trading bright-line rules for totality-of-the-circumstances analyses, the Court has given defense attorneys a broader canvass on which to craft motions to suppress and has increased opportunities for civil litigation. In keeping with the current trend, eighteenth-century common law was the nominal rationale for these decisions. However, it is worth pondering whether, in the wake of George Floyd and Breonna Taylor, even the most conservative justices are recognizing the need for courts to more closely supervise the conduct of law enforcement. 

The Court’s per curiam decision in Lombardo v. City of St. Louis, while not breaking any new ground, lends some weight to this speculation. In that excessive-force case, the Eighth Circuit affirmed summary judgment in favor of police officers who killed a suspect by kneeling on his back to subdue him after he attempted to commit suicide in his cell. The Court remanded the case because it appeared the circuit court had applied a per se rule that using a prone restraint on a resisting suspect is constitutional, rather than conducting a case-specific analysis as the Court’s existing precedent required.

The term’s Fourth Amendment decisions did not leave prosecutors completely in the cold. The Court consistently stressed that its seemingly broad holdings would apply only in exceptional cases, noting that lower courts should find that the vast majority of ordinary police conduct remains reasonable under the Fourth Amendment. Moreover, Justice Thomas’s concurrence in Lange, joined by Justice Kavanaugh, reiterates his mantra that the exclusionary rule does not apply to every Fourth Amendment violation. The Chief Justice also gave a nod to this concept in both his concurrence in Lange and the majority opinion in Torres.

While the Supreme Court’s recent term will certainly generate a wave of Fourth Amendment litigation, whether these opinions are all sound and fury signifying nothing remains to be seen.

On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in Los Angeles, San Francisco, and San Diego. Kirstin Ault is of counsel with the firm. She is a former Assistant U.S. Attorney who specializes in high-stakes criminal appeals and related civil appellate litigation. Find out more about Kirstin and the California Appellate Law Group LLP at www.calapplaw.com.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

This article is copyright © in the year of publication above.