Justices to debate warrantless search

WASHINGTON – Arthur Lange was 100 feet from his driveway when the California Highway Patrol officer behind him flipped on his flashing lights. Rather than stop, Lange turned toward his Sonoma County home, pulled into his garage and closed the door.

What happened over the next few seconds prompted years of litigation and a case to be argued Wednesday at the Supreme Court with sweeping implications for police power.

As Lange’s garage door descended on that night in October 2016, officer Aaron Weikert got out of his car and stuck his foot under it, triggering a sensor that sent it back up.

“Did you not see me behind you?” the officer asked Lange, who said he had not. As Lange spoke, Weikert smelled alcohol on his breath. A test revealed Lange’s blood-alcohol content was three times the legal limit, and he was charged with DUI.

The question at the heart of the exchange: whether Weikert was on constitutionally shaky ground when he entered Lange’s garage without a warrant.

Police are generally required to have a warrant to enter someone’s home under the Fourth Amendment’s prohibition on “unreasonable searches.” Courts have allowed exceptions when an officer is in “hot pursuit” of a suspect believed to have committed a felony. In Lange’s case, police could point only to his failure to stop, a misdemeanor.

Though the difference may seem academic, civil liberty groups say the case could vastly expand police powers because of the breadth of misdemeanor charges. Misdemeanor crimes can be serious, but they also include littering, jaywalking and defacing dollar bills.

Five state supreme courts have held that a misdemeanor pursuit justifies a warrantless home entry, according to Lange’s lawyers, and three state courts and two federal appeals courts said the issue must be reviewed on a case-bycase basis.

“The courts are all over the place on this,” said Larry James, general counsel for the National Fraternal Order of Police, who filed a brief in the case supporting Weikert. “The question is, should the U.S. Supreme Court lay down the law of the land?”

Fourth Amendment questions have divided the Supreme Court in unusual ways. Liberal Justice Stephen Breyer has joined conservatives. Last fall, Justice Neil Gorsuch called a ruling in Vermont allowing game wardens to peer inside a garage without a warrant an “error.” Gorsuch, appointed by President Donald Trump, was joined by Justices Sonia Sotomayor and Elena Kagan, both appointed by President Barack Obama.

Lange’s case comes to the court at a moment of tension between police and communities of color after the death last year of George Floyd, a 46-yearold Black man who was pinned under an officer’s knee. The officer, Derek Chauvin, is charged with seconddegree murder and manslaughter. The incident and others like it prompted nationwide protests and some riots over the summer, forcing a national discussion about racism and police use of force.

Some observers said expanding the circumstances under which a police officer may enter a home without a warrant could exacerbate the fraught relationship.

J. SCOTT APPLEWHITE/AP FILE The Fourth Amendment, which prohibits unreasonable searches and seizures, has divided the Supreme Court’s justices along unusual lines.