Courthouse Steps Decision Webinar: Lange v. California

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's virtual events. This afternoon, June 24, we discuss the Supreme Court's decision in Lange v. California. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us a really excellent panel to discuss the decision. Mr. Larry James is the Managing Partner at Crabbe, Brown & James, LLP. He's also served as General Counsel at the National Fraternal Order of Police since 2001.

 

      Mr. Clark Neily is the Vice President for Criminal Justice at the Cato Institute and an Executive Committee Member of The Federalist Society's Criminal Law and Procedure Practice Group.

 

      Mr. Vikrant Reddy is the Senior Research Fellow at the Charles Koch Institute and he previously served as a Senior Policy Analyst at the Texas Public Policy Foundation where he managed the launch of the TPPF's National Right on Crime Initiative in 2010. He's also an Executive Committee Member of The Federalist Society's Criminal Law and Procedure Practice Groups.

 

      After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for that portion of the event. If you do have a question, please enter it into the Chat or the Q and A feature at the [inaudible 01:41] of the screen. With that, thank you for being with us today. Mr. Reddy, the floor is yours.

 

Vikrant Reddy:  Thanks so much, Evelyn. It's a real treat to be here talking about this case. And I just want to thank The Federalist Society for the opportunity, and also I want to thank my colleagues in the Criminal Law Practice Group.

 

      This is kind of a fun case. It's interesting. It's one of these cases where I think the immediate decision really just affects Mr. Lange, but I think it's got all of these offshoots and long-term ramifications about broader policy and cultural matters in society that are just fascinating to talk about. And we’ll dig into all of that, but what I want to do first is just talk about the facts and the background behind this case and then I'm going to leave it to Clark and Larry to really get into what was decided and what the opinion said yesterday.

 

      So, the case starts in a really fun place -- Sonoma, California. I'm sure many people have visited. You can have a good time there, but while you're having a good time and drinking all that delicious wine, you shouldn't be driving. Nevertheless, that's exactly what Mr. Lange was doing. He was driving drunk, and he was cruising down the road, and he was blaring his horn. He was playing his music extremely loud and a police officer noticed this. Now, he didn't necessarily notice that Mr. Lange was drunk, but he noticed the horn blaring, he noticed the loud music, and sort of felt that from his time as a police officer -- he thought something suspicious was going on here, and he started following Mr. Lange.

 

      So, he follows Mr. Lange who drives right up towards his house. Now, the police officer begins to flash his lights and indicates, shortly before Lange gets to his home, that he needs to pull over. And there seems to be no dispute about the fact that he was indicating for Mr. Lange to pull over, and yet Lange pulls into his garage. And the police officer wanders up to the garage, and it's got one of those sensors, so instead of allowing the garage door to close, he waives his foot underneath, allows the garage door to pop back open, and he goes inside to have a conversation with Mr. Lange. And, of course, the first thing he smells is the overwhelming smell of alcohol.

 

      In fact, Mr. Lange was three times above the legal limit. So, he got busted for DUI and then also for a minor noise infraction. But Mr. Lange went to court and challenged the evidence that was collected inside the garage because he said, "That police officer entered my home without a warrant." Now, of course, the response from the police officer was, you don't always need a warrant to enter somebody's home. There are various exceptions that allow people to -- that allow police officers to enter a residence, and one of those exceptions is exigent circumstances, meaning, a chase. If somebody is trying to evade arrest, if they're trying to get away from you, it's not a game of tag, they can't simply say, “oh, I'm home now, you can't get me.” It doesn't work that way. That's an exigent circumstance.

 

      Now, here's where things get really interesting – it’s Lange's counter-argument to that point. Lange says, yeah, exigent circumstances do exist. They are recognized in law. But not every single chase or evasion of arrest counts as an exigent circumstance. Some do, maybe even many do, but there are plenty of exceptions. For example, if the crime that the person is suspected of is merely a misdemeanor rather than a felony, do we really want to authorize police officers to enter people's homes without warrants simply because they're going after somebody for some minor misdemeanor?

 

      I mean, we have thousands upon thousands of criminal laws in this country for all kinds of minor things—using the wrong lightbulb or toilet or what have you. The idea that you could have a police officer enter your home just because you're suspected of violating some kind of minor misdemeanor, it seems absolutely ludicrous. This is Lange's argument.

 

      Of course, the police officer counterargues that, look, evading arrest is evading arrest. The law -- the state has an interest in ensuring that people don't run off from police officers whenever we're asking them to pull over. And this, essentially, is the essence of the dispute here – it’s whether or not you can establish a categorical rule that, in these cases, a high-speed chase or trying to track somebody down who's evading arrest is always an exigent circumstance that allows a police officer to enter the premises without a warrant, or whether it may just be something you have to evaluate on a case by case basis. This is what the Court had to ultimately decide.

 

      And they heard the argument, I guess, last February -- it was February 24 -- the three of us were on a Federalist Society call talking about the argument, and they issued their opinion yesterday. And Clark, I'm going to turn it over to you to talk about what exactly the Court decided about that question.

 

Clark Neily:  Well, thanks, Vikrant, and thanks to Larry. It's good to get the band back together. I think this will be a really fun discussion. It is a fun case. It's a really -- an interesting and fun case. But there's a lot at stake here, too, because we don't really know exactly how many misdemeanor arrests there are in the United States every year, but it appears to be north of 13 million. And about 80 percent of all arrests are for misdemeanors, so it actually comes up a lot.

 

      Now, how many of those involve somebody fleeing the officer is a separate question. But certainly, plenty of people in America find themselves being arrested for alleged misdemeanors, and so it's an issue that has real significance. Now, Justice Kagan, in writing the majority opinion, starts where one ought to start.

 

      First, with the question of whether the Court's previous case law -- obviously, the text of the Fourth Amendment does not supply a clear answer here. It simply prohibits unreasonable searches and seizures. And so it's not granular enough to tell us -- or to provide an answer in this case just based on the text of the Fourth Amendment. So where do you go to next? Well, you go to the Court's case law, and you look there to see if the question is answered. Justice Kagan and the other justices that joined her opinion conclude that the existing case law does not answer the question, although Chief Justice seems to think that perhaps it does, or at least provides more guidance than Justice Kagan seems to believe.

 

      Next question, is there a clear common law rule? Can we look back through history and see how courts handled this question in the past, and does that supply an answer? And again, Justice Kagan reviews the past holdings of other cases, including in England and commentators, and concludes that history does not supply a clear answer to this question. Then you get to what I think is really the interesting part, which is, where then do we start? Do we start -- what value do we start with? Do we start with the importance and the value of facilitating law enforcement on the one hand? Or do we start with the importance and the value of the sanctity of the home on the other?

 

      As a constitutional litigator, I think this is a really fascinating and incredibly important question because you can play a little bit of a game here, basically, in the way that you assign the burden. Which party has the burden, in effect, of vindicating its value or its interests? Now, normally what the Supreme Court does is it grants the legitimacy of whatever it is that the government is doing. In most constitutional settings, in effect, there is a presumption of legitimacy. The government gets to do whatever it wants, and it’s incumbent upon the citizen to demonstrate that the government cannot do the thing that it wants to do in a particular case. Justice Kagan actually does the unusual thing here, which is to start with, essentially, the presumption is in favor of the citizen -- not the presumption, but the starting value is the one that is being advanced by the citizen, which is what?

 

      It's the sanctity of the home. It's having a place where police cannot intrude without getting -- either getting a warrant from the neutral magistrate or demonstrating the existence of truly exigent circumstances. But the default setting — and I strongly agree with this — with Justice Kagan is the sanctity of the home, and it's incumbent on the government to demonstrate that some exception to the Fourth Amendment permits the officer to enter the home without a warrant.

 

      And in Justice Kagan's view, and the view of the justices that joined her opinion, that showing was not – well, the case is remanded to the lower court to apply the new standard announced by the majority. But Justice Kagan finds that there is no reason to impose a categorical rule that flight, or the attempt to flee, from a pursuing officer is always, or nearly always, a sufficient exigency to permit a warrantless entry. And that’s going to be the big disagreement between Justice Kagan on the one hand and the Chief Justice in his concurrences. I'm sure Larry will tell us about it in a moment.

 

      Essentially, what Justice Kagan does is say, look, we start with the sanctity of the home and the requirement the Fourth Amendment imposes, which is to either get a warrant or demonstrate the existence of truly exigent circumstances. And flight alone is not a sufficiently exigent circumstance to justify a warrantless entry as a general rule. Instead, it is going to be — or should be treated as — one factor among others.

 

      There are any number of factors that can create exigency, and they can operate together. There can be the seriousness of the alleged offense. The risk to -- or potential risk to the public or to the officer who wants to gain entry to the dwelling. The possibility of destruction of evidence. The possibility that the fleeing person would be able to go inside the home and then disappear in some way. So, to summarize Justice Kagan's opinion, we have, basically, an analysis that says the text of the Constitution does not supply an answer, our prior case law does not supply an answer, and looking back at the available common law historical sources doesn't supply an answer.

 

      What we do know is that the Fourth Amendment was designed to protect the sanctity of the home, so that's the value that we start with, and we require the government to demonstrate a sufficiently compelling reason to enter the home without a warrant. And they may actually -- the case, as I said, is to be remanded. It's remanded to lower courts to apply the new standard. So, it is possible that the government and the police officer will be able to make the case that there was a sufficiently exigent situation to justify the entry into the -- Mr. Lange's garage.

 

      But that will be a case-specific inquiry that will be undertaken according to this framework that the Court announced today, which is that when somebody flees a law enforcement officer who is trying to arrest them for a misdemeanor, the fact of the flight is simply one factor among others that may or may not create exigency. So, the case is not over. We don't know exactly what the outcome is going to be, but we now know what rule, what framework will be applied by the lower courts to decide whether or not this particular arrest was valid under the Fourth Amendment.

 

Larry H. James:  So, good afternoon, everyone. My name is Larry James. I'm General Counsel for the National FOP. It's a privilege and pleasure to be with the gang again. And thanks to The Federalist Society for convening this.

 

      First of all, there are over 800,000 law enforcement officers in the country with arrest powers, and they're making in excess of -- as Clark said -- over 13 million arrests a year. I think the only thing we can take from this case — and I think this is why the Chief Justice wrestled with this — is the Court said there is no absolute rule that in a misdemeanant pursuit -- that you have the authority to go in and search a home or invade a home without a warrant. I think the Chief Justice really made that point of saying, look, that if you're pursuing someone, that in and of itself is grounds to go into the home without a warrant.

 

      Justice Kavanaugh and all the concurrences -- they took a different slight, but at the end of the day, they all agreed. And I think the general consensus was, how will you -- as Clark said, what is the standard to articulate even going back to the trial court? And I'm not sure the trial court is going to have any greater guidance, and maybe they'll take additional evidence to try to narrow that point.

 

      I was asked what my thoughts were to take away from this case in light of the majority opinion, the concurring opinion, and particularly the Chief Justice's take. And I said, when the situation warrants immediate action, take it. If it doesn't warrant immediate action, get a search warrant. And I would stop there because I think the intriguing thing -- if we were to ask each other, if we're the trial judge now, in light of this decision, how would we rule? So, I kick it to our team. Would we sustain the conviction? Would we grant the motion to suppress under these circumstances?

 

Clark Neily:  Vikrant, what do you think?

 

Vikrant Reddy:  I'm still not sure. You know, this -- Larry challenged us just like this when we did this back on February 24 -- if we were the Court, how would we have decided this case? I'm still not entirely sure. I actually like the answer that you gave, Clark, when Larry challenged us like this back in February, and you said, look, whatever the answer is, it has to somehow recognize the centrality of liberty in the American legal system.

 

      That doesn't mean it's the only value we have in the American legal system. There are other ones. But liberty is a value, and it's a very important value. Not every society is constructed that way. There are plenty of societies, even developed Western societies, that don't really place liberty very high on the value list, but America does. And the judge, who ultimately has to hear this case again, I just hope, in some way, recognizes that. And I do think, by the way, that the Supreme Court recognized that and I even identified this line in the Chatbox that really stood out to me from the Court's opinion today where I think the Court was trying to explain that while they have a lot of sympathy for the needs of law enforcement, the value of liberty -- it has to be the guiding force behind how this case is analyzed and decided.

 

Clark Neily:  Yeah, you know, I'm so glad that Larry asked this question because it gives us an opportunity to discuss something that I think is very challenging, and that is if you're going to try to answer this question as conscientiously as possible, if you're the trial court judge, is it incumbent on you to attempt to place yourself behind the veil of ignorance about what the result of the warrantless entry was. Right? Because on one hand, we can imagine a number of counterfactuals. What if the officer had entered the garage and discovered a body, or multiple bodies, or a bunch of people being held prisoner who were kidnapped?

 

      It's very difficult, I think, for most people to imagine that under circumstances like that where it's a very close call, that you, as a trial judge, are going to rule in a way that could result in the exclusion of that evidence and the loss of opportunity to convict this person who is a kidnapper or a murderer. On the other hand, we could imagine a situation where the warrantless entry into Mr. Lange's garage discovered nothing, and I would be inclined under those circumstances to say, look, this guy was playing his music loud and you tried to pull him over for that. He may or may not have seen you when you activated your lights, and for that reason, you get to storm into this guy's home without a warrant? I don't think so. And, of course, the real facts of the case put us kind of in between somewhere --

 

Vikrant Reddy:  Right.

 

Clark Neily:  -- which is that this guy was -- appears to have been seriously impaired. At three times the limit, it's hard to imagine he wasn't a hazard to other people. And, of course, people are -- thousands of people are killed every year by drunk drivers. And so this is a genuine public safety concern. So, I'm struggling with it. And I think that -- I suppose the answer to my own question is that you probably should try to get behind the veil of ignorance if you can. And I think if I could do that, I would be inclined to say that this was an improper -- that this was a Fourth Amendment violation because the circumstances that we knew about at the moment when the line was crossed, so to speak -- when the officer made the warrantless entry into the garage, I just don't think that the conduct in question was serious enough that it should support allowing police officers to barge into people's homes.

 

      And there were some great descriptions of situations from the National Association of Criminal Defense lawyer amicus brief in support of the cert petition. And there have been some real tragedies where police have stormed into a home in pursuit of suspected misdemeanants and -- I forget if there were any deaths, but there was one case where they pursued a college student into an apartment because they observed him relieving himself on the patio and a huge brawl ensued. I believe the resident -- the person that lived in the apartment—who was the boy's -- the defendant's girlfriend—pulled a gun. So, there are real concerns on both sides and it's a hard question. And I don't know what the outcome is going to be, but I suspect that it depends a lot on whether the judge decides and succeeds in putting him or herself behind the veil of ignorance.

 

Larry H. James:  So, [Inaudible 21:10] things -- number one, the case doesn't change fleeing felons in the pursuit [Inaudible 21:14] and [21:18]. That’s number one. Number two, I think this case is -- if I'm looking at it, I need additional facts because the facts of the case, I believe, are not complete. You look at a situation -- was the individual weaving? What was the danger? Let's expand on whether Lange actually saw the car, saw the lights and ignored it, and went back fleeing and caused the risk and a safety situation.

 

      I think the other thing is the Court made it implicitly clear that this is not an absolute, as the trial court had determined. So, from that standpoint, I agree with the Court to send it back. And I think for that reason, it has great weight that if there are those jurisdictions that want to say a fleeing misdemeanant, it's an absolute you can follow him or her into the car. So, I think that's a safeguard that the Court imposes. And I think this idea of the minor misdemeanant versus the minor felonies conviction -- how do you distinguish those?

 

      But I think the Court gave some clear direction of saying, go back, because lawyers are going to file their motion to suppress. They're going to hold the hearing, and I think you can probably establish a sufficient record that says, under these circumstances, the police officer was not racially profiling or do anything illegally or invading the privacy of the home. So, I looked at it as a little bit more simplistic. As I said earlier, if it's an immediate situation that poses a danger, the officer assesses that risk on the basis of his or her training, his or her experience, and says, I need to take action.

 

      And I think that in this situation, there were a couple additional circumstances when the officer put his foot, and the garage door goes up, he has a conversation, then Lange steps outside. And it's at that conversation that the arrest is made and things of that sort. And we really didn't have any discussion on that point. But I think what it goes back to is, officers, use your judgment, use your experience, use your training. One of the examples -- I shouldn't say one of the examples, but usually, when I have these cases on these type of procedural grounds, I'll take a sample of officers, and I'd say, what would you have done in this case? And I had six officers, and they were split fifty-fifty.

 

Vikrant Reddy:  You know, Larry, one thing I want to note, I like your immediate need versus non-immediate need formulation better than I like the felony misdemeanor formulation, which I can't remember if Kagan writes about this in her majority opinion, but during argument, I definitely remember her bringing up the point that this felony-misdemeanor thing that we're all harping on is not a very useful rubric. There are some very, very serious felonies, like Bernie Madoff-type things, that are worth millions, even billions, of dollars. But they would not justify a police officer entering a home.

 

      On the other hand, there are misdemeanors, like domestic violence, which -- it's a mere "misdemeanor," and yet probably, absolutely does justify a police officer entering a home in order to protect the life of the person behind the door. So, the felony-misdemeanor fissure, it's just -- I don't find it a very useful construct. The one you're putting together seems a little bit more sensible to me.

 

Larry H. James:  And I thought -- I was looking for the Court to say something like that because if you use the immediacy of it, you can ask the question -- and you ask the officer, "Officer, if you had not taken action, what was the potential risk and harm of going and getting a warrant?" There was nothing about evidence. This was simply an erratic -- at the worst day driving -- the individual was driving, and at that point, the risk and immediacy had been terminated. So, I like that -- that's something I just came up with saying -- as I'm telling our officers, this is the criteria that I was imposed on myself.

 

Clark Neily:  So, there’s a -- I think there's a very interesting kind of elephant in the room here, and that is, -- to pick up on what Vikrant said a moment ago -- misdemeanors, even if we were satisfied with the felony versus misdemeanor dyad -- which we're not -- misdemeanors run the gamut from really serious conduct that presents a real threat to individuals and or to society all the way to the utterly preposterous. Justice Kagan gives some examples in her opinion that include littering on a public beach and artificially coloring live chicks or rabbits.

 

      And sometimes a police officer will be attempting to arrest somebody for a serious misdemeanor, like drunk driving or assault, and other times they might be trying to arrest them for something completely preposterous like smoking marijuana, which I understand happens a lot. And that, I think, is sort of the -- I suggested there was an elephant in the room because we don't always know whether there will be anything at stake for society in ensuring that the officer is able to make the arrest.

 

      And we also know that there may be some instances where what's really going on is the officer's kind of initiating a fishing expedition. What they're really doing is they're wanting to investigate and see if -- for example, if I can get close enough to this guy, will I smell something on his breath or in his car that will then lead to something more substantial than he was playing loud music?

 

      I mean, imagine if this officer had tried to call and get a warrant to enter the garage because the guy was playing loud music. One can only imagine the judge would say, "Are you kidding me?" Especially if it was two in the morning, which it wasn't, but what if – “you got me out of bed to get a warrant because some guy was playing his music loud? Go find some police work to do.” So, I think that's another point here that's worth mentioning is that we know that in many of these instances if the police are not able to gain entry in the residence to effect the arrest, they're just going to go away. They're not going to pick up the phone. They're not going to try to get a warrant because they know that the conduct at issue is so ridiculous that they just basically wanted to write a ticket, maybe make an arrest, maybe get some credit for making arrests or writing a ticket.

 

      But if it's going to be a hassle, if they're going to have to involve the judiciary, they're just going to let it go. Now, that's the theory. I think the reality is that virtually every police officer is going to take Brett Kavanaugh up on his offer. I think it was barely a tacit officer to just go ahead, make the warrantless entry, don't worry about it, because at one point, Brett -- in his short concurrence, Brett Kavanaugh says -- Justice Kavanaugh says that -- he notes that the -- Lange's counsel conceded that nine times out of ten there will be a sufficient exigency to excuse the lack of a warrant.

 

      I view Justice Kavanaugh's concurrence as virtually an invitation for police to just simply make the entry every time and don't worry too much about it. We will usually have your back. That, I think, is likely to be the practical result of this case. Call me simple, but my guess is that's what it will be.

 

Larry H. James:  That is a jumping-up-and-down disagreement [Laughter]. Because I think the majority of officers -- I think we're -- that's why I started out -- I said we had 800,000 officers and over 13 million arrests a year, give or take a few. And I think if you have those situations where an officer has run amuck, and there's a motion to suppress, trial judges, more often than not, are going to suppress that evidence. They're not going to let it in. That's number one.

 

      Number two, you may have these circumstances – in your example, the officer smells marijuana on someone, or he or she's running in the beach area, and the individual they observe is intoxicated. An individual goes to get in their car, and they have a pretty good probable suspicion that the individual's incapable of driving and should intervene in those sort of things. I guess I have confidence in our officers, and I take what this case has said, and I think it helps us and it gives guidance that there's not an absolute -- irrespective of what Kavanaugh said -- that you cannot under these many circumstances go in and have a warrantless search. So, that's the takeaway from that.

 

      I think as -- it'll be interesting as we go back to the trial court. And maybe we should do this when the trial court holds its evidentiary hearing or rehearing on these points. And I think as put on our seminars around the country, before even this case came out when it first came up, we have said, probably most officers would not have done what this officer did, irrespective of whether it being legal or not.

 

Vikrant Reddy:  Hey, Larry, let me ask you a question about the practical consequences of this case. I have a speculation on how something like this plays out, but you would know because you're in this position. There are lawyers who read these opinions, and they try to identify what the rules are for cops, and they try to incorporate this stuff into training manuals, into videos, things like that. My sense is that there's a bunch of guys like you, a bunch of lawyers, who are reading this opinion and going, there really isn't a rule that comes out of this opinion. There's not something that I can provide to officers as guidance.

 

      And because you can't provide something as guidance, it may be -- and this is where I really start to speculate, you may -- and it's kind of the opposite of what Clark is speculating on -- you may actually get more police officers saying, well, because there's no bright rule here, I should probably just enter homes without a warrant a little less often because I don't want to get into any kind of trouble. And so maybe you actually have less warrantless entries, which, from some people's perspective, including mine, might be a good thing. But what do you think? Like I said, I spun up this huge story. Does it sound plausible to you?

 

Larry H. James:  Yeah, so what we do is I try to round-table and we have a listserv of about 120 lawyers with which we share these opinions. And on this situation, I think what they would have said is, we need some more facts to determine whether we would have put in our handbook this is something that you don't do. But I think that there is a genuine effort, particularly with the attack on qualified immunity and Fourth Amendment litigation and whether someone violated someone's Fourth Amendment rights, that on these kind of, really, minor misdemeanant type things, you just don't need that hassle, you don't need that exposure, and there's really nothing at risk.

 

      So, if you ask yourself at the end of the day, what was at risk if the officer had just walked away? What was the immediacy of the officer's decisions to continue? There really weren't any. And so, I would say on that type of analysis, we would probably sustain the motion to suppress. And that's what we would say to officers. If you're running into a situation where there is no immediacy. There is no harm. There is no domestic violence. There is no potential that there is an individual fleeing after robbing something or having drugs that they can destroy. Those are those situations that tilt toward going in. Does that make sense?

 

Vikrant Reddy:  Yeah, I think so.

 

Clark Neily:  You know, Larry, it's funny that you and I have almost in some ways switched positions because my point, actually, was simply that I think that it is a reasonable -- I'm not suggesting that police would just willy-nilly barge into people's homes under circumstances where they wouldn't have otherwise. What I meant to suggest was that I sympathize with the officer who feels that it is both suspicious and socially unacceptable to flee a police officer. Right?

 

       Now, the majority points out there can be situations where that's not suspicious, or at least not concerning, but generally speaking, I actually do think it's both suspicious and problematic for people to flee a police officer. And so what I meant to convey was that an officer who feels that, for whatever reason, they need to follow that person onto the property, into the home, into the garage, whatever it might be, I think, and now feel pretty confident, that they will probably be vindicated by the judiciary if it comes to that because the -- I would say, even Justice Kagan goes out of her way in her opinion to acknowledge, and I would say to tacitly agree with, the proposition that, more often than not, there will be sufficient exigency to permit a warrantless entry when a police officer is pursuing a fleeing -- a person who is fleeing from them in suspect of a misdemeanor.

 

      So, I just -- I'm just sort of trying to describe what I think is the reality on the ground. The reality on the ground is that you shouldn't run away from police, generally speaking. And generally speaking, the judiciary is going to -- I think going forward, is going to take the police officer's side under circumstances like this where there's been a warrantless entry after somebody tried to run away from the cop. And so I'm just describing what I think the pragmatic, or the practical, reality is going to be going forward. And to me, that was really telegraphed by, I think, really, all of the opinions. More explicitly in some of the opinions than in others, granted, but the overall take I get from the totality of the opinions in this case, is that if you flee a police officer who's trying to arrest you for a misdemeanor, you should not expect a good result --

 

Larry H. James:  Well, I would say --.

 

Clark Neily:  -- if the -- go ahead.

 

Larry H. James:  I think that is at the academic intellectual level and maybe the Supreme Court. I think at the state trial courts -- and we're talking about, basically, state trial courts not federal -- well there's -- it wouldn't be federal, but at those levels -- with the current climate that police officers are under, --

 

Clark Neily:  Yeah.

 

Larry H. James:  -- the role that race now plays in these situations, I would suggest strongly that there's going to be a much more sensitive approach to over -- the officer overstepping bounds.

 

      Because I think lawyers are going to come after them pretty hard. The courts are going to put them under more scrutiny and say, did you stop this black man or this woman, or this circumstances because of race? And particularly in the race issues, I think we're going to get a different review. So, I would suggest that we really take a look at what the trial court ultimately does with this case and what their findings are going to be.

 

Vikrant Reddy:  You know, Larry, speaking of the broader climate, I read a -- it was just a couple of sentences from Jonathan Adler at The Volokh Conspiracy yesterday talking about this case, and it was really interesting. He was comparing the outcome of this case to the Van Buren case, another criminal law case from earlier this term that had to deal with the Computer Fraud and Abuse Act and a police officer, actually, who had authorized a database that he was authorized to access but for a purpose that he was not permitted to authorize it. And Professor Adler was comparing the breakdown of the justices in that case and the justices in this case, and he thinks that at a very broad level, among the conservative justices, the younger ones seem to just be much more concerned with law enforcement abuse and the older ones seem to be much more concerned with public safety considerations.

 

      And it would make sense. You see this kind of thing in Congress because there was a time where there was a very serious urban crime epidemic in the country in the 1970s, '80s, early '90s, and people who lived through that on a day-to-day basis are going to be very, very sensitive to those concerns. On the other hand, there's a younger generation that lived through a period where things were different and there were different kinds of concerns in public policy, less though the crime threat, crack epidemic, things like that.

 

      And I just thought it was a really interesting speculation on his part that, as cases like this come before Gorsuch and Barrett and maybe Kavanaugh -- but he was a little different in this case -- but as they come before these justices, they just may have a totally different analytical framework than Thomas and Alito and Roberts. I don't know, but it was an interesting speculation from Professor Adler.

 

Larry H. James:  Another case, Glover, that the Court decided, where an individual was running -- the officer was running license plates -- and the question was, did the officer have probable suspicious cause to stop this individual car because its tags had expired and the owner of that car license had been either revoked or suspended? And the Court was very delicate in saying that if you -- if the car was owned by a male, but a woman was driving it, or the owner was white and the driver -- so I think it's been very balancing in trying to determine -- and you have to remember, I think, we're back at this high crime point area again in our country.

 

      And with the whole environment of the anti-police movement that they're still trying to weigh, what is the role of law enforcement and how much support deserved? And how much did we give to their independent subjective or objective judgment in these types of cases? And I think we're at a point where judges are going to give it that additional scrutiny, and if they have stepped over the line -- and even in this case, which I would say probably is as innocent as you could get, there was no extenuating circumstances that the officer just thought this person was a risk. And I would say the moment he got into his home, did that risk then terminate, and what was that compelling reason? If you take the majority [inaudible 40:55] we didn't overrule it, but we're going to send it back for these additional findings.

 

Vikrant Reddy:  I do want to push back just a little on one small thing you said, Larry, which is that we are in a period of rising crime rates. It really concerns me. It should concern everybody on this call. I think homicides are about 30 percent higher than they were last year. That's a serious, serious issue. But it's nothing compared to what we were dealing with in the 1970s and the 1980s.

 

      And I want to be a little careful about that because I think the public policy solutions that were pursued back then, that maybe were necessary -- I just don't know that we're quite at the point where we need to revive some of those public policy solutions again right now. The numbers are just not there. Now, that's not to say we should ignore what's going on. We should take it very, very seriously. But it is different.

 

Clark Neily:  And I'm going to take even further exception. Actually, it's not true that crime is up. Crime's down about 13 percent, according to the FBI, over the past year. Some categories of crime are up, and some of the most concerning categories, like gun crimes -- I'm sorry, assaults with a gun, homicides, but robberies are down. Sexual assaults are down. Property crimes are down. I think it'd be very dangerous to draw any conclusions from what crime rates have done over the last year. It's been an unprecedented year.

 

      The thing to keep in mind is that decade-for-decade, as you pointed out, Vikrant, we've seen a drop of about 50 percent since the early 1990s in our crime rates, which is astonishing and highly encouraging. So, I, for one, would say that we should be very careful, both how we describe what has happened under COVID, and how we respond to it.

 

      You flagged something that I think that’s worth mentioning here. There's an interesting passage in Justice Kagan's majority opinion where she says that, "We are not eager to print a new permission slip for entering the home without a warrant." I can name a few justices that you could never imagine that statement coming out of their mouth because eager would be an understatement to describing their desire to create exceptions. So, whether that ties into this generational thing that you brought up -- that Professor Adler mentioned on The Volokh Conspiracy, I have no idea, but it's an interesting point.

 

      And it may be that some of the younger justices feel that police are already sufficiently equipped with prerogatives and that, perhaps in some cases at least, they have not exercised some of their Fourth Amendment prerogatives in a way that inspires confidence. The Breonna Taylor killing comes to mind. There have been a number of fairly high-profile wrong address police raids. And there have been some real tragedies, including the three-year-old boy who was nearly burned to death when they -- a SWAT team threw a flash-bang grenade into his crib while trying to make an entry. And so, that's not to say that that's characteristic, but it is to say that it's possible that some justices, at least, feel that they'd like to have more confidence in the manner in which these prerogatives are exercised before they think about expanding them.

 

Larry H. James:  Yeah, but what [inaudible 44:11] I would [44:12] that I think the justices -- the reason they wrote this opinion the way they did, they did not want to put a chilling effect on law enforcement and their ability to use their experience, their training, their [inaudible 44:28]. And I think the reality that we lived in – that we live in now, and we saw -- we look at the election taking place in New York -- honored with law enforcement background who took the position that they were going to take a little bit different approach from the more progressive left-leaning America.

 

      And so, what I would say that this Court did a pretty good job and balanced that in saying there is no absolute rule, that they're all circumstances as Roberts might have had, that in a misdemeanant situation you could go into a home. So, I'm still -- you know, the world I live in, I'm confident of what we see, but I also see certain communities in certain ZIP codes that are -- that the crime rate on those areas that you have espoused are as high as they've ever been and they're not getting any better.

 

Clark Neily:  You want to take some questions?

 

Larry H. James:  Sure.

 

Evelyn Hildebrand:  Yes. Let's go to some audience questions if that's all right with everyone. The first question is, “Isn’t one problem with –" I would add just -- the outcome of this case – “that it creates an incentive to make a dash for home when the blue lights go on? Would anyone like to comment on that to begin with?"

 

Clark Neily:  I'd be pretty shocked if the average misdemeanor suspect is keeping current with Fourth Amendment jurisprudence from the courts [Laughter]. So, I'm pretty skeptical whether that's the thing that causes somebody to decide whether or not to flee. I suspect there are a lot of other factors involved, but I'm guessing that's not one of them.

 

Larry H. James:  And I would agree with that.

 

Vikrant Reddy:  I agree with that too, although I will say this -- for some people, there's always an incentive to make a dash for home. And it comes up in Kagan's opinion -- in particular, teenagers. There are a lot of examples where kids, they start to see the lights flashing. They say, "Oh, goodness. I better get back to my parents."

 

      And actually, it's an important point for public policy purposes and for when you're thinking about these kinds of cases because there are a lot of people who say, “Well, gosh, the very act of fleeing a police officer is just intrinsically suspicious. That’s always bad news.” I don't know about that. I mean, some cases, it's just a really scared or really dopy kid who just wants to get back to their parents whenever they address the situation.

 

Larry H. James:  But I don't think that that mindset will have anything to do with this decision.

 

Vikrant Reddy:  I agree with that.

 

Evelyn Hildebrand:  That's a good place of consensus then on that question. The next one goes to another -- I think it's another piece of the exigent-circumstances exception. Can the average human body's metabolism be considered the exigent circumstance even though the driving risk has ended?

 

Larry H. James:  I'm not sure what they're asking.

 

Clark Neily:  I think the question is, is the possibility that you will not be able to obtain evidence that the person was impaired by measuring the blood alcohol content -- maybe it takes you two hours to get the warrant, and by that time they've metabolized whatever substance it was that you wanted to test. That -- it comes up in Justice Kagan's opinion in the context of an earlier case called -- I'm looking for it right now. I think it was Welch or Walsh. And actually, she doesn't really develop that point at all. It just -- she knows that the holding of the case was that that particular situation was insufficiently exigent because the crime of which the person was suspected, she says, was a non-jailable offense. And they rejected the argument that the possibility of the blood alcohol dissipating was a sufficient exigency on the ground that, "The driver had been charged with only a minor offense."

 

      So, I don't -- I think I'd -- we'd have to look into that a little bit more. That seems -- it strikes me that that can't be the blanket rule. I would be surprised if -- and I should really know this because there's a number of cases in this area. But -- and perhaps one of our listeners will write in. Maybe they know more about it than we do. But it does seem to me that a strong suspicion that somebody's impaired, but an inability to gather evidence for some period of time -- now, of course, might be exigent.

 

      On the other hand, I know there's been some discussion in some opinions that, increasingly, officers are able, under those circumstances -- not always but often -- able to get a warrant within less than an hour, let's say. Under those circumstances, I think it'd be a much harder case to make that there's an exigency because that substance is not going to be metabolized out of the body in just an hour. So, my guess is that it's -- like so many other things in this area -- likely to be case-specific, and there's no uniform rule on that.

 

Evelyn Hildebrand:  Maybe just to follow up on that — and I don't know if either Mr. James or Mr. Reddy would like to comment on this — I'm recalling, vaguely, that there is a distinction between a forcibly administered breathalyzer versus a forcibly administered blood draw. So, maybe that goes to the issue as well.

 

Larry H. James:  Well, I'm not -- I don't practice in this area [inaudible 50:00].

 

Clark Neily:  Why don't we take the next question?

 

Evelyn Hildebrand:  Sounds good. Okay. And then the next question that we have is, "Since the panelists have assessed officer motivations and incentives, how do police supervisors view officers who make frequent arrests but then have the evidence suppressed as unlawfully obtained? Though officers likely impress supervisors by making many valid arrests, would making many invalid arrests be, not only not a positive, but actually a negative?"

 

Vikrant Reddy:  I'd hope so.

 

Clark Neily:  Larry's the authority here.

 

[CROSSTALK]

 

Vikrant Reddy:  Yeah, he may know more about the culture within police departments on this topic.

 

Larry H. James:  Right. It depends on a number of factors. Where they're living -- so where the officer's working, the number of arrests he or she is making within a period of time, and you will review those and whether an officer needs to go back into in-service training. Because you have what's called the Brady Rule, and if an officer's deemed to be untruthful, he or she can lose their license to carry a gun and lose their job and will not be called to testify by prosecutors.

 

[CROSSTALK]

 

Vikrant Reddy:  Does that happen frequently? I'm just curious.

 

Larry H. James:  Yes, it does. That is one of the major battles we're having on what we call the Brady-Giglio thing where a prosecutor puts you on the Brady List. That means they will not call you as a witness. And if that happens, you're going to be terminated.

 

Vikrant Reddy:  Out of curiosity, would you know off the top of your head how many cases of that there are, for example, within the National Fraternal Order of Police per year?

 

Larry H. James:  I don't have numbers, but I can tell you it is a constant inquiry I get of -- we actually did a Brady Task Force on looking and helping officers, and lawyers who represent officers, who get on the Brady List on due process because there are very little due process protections when an officer is put on the Brady List.

 

Evelyn Hildebrand:  Great. Well, this has been a great discussion. Would you like to make closing comments before we wrap up?

 

Vikrant Reddy:  I'll throw in one thing that -- it's not a -- it's not wrapping up previous comments, but actually introducing something new because it's one thing we didn't talk about. And it's the very question of the Exclusionary Rule because that's what the Thomas concurrence is about. And we have these academic debates, sometimes debates within legal opinions, from time to time about whether or not the Exclusionary Rule is even justified. And it is a peculiar rule. Not all Western developed societies have got it. But then again, we've got a lot of peculiar rules in America. Not everybody's got the robust First Amendment we've got either.

 

      But it comes up a lot, and it was notable that Kavanaugh joined that Thomas concurrence because it may suggest that Kavanaugh is skeptical in some ways of the way we apply the Exclusionary Rule. There have been questions in the past about Roberts's position on that rule because -- my memory may be poor on this, but I think at the time of his confirmation some memos surfaced from his time working under President Reagan where he'd written something skeptical of the rule, and the debate was -- or the question was, does this represent his view or was he trying to channel the view of DOJ at the time? It wasn't quite clear. But it is just interesting to see the Exclusionary Rule kind of pop up, buried in one of the concurrences. Because it's just a very interesting subject, and you could see it beginning to emerge as more of a flashpoint in American law in the future.

 

Clark Neily:  Larry?

 

Larry H. James:  I'd close by saying, again, I think that this decision and how trial courts are going to look at if there's some risk or immediacy that compels the officer to act. -- if it doesn't, I think the courts are going to find consistently, then go get a warrant.

 

Clary Neily:  I adamantly hope that Larry is correct about that. I think Justice Kagan was correct to start with the sanctity of the home. As I eluded to before, I think that there are a significant number of misdemeanor arrests that occur every year that would not occur if the officer had to get a warrant because they're, frankly, rather silly. And everybody recognizes it would be a waste of the judge's time to even apply for the warrant.

 

      And I think that that sheds some light on a problem that we've not really touched on today, -- or touched on briefly -- which is overcriminalization. And to the extent this opinion has some beneficial effect in that area, I think it will be good. I'm skeptical. My guess is that this opinion will be more significant for the rhetorical statements that it makes and how those can be applied in future cases with more practical significance than I think this one is likely to have.

 

      My gut is that this case will not end up having much practical significance and that more often than not, when it's a close call, the courts will, without saying so, apply something like a rule of reason, where -- if the entry that was a close call, in terms of whether it was sufficiently exigent to justify the absence of a warrant -- if they found something important like a body or evidence of some serious crime, I'm pretty confident that the courts are going to find a way to avoid excluding that evidence and to ensure that the person is -- that the government's able to prosecute that person despite the fact that there may have been some questions about the entry. As long as it's not blatant and it's a close call, I think we'll see some very pragmatic rulings by trial courts in the wake of this case.

 

Evelyn Hildebrand:  Great. Well, thank you, everyone, for participating. I want to extend the thanks of The Federalist Society to our panel of experts, Mr. Larry James, Mr. Clark Neily, and Mr. Vikrant Reddy, for the benefit of their valuable time and expertise today and commenting on this case. And I want to thank our audience for participating and sending in your questions. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.