The United States Supreme Court continued in relevant part: Santana did not resolve the issue of misdemeanor pursuit; as the Court noted in a later case, “the law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not clearly established” one way or the other. Stanton v. Sims, 571 U. S. 3, 8, 10. Misdemeanors run the gamut of seriousness, and they may be minor. States tend to apply the misdemeanor label to less violent and less dangerous crimes. The Court has held that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry. See Welsh v. Wisconsin, 466 U. S. 740, 742–743. Add a suspect’s flight and the calculus changes—but not enough to justify a categorical rule.
In many cases, flight creates a need for police to act swiftly. But no evidence suggests that every case of misdemeanor flight creates such a need. The Court’s Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanants’ flight. When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. Those circumstances include the flight itself. But pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry.
The common law in place at the Constitution’s founding similarly does not support a categorical rule allowing warrantless home entry whenever a misdemeanant flees. Like the Court’s modern precedents, the common law afforded the home strong protection from government intrusion and it generally required a warrant before a government official could enter the home. There was an oft-discussed exception: An officer, according to the common-law treatises, could enter a house to pursue a felon. But in the misdemeanor context, officers had more limited authority to intrude on a fleeing suspect’s home. The commentators generally agreed that the authority turned on the circumstances; none suggested a rule authorizing warrantless entry in every misdemeanor-pursuit case. In short, the common law did not have— and does not support—a categorical rule allowing warrantless home entry when a suspected misdemeanant flees. Justice Kagan was joined by Justices Breyer, Sotomayor, Gorsuch, Kavanaugh and Barrett. Justices Kavanaugh, Thomas, Roberts, and Alito filed and joined in concurring opinions.
The Government’s solution to this case could be to make “failing to comply with a police signal” a federal felony. That would destroy the distinction between fleeing felons and misdemeanants in cases like this and would permit the warrantless entry at issue.
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