Thread by @OrinKerr

The Supreme Court will hold argument in Lange v. California, a 4th Amendment case on the hot-pursuit exception, on Wednesday morning.

I haven't focused much on this case, but here are some tentative thoughts for those interested. supremecourt.gov/search.aspx?fi…

And my apologies: I know this will be hard to follow for those not already steeped in 4th Amendment law, but it's 3am and I don't have the time to bring everyone up to speed on the context. On the theory it's better to speak to a small audience than not speak at all, here goes.

Lange considers the "hot pursuit" exception to the warrant requirement applies to a misdemeanor crime. Is it it judged on a case-by-case basis, or should there be a bright line rule that hot pursuit searches of a dwelling where a misdemeanant has entered is reasonable?

The interesting conceptual question, I gather, is how to think about hot pursuit versus exigent circumstances: Is hot pursuit just an application of exigent circumstances, or is it its own discrete rule?

Some treat hot pursuit as its own exception, and see felony hot pursuit as a bright line rule: To them, the question is whether the felon hot pursuit bright line rule should be extended to misdemeanors.

Others treat hot pursuit as just an application of the broad concept of exigent circumstances, which is pretty much always case-by-case. So they say hot pursuit is case-by-case, too, and this should be.

Whichever way you approach it, the case is largely about rules vs. standards: Should hot pursuit be a rule or a standard, or a rule for felons and a standard for misdemeanants?

I haven't spent a lot of time with the cases to have a super strong view, but I've tended to think of hot pursuit as just part of exig circ. It's all a standard. Yes, felon hot purs will generally be reasonable, but I haven't read the cases as imposing a bright line rule on that.

For example, Warden v. Hayden makes it seem pretty fact-specific -- the analysis was framed as being based "on the circumstances of this case," not some kind of bright line rule.

Similarly, United States v. Santana emphasized the facts of its case as compared to the facts in Warden -- to me, that sounds pretty fact-specific.

Given that, my instinct would be to say that hot pursuit is just a spinoff of exigent circumstances, and it's case by case for both felon pursuit and misdem pursuit. The serious of the crime then just becomes a factor on the balance, Cf. Welsh v. Wisc, without a specific rule.

Oh, and if it's a case by case test, I don't have any particular views of whether the entry here would be reasonable; I would think that's more an issue for a lower court on remand after a full factual hearing. But who knows what SCOTUS will do. As always, stay tuned.