"…and important for what it does not do."
Supreme Court, Stanton v. Sims and Hot Pursuit
By: Zachary Miller and Randy Means
Stanton v. Sims is about an officer’s entitlement to the qualified immunity defense available if the officer acted reasonably, even if erroneously, which generally means that the officer didn’t violate a clearly settled principle of federal constitutional law. So, the central issue in this case was whether, at the time of this officer’s action in 2008, it was clearly established in federal constitutional law that it would be illegal to do what this officer did. The Supreme Court’s answer was “no” and the officer was therefore entitled to immunity from civil liability in this case.
Under what circumstances can a police officer who is in “hot pursuit” of a misdemeanor suspect continue the chase, without a warrant or consent, onto the well-identified curtilage of private premises? In Stanton v. Sims, decided Nov. 4, 2013, the United States Supreme Court illuminated the issue but did not settle the question. In finding that the involved officer was entitled to summary judgment based on qualified immunity, the Court ruled that, given the unsettled state of the law in this area, a reasonable officer could have thought it was lawful to do what this officer did.
It did not decide whether the officer did or did not violate the plaintiff’s constitutional rights. Therefore, this case should be used to identify issues and criteria for policy and training but should not be taught as authority to do what this officer did.
Facts of the Case
The case involved a short foot pursuit of a man for failure to obey a law enforcement officer’s order to stop which, in the state (CA) where this case arose, was a (jailable) misdemeanor. A female bystander was significantly injured when she was inadvertently struck by her gate as the officer forced it open to continue his pursuit.
She sued the officer alleging, among other things, a violation of her Fourth Amendment right to be free from unreasonable searches—because the officer had entered the curtilage of her property without a warrant or consent. The curtilage forcibly entered in the Stanton case was protected by a six-foot high, solid wood fence—with a similarly constructed (closed) gate.
The federal District Court (the trial court) granted summary judgment in favor of the officer, who it found qualified for immunity because of the unsettled nature of the law as applied to these facts. The plaintiff appealed. The United States Court of Appeals for the Ninth Circuit reversed, finding it to be clearly settled law that the officer’s actions in this case violated the Fourth Amendment.
The officer appealed to the United States Supreme Court which held, in a per curiam opinion (full court, unanimously, without a specifically identified author), that the officer was indeed entitled to qualified immunity because the law regarding the constitutional question was not clearly established at the time of the incident.
Although the officer in this instance was shielded from civil liability, it is important to understand what the Court did not do in this case. It did not hold that the officer’s warrantless entry into the residential curtilage was lawful. As in many other cases in which federal courts grant qualified immunity to a law enforcement officer, law enforcement officers should not read such a decision as judicial approval for the actions of the officers involved.
Since the basis for the grant of qualified immunity by the Supreme Court in Stanton was the fact that parts of the law regarding hot pursuit of a fleeing suspect onto private premises was unsettled, what guidance can be given to a law enforcement officer facing such a scenario? There are several aspects of Fourth Amendment law to be considered.
The first consideration is the nature of the private property in question and the level of constitutional protection to which a resident of such private property may be entitled. Regarding real property, the Fourth Amendment only provides protection to the residents of “houses” and by extension, the curtilage.
As a general concept, curtilage normally equates to the yard. If an officer in hot pursuit of a fleeing suspect enters a residence or the curtilage, without a warrant or consent, there must be Fourth Amendment justification for such an entry, i.e., an exigent or emergency circumstance. By contrast, entry upon private property outside the curtilage generally does not implicate the Fourth Amendment and needs no such justification.
Another aspect to consider is one of the holdings in United States v. Santana, 427 U.S. 38 (1976), where the Supreme Court held that a lawful arrest process that begins in a public place cannot be thwarted legally by the suspect’s retreat into his home. In Santana, the Court upheld the legality of a warrantless entry into a residence in order to make a warrantless felony arrest for distribution of narcotics. The arrest process began in a public place but the subject retreated into her home and the officer followed her inside, which the Supreme Court allowed.
Welsh v. Wisconsin, 466 U.S. 740 (1986), however, has added a layer of uncertainty to the hot pursuit doctrine espoused in Santana. In Welsh, officers had reason to believe that the driver of a vehicle involved in an accident was intoxicated. The driver left the scene prior to the arrival of the police. The officers determined that the driver lived nearby and proceeded to his residence where they made non-consensual, warrantless entry to arrest for driving under the influence of alcohol, a first-offense punishable in that state at that time as a traffic offense with no possibility of jail time.
The Supreme Court held that the warrantless entry into the residence was unlawful because the need to arrest for a non-jailable traffic offense did not amount to an exigent circumstance. Although Welsh did not involve an entry pursuant to a hot pursuit, there is language in the opinion that suggests that the Court would be reluctant to uphold a hot-pursuit entry to arrest someone for a relatively minor offense, such as was the case in Stanton. In particular, the majority opinion says that it is difficult to conceive of a minor, non-dangerous offense ever giving rise to exigent circumstances.
As the law currently stands, it appears that an officer in hot pursuit of a probable cause suspect in a felony matter may continue that pursuit onto or into private premises without a warrant or consent—on the theory that a lawful arrest process set in motion in a public area may not be thwarted by the closing of a door. There is a pronounced split among the federal courts of appeals and state appeals courts as to the lawfulness of a similar entry where the underlying offense is a misdemeanor.
The Sixth Circuit Court of Appeals and several state courts, including California, Florida, Minnesota, Louisiana, Ohio, Indiana, Texas, Illinois, Georgia, Utah, Mississippi, New Hampshire, Nebraska and Oregon have held that hot pursuit of a misdemeanant is justification for warrantless entry. The Ninth and Tenth Circuit Courts of Appeals and state courts in New Jersey, Kansas, Arkansas, Washington, Virginia, and Delaware have all held that hot pursuit of a misdemeanant is not, in and of itself, justification for warrantless entry.
The nature of the involved offense is going to be a major factor, if not completely determinative, in hot-pursuit situations involving warrantless entry into private premises. Persons responsible for policy and training decisions in this area may wish to proceed with caution by prohibiting hot pursuits into private premises or clearly protected curtilage in regard to minor, non-dangerous misdemeanor offenses—especially given the likelihood that it will be federal appeals courts that settle this issue.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at firstname.lastname@example.org.
Zachary Miller is a Virginia police officer who teaches in-service law classes for his own agency and basic-training law classes for a regional police academy. Officer Miller also provides research assistance to author Randy Means, an attorney and 33-year police legal advisor who provides training and consulting services to law enforcement agencies nationwide.