SUPREME COURT OF THE UNITED STATES
ARTHUR GREGORY LANGE, PETITIONER v.
on writ of certiorari to the court of appeal of california, first appellate district
[June 23, 2021]
Chief Justice Roberts, with whom Justice Alito joins, concurring in the judgment.
Suppose a police officer on patrol responds to a report of a man assaulting a teenager. Arriving at the scene, the officer sees the teenager vainly trying to ward off the assailant. The officer attempts to place the assailant under arrest, but he takes off on foot. He leads the officer on a chase over several blocks as the officer yells for him to stop. With the officer closing in, the suspect leaps over a fence and then stands on a home’s front yard. He claims it’s his home and tells the officer to stay away. What is the officer to do?
Fourth Amendment and our precedent—not to mention common sense—provide a clear answer: The officer can enter the property to complete the arrest he lawfully initiated outside it. But the Court today has a different take. Holding that flight, on its own, can never justify a warrantless entry into a home (including its curtilage), the Court requires that the officer: (1) stop and consider whether the suspect—if apprehended—would be charged with a misdemeanor or a felony, and (2) tally up other “exigencies” that might
be present or arise, ante
, at 1, 4, before (3) deciding whether he can complete the arrest or must instead seek a warrant—one that, in all likelihood, will not arrive for hours. Meanwhile, the suspect may stroll into the home and then dash out the back door. Or, for all the officer knows, get a gun and take aim from inside.
The Constitution does not demand this absurd and dangerous result. We should not impose it. As our precedent makes clear, hot pursuit is not merely a setting in which other exigent circumstances justifying warrantless entry might emerge. It is itself an exigent circumstance. And we have never held that whether an officer may enter a home to complete an arrest turns on what the fleeing individual was suspected of doing before he took off, let alone whether that offense would later be charged as a misdemeanor or felony. It is the flight, not the underlying offense, that has always been understood to justify the general rule: “Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.” Kentucky
563 U.S. 452
, 460 (2011). The Court errs by departing from that well-established rule.
Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides that “no Warrants shall issue, but upon probable cause.” While the Amendment does not specify when a warrant must be obtained, we have typically required that officers secure one before entering a home to execute a search or seizure. King
, 563 U. S., at 459. We have also, however, recognized exceptions to that requirement “because the ultimate touchstone of the
Fourth Amendment is ‘reasonableness.’ ” Brigham City
547 U.S. 398
, 403 (2006).
In some instances the Court has determined that this question of reasonableness can be decided by application of a rule for a particular type of case. Mitchell
, 588 U. S. ___, ___, n. 2 (2019) (plurality opinion) (slip op., at 9, n. 2); see Illinois
531 U.S. 326
, 330 (2001) (“[T]his Court has interpreted the Amendment as establishing rules and presumptions.”). This approach reflects our recognition of the need “to provide clear guidance to law enforcement.” Riley
573 U.S. 373
, 398 (2014). We strive to “draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made.” Atwater
v. Lago Vista
532 U.S. 318
, 347 (2001).
We have, for example, established general rules giving effect to the “well-recognized exception [that] applies when the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the
Fourth Amendment.” King
, 563 U. S., at 460 (some alterations in original; internal quotation marks omitted). In fact, “our exigency case law is full of general rules” that provide “guidance on how police should handle [such] cases.” Mitchell
, 588 U. S.,
at ___, n. 3 (slip op., at 9, n. 3) (internal quotation marks omitted). These rules allow warrantless entry into the home when necessary to “protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.” Carpenter
v. United States
, 585 U. S. ___, ___–___ (2018) (slip op., at 21–22).
Or—relevant here—“to pursue a fleeing suspect.” Id.
, at ___ (slip op., at 21).
We take a case-by-case approach in deciding whether a search or seizure was conducted in reaction to an exigent circumstance, such as whether an officer had an objective basis to “fear the imminent destruction of evidence.” Birchfield
v. North Dakota
579 U.S. 438, ___ (2016) (slip op., at 15).
But once faced with an exigency, our rule is clear: officers are “not bound to learn anything more or wait any longer before going in.” United States
540 U.S. 31, 40 (2003).
Today, the Court holds that hot pursuit merely sets the table for other exigencies that may emerge to justify warrantless entry, such as imminent harm.
This comes as a surprise. For decades we have consistently recognized pursuit of a fleeing suspect as an exigency, one that on its own justifies warrantless entry into a home.
Almost a half century ago in United States
427 U.S. 38
(1976), we considered whether hot pursuit supports warrantless home entry. We held that such entry was justified when Santana “retreat[ed] into her house” after a drug transaction upon hearing law enforcement “shout[ ] ‘police’ ” and seeing them “display[ ] their identification.” Id.
, at 40, 42.
As we explained, “a suspect may not defeat an arrest which has been set in motion in a public place . . . by the expedient of escaping to a private place.” Id.
at 43. Our interpretation of the
Fourth Amendment did not hinge on whether the offense that precipitated her withdrawal was a felony or a misdemeanor. See Stanton
571 U.S. 3
, 9 (2013) (per curiam
We have repeatedly and consistently reaffirmed that hot pursuit is itself an exigent circumstance. See, e.g.
, 585 U. S., at ____ (slip op., at 21) (“[E]xigencies include the need to pursue a fleeing suspect.”); Collins
, 584 U. S. ___, ___ (2018) (slip op., at 12) (distinguishing prior case approving warrantless entry onto the curtilage as best sounding in “hot pursuit”); Birchfield
, 579 U. S., at ___ (slip op., at 15) (exception for exigent circumstances authorizes “the warrantless entry of private property . . . when police are in hot pursuit of a fleeing suspect”); King
, 563 U. S., at 460 (“Police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect.”); Brigham City
, 547 U. S., at 403 (“We have held, for example, that law enforcement officers may make a warrantless entry onto private property . . . to engage in ‘hot pursuit’ of a fleeing suspect.” (citations omitted)); Steagald
v. United States
451 U.S. 204
, 221 (1981) (“[W]arrantless entry of a home would be justified if the police were in ‘hot pursuit’ of a fugitive.”); see also Mitchell
, 588 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 11) (“ ‘hot pursuit’ of a fleeing suspect” qualifies as an exigency); Missouri
569 U.S. 141
, 176–177 (2013) (Thomas, J., dissenting) (same).
These cases, it bears repeating, have not viewed hot pursuit as merely the background against which other
exigencies justifying warrantless entry might arise. See, e.g.
, 585 U. S., at ___–___ (slip op., at 21–22) (identifying destruction of evidence, emergency aid, and
hot pursuit as separate exigencies); Birchfield
, 579 U. S., at ___ (slip op., at 15) (same); McNeely
, 569 U. S., at 148–149 (opinion of the Court) (same); King
, 563 U. S., at 460 (same); Brigham City
, 547 U. S., at 403 (same);
see also Mitchell
, 588 U. S., at ___ (Sotomayor, J., dissenting) (slip op., at 11) (same). And our decisions do not dismiss the existence of an exigency—including hot pursuit—based on the underlying offense that precipitated law enforcement action, even if known. To the contrary, until today, we have explicitly rejected invitations to do so. See Brigham City
, 547 U. S., at 405 (dismissing defendants’ contention that offenses at issue were “not serious enough” to justify reliance on the emergency aid doctrine); Michigan
558 U.S. 45
, 47 (2009) (per curiam
); see also Atwater
, 532 U. S., at 354 (rejecting exception for “very minor criminal offense[s]” to rule allowing warrantless arrests).
The Court displays little patience for this precedent. With regard to Santana
, the Court concedes that “we framed our holding in broad[ ] terms.” Ante
, at 7. Yet it narrows those terms based on rationales that played no role in the decision. The Court then brushes off our slew of cases reaffirming Santana
’s broad holding as nothing more than “dicta.” Ante
, at 7. I would not override decades of guidance to law enforcement in favor of a new rule that provides no guidance at all.
A proper consideration of the interests at stake confirms the position our precedent amply supports. Pursuit implicates substantial government interests, regardless of the offense precipitating the flight. It is the flight, not the underlying offense, that justifies the entry.
At the start, every hot pursuit implicates the government interest in ensuring compliance with law enforcement. California
v. Hodari D.
499 U.S. 621
, 627 (1991). Flight is a direct attempt to evade arrest and thereby frustrate our “society’s interest in having its laws obeyed.” Terry
392 U.S. 1
, 26 (1968). Disregarding an order to yield to law enforcement authority cannot be dismissed with a shrug of the shoulders simply because the underlying offense is regarded as “innocuous,” ante
at 10. As the many state courts to approve of warrantless entry in hot pursuit have reminded us, “[l]aw enforcement is not a child’s game of prisoners base, or a contest, with apprehension and conviction depending upon whether the officer or defendant is the fleetest of foot.” Commonwealth
, 471 Mass. 624, 634, 31 N. E. 3d 1079, 1089 (2015) (quoting State
, 144 N. H. 241, 245, 739 A.2d 404, 408 (1999)).
Flight also always involves the “paramount” government interest in public safety. Scott
550 U.S. 372
, 383 (2007); see Hodari D.
, 499 U. S., at 627 (“Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged.”). A fleeing suspect “intentionally place[s] himself and the public in danger.” Scott
550 U. S., at 384. Vehicular pursuits, in particular, are often catastrophic. See Dept. of Justice, Bureau of Justice Statistics, B. Reaves, Police Vehicle Pursuits, 2012–2013, p. 6 (May 2017) (average of about one death per day in the United States from vehicle pursuits from 1996 to 2015). Affording suspects the opportunity to evade arrest by winning the race rewards flight and encourages dangerous behavior.
And the problems do not end there because hot pursuit often gives rise to multiple other exigencies, such as destruction of evidence, violence, and escape. The Court acknowledges this reality, but then posits that not “every
case of misdemeanor flight poses such dangers.” Ante
, at 10 (emphasis added). Of course not. But we have never required such a level of certainty before crafting a general rule that law enforcement can follow. For example, in Washington
455 U.S. 1
(1982), we held that an officer may accompany an arrestee into his residence without any showing of exigency and regardless of the “nature of the offense for which the arrest was made,” because there “is no way for an officer to predict reliably how a particular subject will react to arrest” and “the possibility that an arrested person will attempt to escape if not properly supervised is obvious.” Id
., at 6–7. In Michigan
452 U.S. 692
(1981), we concluded that, although “no special danger to the police” was suggested by the evidence in the record, the execution of a search warrant merited a categorical rule allowing detention of present individuals because it was the “kind of transaction” that could give rise to other exigencies. Id
., at 702. And in United States
414 U.S. 218
(1973), we held that the search incident to arrest exception applies to all arrests regardless “what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found,” because arrests require “quick ad hoc
., at 235.
Such concerns are magnified here. The act of pursuing a fleeing suspect makes simultaneously assessing which other exigencies might arise especially difficult to ascertain “on the spur (and in the heat) of the moment.” Atwater
, 532 U. S., at 347. The Court disputes this proposition, ante,
at 11, n. 3, but the difficulty of discerning hidden weapons or drugs on a suspect running or driving away seems clear to us.
The risks to officer safety posed by the Court’s suggestion that an officer simply abandon pursuit and await a warrant are severe. We are warned in this case that “attempting warrant service for an unknown suspect in an unknown home at night is flat dangerous.” Brief for Sonoma County District Attorney’s Office et al. as Amici Curiae
33. Whether at night or during the day, the officer is obviously vulnerable to those inside the home while awaiting a warrant, including danger from a suspect who has already demonstrated himself to be undeterred by police orders. See, e.g.
, 2019 WL 3220051, *4 (ND Ala., July 17, 2019) (at fleeing suspect’s urging, resident grabbed a handgun); State
, 2000–278, p. 5 (La. App. 5 Cir. 8/29/00), 768 So. 2d 201, 206 (fleeing suspect “reached for a handgun” inside home).
Even if the area outside the home remains tranquil, the suspect inside is free to destroy evidence or continue his escape. Flight is obviously suggestive of these recognized exigencies, which could materialize promptly once the officer is compelled to abandon pursuit. The destruction of evidence can take as little as “15 or 20 seconds,” Banks
, 540 U. S., at 40; and a suspect can dash out the back door just as quickly, while the officer must wait outside. Forcing the officer to wait and predict whether such exigencies will
occur before entry is in practice no different from forcing the officer to wait for these exigencies to
Indeed, from the perspective of the officer, many instances of flight leading to further wrongdoing are the sort of “flight alone” cases the Court deems harmless, ante
, at 11, n. 3. Despite the Court’s suggestion to the contrary, examples of “flight alone” generating exigencies difficult to identify in advance are not hard to find. See, e.g. State
, 2013-Ohio-505, 989 N.E.2d 100, 101–102 (App.)
(warrantless entry in hot pursuit of someone who committed turn signal violation revealed heroin on suspect and suggested attempt to flush drugs down the toilet); State
, 2014-Ohio-2366, 2014 WL 2565680, *1 (App., June 4, 2014) (suspect who committed trespass, fled from the police into private driveway, and stated to officers “[Y]ou can’t touch me, I’m at my house,” turned out to have a gun). (And, as we will see, it is apparently hard to decide which cases qualify as “flight alone” cases, see infra
, at 16.)
If the suspect continues to flee through the house, while the officer must wait, even the quickest warrant will be far too late. Only in the best circumstances can one be obtained in under an hour, see Brief for Respondent 33, and it usually takes much longer than that, see Brief for Los Angeles County Police Chiefs’ Association as Amicus Curiae
24–25. Even electronic warrants may involve “time-consuming formalities.” McNeely
, 569 U. S., at 155.
And some States typically require that a warrant application be in writing, see, e.g.
, Colo. Rev. Stat. §16–3–303 (2020), or that the applicant appear in person before a judge, see, e.g.
, Mass. Gen. Laws, ch. 276, §2B (2019), or permit oral applications only for certain cases, see, e.g.
, Iowa Code §321J.10.3 (2019). All of these factors make it very possible that the officer will never
be able to identify the suspect if he cannot continue the pursuit. See Hiibel
v. Sixth Judicial Dist. Court of Nev., Humboldt Cty.
542 U.S. 177
, 186 (2004) (recognizing identification as an “important government interest[ ]”). The Court today creates “perverse incentives” by imposing an “invitation to impunity-earned-by-recklessness.” Scott
, 555 U. S., at 385–386.
Against these government interests we balance the suspect’s privacy interest in a home to which he has voluntarily led a pursuing officer. If the residence is not his the suspect has no privacy interest to protect. Rakas
439 U.S. 128
, 141 (1978); see also State
, 2006–1045, p. 7 (La. 4/11/07), 953 So. 2d 786, 790–791 (suspect fled into third person’s residence where he was unwelcome); Ulysse
, 899 So. 2d 1233, 1234 (Fla. App. 2005) (suspect ran inside the home of “a complete stranger”). The police may well have no reason to know whether the suspect entered his own or someone else’s home or yard. If the suspect does escape into his own home, his privacy interest is diminished because he was the one who chose to move his encounter with the police there. See State
, 633 N.W.2d 763, 773 (Iowa 2001) (nature of intrusion is “slight” in hot pursuit because the officer’s entry “was no surprise to [the suspect]; he was following closely on her heels”); 4 W. LaFave, Search and Seizure §9.2(d), p. 419 (6th ed. 2020) (“the suspect has only himself to blame for the fact that the encounter has been moved from a public to a private area”). In cases of hot pursuit, “[t]he offender is then not being bothered by the police unexpectedly while in domestic tranquility. He has gone to his home while fleeing solely to escape arrest.” R.
,  2 S. C. R. 802, 815. Put differently, just as arrestees have “reduced privacy interests,” Riley
, 573 U. S., at 391, so too do those who evade arrest by leading the police on car chases into their garages.
“In determining what is reasonable under the
Fourth Amendment, we have given great weight to the essential interest in readily administrable rules.” Virginia
553 U.S. 164
, 175 (2008) (internal quotation marks omitted). This is particularly true with respect to the rules governing exceptions to the warrant requirement because of exigent circumstances. See Mitchell
, 588 U. S.,
at ___, n. 3 (slip op., at 9, n. 3). And contrary to the Court’s suggestion, the home is not immune from the application of such rules consistent with the
Fourth Amendment. See, e.g.
, 452 U. S., at 705; Chimel
395 U.S. 752
, 763 (1969).
Like most rules, this one is not without exceptions or qualifications. The police cannot manufacture an unnecessary pursuit to enable a search of a home rather than to execute an arrest. Cf. Fernandez
571 U.S. 292
, 302 (2014) (“evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding possible objection” would be probative of the objective unreasonableness of a warrantless entry based on the consent of another occupant).
Additionally, if a reasonable officer would not believe that the suspect fled into the home to “thwart an otherwise proper arrest,” Santana
, 427 U. S., at 42, warrantless entry would not be reasonable.
Additional safeguards limit the potential for abuse. The officer must in all events effect a reasonable entry. United States
523 U.S. 65
, 71 (1998).
As the lower courts have recognized, hot pursuit gives the officer authority to enter a home, but “it does not have any bearing on the constitutionality of the manner in which he enters the home.” Trent
, 776 F.3d 368, 382 (CA5 2015). And his authority to search is circumscribed, limited to “those spaces where a person may be found” for “no longer than it takes to complete the arrest and depart the premises.” Maryland
494 U.S. 325
, 335–336 (1990). Finally, arrests conducted “in an extraordinary manner, unusually harmful to an individual’s privacy or even physical interests” are subject to even more stringent review. Whren
v. United States
517 U.S. 806
, 818 (1996).
Courts must also ascertain whether a given set of circumstances actually qualifies as hot pursuit. While the flight need not be reminiscent of the opening scene of a James Bond film, there must be “some sort of a chase.” Santana
, 427 U. S., at 43.
The pursuit must be “immediate or continuous.” Welsh
466 U.S. 740
, 753 (1984). And the suspect should have known the officer intended for him to stop. Cf. Michigan
486 U.S. 567
, 573–574 (1988). Where a suspect, for example, chooses to end a voluntary conversation with law enforcement and go inside her home, that does not constitute flight. Florida
460 U.S. 491
, 497–498 (1983) (plurality opinion).
Because the California Court of Appeals assumed that hot pursuit categorically permits warrantless entry, I would vacate the decision below to allow consideration of whether the circumstances at issue in this case fall within an exception to the general rule of the sort outlined above. Lange would be free to argue that his is the “unusual case,” Mitchell
, 588 U. S., at ____ (plurality opinion) (slip op., at 16), in which the general rule that hot pursuit justifies warrantless entry does not apply.
Now consider the regime the Court imposes. In rejecting the amicus
’ proposed categorical rule favoring warrantless home entry, the Court creates a categorical rule of its own: Flight alone can never
justify warrantless entry into a home or its curtilage. Instead, flight is but one factor of unclear weight to “consider,” ante,
at 16, and it must be supplemented with at least one additional exigency. This is necessary, the Court explains, because people “flee for innocuous reasons,” ante
at 10, although the Court offers just two actual examples of “innocuous” flight, the harmlessness of which would not have been apparent to the police, see ibid
. (citing Carroll
, 800 F.3d 154, 162 (CA5 2015; Mascorro
, 656 F.3d 1198, 1202 (CA10 2011)).
In order to create a hot pursuit rule ostensibly specific to misdemeanors, the Court must turn to a case concerning neither misdemeanors nor hot pursuit. In Welsh
, we held that the warrantless entry of a drunk driver’s home to arrest him for a nonjailable offense violated the
Fourth Amendment. 466 U. S., at 754. The Court relies on Welsh
for the proposition that “when a minor offense alone is involved . . . officers can probably take the time to get a warrant” to execute an arrest. Ante
, at 9–10.
The Court’s determination that Welsh
applies to all cases involving “minor” offenses—although we never learn what qualifies as a minor offense—ignores that we have already declined to apply Welsh
to cases involving misdemeanors because
of the “significant” distinction between nonjailable offenses and misdemeanors. McArthur
, 531 U. S., at 336. And in any event, we explicitly differentiated the circumstances at issue in Welsh
from “immediate or continuous pursuit of [a person] from the scene of a crime.” 466 U. S., at 753; see Brigham City
, 547 U. S., at 405 (rejecting Welsh
’s application to a situation involving exigent circumstance of emergency aid). Accordingly, as we have already held, “nothing in [Welsh
] establishes that the seriousness of the crime is equally important in cases of hot pursuit.
, 571 U. S., at 9 (emphasis in original). The Court’s citation to Justice Jackson’s concurrence in McDonald
v. United States
335 U.S. 451
at 11, n. 3, is similarly inapt. That case involved entry for mere “follow[ ] up,” not anything resembling hot pursuit. McDonald
, 335 U. S., at 459.
The Court next limits its consideration of the interests at stake to a balancing of what it perceives to be the government’s interest in capturing innocuous misdemeanants against a person’s privacy interest in his home. The question, however, is not whether “litter[ing]” presents risks to public safety or the potential for escape, ante
at 8, but whether flight
does so. And flight from the police is never innocuous.
The Court ultimately decides that, when it comes to misdemeanors, States do not have as much of an interest in seeing such laws enforced. But, as the Court concedes, we have already rejected as “untenable” the “assumption that a ‘felon’ is more dangerous than a misdemeanant.” Tennessee
471 U.S. 1
, 14 (1985).
This is so because “numerous misdemeanors involve conduct more dangerous than many felonies.” Ibid.
At any rate, the fact that a suspect flees when suspected of a minor
offense could well be indicative
of a larger danger, given that he has voluntarily exposed himself to much higher criminal penalties in exchange for the prospect of escaping or delaying arrest. Cf. Illinois
528 U.S. 119
, 124 (2000).
The Court’s rule is also famously difficult to apply. The difference between the two categories of offenses is esoteric, to say the least. See Atwater
, 532 U. S., at 350; Berkemer
468 U.S. 420
, 431, n. 13 (1984) (“[O]fficers in the field frequently have neither the time nor the competence to determine the severity of the offense for which they are considering arresting a person.” (internal quotation marks omitted)).
For example, driving while under the influence is a misdemeanor in many States, but becomes a felony if the suspect is a serial drunk driver. See, e.g.
, Alaska Stat. §28.35.030(n) (2020). Drug possession may be a misdemeanor or a felony depending on the weight of the drugs. See, e.g.
, Ohio Rev. Code Ann. §2925.11(C) (Lexis 2019) (outlining 50 potential iterations of unlawful drug possession, some misdemeanors others felonies). Layer on top of this that for certain offenses the exact same conduct may be charged as a misdemeanor or felony depending on the discretionary decisions of the prosecutor and the judge (what California refers to as a “wobbler”), and we have a recipe for paralysis in the face of flight. See Cal. Penal Code Ann. §§486–490.1 (West Cum. Supp. 2021) (classifying theft as an infraction, misdemeanor, wobbler, or felony depending on the value of the stolen item).
The Court permits constitutional protections to vary based on how each State has chosen to classify a given offense. For example, “human trafficking” can be a misdemeanor in Maryland, Md. Crim. Law Code Ann. §3–1102(c)(1) (2019), contra,
Tex. Penal Code Ann. §20 A. 02 (West 2021), and in Pennsylvania so can involuntary manslaughter, 18 Pa. Cons. Stat. §2504(b) (2015); contra,
Ohio Rev. Code Ann. §2903.04(C). The vehicular flight at issue in this very case is classified as a felony in several States. See, e.g.,
Fla. Stat. §316.1935 (2014); Del. Code Ann., Tit. 21, §4103 (2013). Law enforcement entities and state governments across the Nation tell us that they have accord- ingly developed standards for warrantless entry in hot pursuit tailored to their respective legal regimes. See Brief for Los Angeles County Police Chiefs’ Association as Amicus Curiae
14–20; Brief for State of Ohio et al. as Amici Curiae
25. Given the distinct nature of each State’s legal code, such an approach is more appropriate than the Court’s blunt constitutional reform.
For all these reasons, we have not crafted constitutional rules based on the distinction between modern day misdemeanors and felonies. In Tennessee
, for example, we held that deadly force could not categorically be used to seize a fleeing felon, even though the common law supplied such a rule, because at common law the “gulf between the felonies and the minor offences was broad and deep,” but today it is “minor and often arbitrary.” 471 U. S., at 14 (internal quotation marks omitted).
Similarly, in Atwater
, we held that the general probable- cause rule for warrantless arrests applied to “even a very minor criminal offense,” “without the need to balance the interests and circumstances involved in particular situations.” 532 U. S., at 354 (internal quotation marks omitted). We explained that we could not expect every police officer to automatically recall “the details of frequently complex penalty schemes,” and concluded that distinguishing between “permissible and impermissible arrests for minor crimes” was a “very unsatisfactory line to require police officers to draw on a moment’s notice.” Id
., at 348, 350 (internal quotation marks and alteration omitted).
The Court’s approach is hopelessly indeterminate in other respects as well. The Court admonishes law enforcement to distinguish between “dangerous offender[s]” and “scared teenager[s],” ante,
at 11, as if an officer can easily tell one from the other, and as if the two categories are mutually exclusive. See Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Offending by Juveniles (Mar. 31, 2020) (about 16% of serious violent crimes in the United States from 2007 to 2017 were committed by juveniles). And police are instructed to wait for a warrant if there is sufficient “time,” ante
, at 16, but they are not told time before what
, how many hours the Court would have them wait, and what to do if other “pressing needs” arise. See Mitchell
, 588 U. S., at ___ (plurality opinion) (slip op., at 9) (“[A]n officer’s duty to attend to more pressing needs may leave no time to seek a warrant.”).
The Court tut-tuts that we are making far too much of all this, and that our “alarmism [is] misplaced.” Ante
, at 11, n. 3. In fact, the Court says, its “approach will in many, if not most, cases allow a warrantless home entry.” Ante
, at 11. In support of that assurance, the Court lists several “exigencies above and beyond the flight itself ” that would permit home entry, notably when “the fleeing misdemeanant” will “escape from the home.” Ante,
at 11, n. 3. If an officer “reasonably believes” such an exigency exists,” the Court says, “he does not need a categorical misdemeanor-pursuit rule to justify a warrantless home entry.” Ibid
When a suspect flees into a dwelling there typically will be another way out, such as a back door or fire escape. See Cal. Code Regs., tit. 24, §§1113.2, 1114.8 (2019) (apartments, floors of high-rise buildings, and many other homes must have access to at least two means of egress). If the officer reasonably believes there are multiple exits, then surely the officer can conclude that the suspect might well “escape from the home,” ante
, at 11, n. 3, by running out the back, rather than “slowing down and wiping his brow” while the officer attempts to get a warrant. Scott
, 550 U. S., at 385. Under the Court’s rule warrantless entry into a home in hot pursuit of a fleeing misdemeanant would presumably be permissible, as long as the officer reasonably believed the home had another exit. Question: Is that correct? Police in the field deserve to know.
But the Court will not answer the question, leaving it to the officer to figure out in the midst of hot pursuit. The answer apparently depends on whether the police “believe anything harmful will happen in the time it takes to get a warrant,” ante
, at 11, n. 3, but again, what the police reasonably believe will happen is of course that the suspect will continue his flight and escape out the back. If that reasonable belief is an exigency, then it is present in almost every case of hot pursuit into the home. Perhaps that is why Lange’s counsel admitted that “nine times out of ten or more” warrantless entry in hot pursuit of misdemeanants would be reasonable. Tr. of Oral Arg. 34.
Fourth Amendment is not “frozen” in time, we have used the common law as a reference point for assessing the reasonableness of police activity. Garner
, 471 U. S., at 13. The Court errs, however, in concluding with the suggestion that history supports its novel incentive to flee.
The history is not nearly as clear as the Court suggests. The Court is forced to rely on an argument by negative implication: if common law authorities supported a categorical rule favoring warrantless entry in pursuit of felons, warrantless entry in pursuit of misdemeanants must have been prohibited. That is wrong. Countless sources support the proposition that officers could and did pursue into homes those who had committed all sorts of offenses that the Court seems to deem “minor.” Ante
, at 8.
For example, common law authorities describe with approval warrantless home entry in pursuit of those who had committed an affray (public fighting), 1 W. Hawkins, Pleas of the Crown 137 (1716), and “disorderly drinking,” W. Simpson, The Practical Justice of the Peace and the Parish Officer 26 (1761). And the doctrine of “hue and cry” permitted townspeople to pursue those suspected of “misdemeanor[s]” if the perpetrator “escape[d] into [his] house.” R. Bevill, Law of Homicide 162–163 (1799). In colonial America, the hue and cry extended to a “great diversity of crimes,” including stealing livestock and revealing oneself to be a Quaker. W. Cuddihy, The
Fourth Amendment: Origins and Original Meaning 244–246 (2009).
Finally, at common law an officer could “break open Doors, in order to apprehend Offenders” whenever a person was arrested for “any Cause
,” and thereafter escaped. 2 Hawkins, Pleas of the Crown, at 86–87 (1787) (emphasis added). The Court’s attempt to dispose of this awkward reality in a footnote, ante,
at 14, n. 5, is unconvincing. Flight and escape both present attempts to “thwart an otherwise proper arrest,” Santana
, 427 U. S., at 42,
and as noted, the common law did not differentiate among escapees based on the perceived magnitude of their underlying offense, R. Burn, The Justice of the Peace 101–103 (14th ed. 1780).
Clearly the list of offenses that historically justified warrantless home entry in hot pursuit of a fleeing suspect were as broad and varied as those found in a contemporary compilation of misdemeanors. See also Macooh
,  2 S. C. R., at 817 (concluding after review that at common law “the right to enter in hot pursuit” was not “limited to arrest for felonies”); Lyons
,  2 S. C. R. 633, 657 (recognizing “right of pursuit” as a longstanding exception to common law protection of the sanctity of the home).
In the face of this evidence, the Court fails to cite a single circumstance in which warrantless entry in hot pursuit was found to be unlawful at common law. It then acknowledges that “some of the specifics are uncertain, and commentators did not always agree with each other.” Ante,
at 14. In Atwater,
we declined to forbid warrantless arrests for minor offenses when we found “disagreement, not unanimity, among both the common-law jurists and the text writers who sought to pull the cases together.” 532 U. S., at 332. The historical ambiguity is at least as pervasive here.
Even if the common law practice surrounding hot pursuit were unassailably clear, its treatment of the topic before us would still be incomplete. That is because the common law did not recognize the remedy Lange seeks: exclusion of evidence in a criminal case. Collins
, 584 U. S., at ___ (slip op., at 2) (Thomas, J., concurring). It is often difficult to conceive of how common law rights were influenced by the absence of modern remedies. And in this case we have no guidance from history as to how our doctrines surrounding the exclusionary rule, such as inevitable discovery, would map onto situations in which a person attempts to thwart a public arrest by retreating to a private place. See Nix
467 U.S. 431
, 443–444 (1984).
* * *
Recall the assault we started with. The officer was closing in on the suspect when he hopped the fence and stopped in a yard. The officer starts to climb over the fence to arrest him, but wait—was the assault a misdemeanor or a felony? In Lange’s State of California, it could have been either depending on the identity of the victim, the amount of force used, and whether there was a weapon involved. See Cal. Penal Code Ann. §245 (West 2014). How much force was the man using against the teenager? Is this really the assailant’s home in the first place? Pretty suspicious that he jumped the fence just as the officer was about to grab him. If it is his home, are there people inside and, if so, how many? And why would the man run from a mere fight—does he have something more serious to hide?
By this time, of course, the assailant has probably gone out the back door or down the fire escape and is blocks away, with the officer unable to give a useful description—except for how he looks from behind.