Lange was playing loud music with his car windows down and honking his horn when he happened past a California highway patrol officer. The officer turned on his lights to pull Lange over, but Lange was close to home: he continued 100 feet and pulled into his garage. The officer entered the garage and ultimately arrested Lange for misdemeanor drunk driving. The California Court of Appeal held that “hot pursuit” is always an exigency: that is, it excuses an officer from needing a warrant to enter the home, even when the officer is pursuing someone suspected of a misdemeanor. This is the position our state supreme court has adopted as well. State v. Ferguson, 2009 WI 50, ¶¶20-30, 317 Wis. 2d 586, 767 N.W.2d 187. The Supreme Court now rejects this per se rule, holding that the usual “totality of the circumstances” test must govern whether warrantless intrusion of the home is justified.
As with Torres v. Madrid from earlier this term, we are treated to dueling citations of antient cases and treatises. But the upshot for the practitioner is pretty straightforward: if an officer has pursued your client into the home to make an arrest for a suspected misdemeanor, it was probably–but not necessarily–legal:
Our Fourth Amendment precedents thus point toward assessing case by case the exigencies arising from misdemeanants’ flight. That approach will in many, if not most, cases allow a warrantless home entry. When the totality of circumstances shows an emergency—such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home—the police may act without waiting. And those circumstances, as described just above, include the flight itself. But the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency. When the nature of the crime, the nature of the flight, and surrounding facts present no such exigency, officers must respect the sanctity of the home—which means that they must get a warrant.
(Slip op. at 11-12).