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Undermining the Fourth: Police—in ‘Hot Pursuit’ Over Driver’s Loud Music—Follow Car, Carry Out Warrantless Home Invasion

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Published on: January 1, 2021

WASHINGTON, D.C. — Pushing back against efforts to dismantle the constitutional right to be secure in one’s home from unreasonable searches and seizures by government agents, The Rutherford Institute is challenging an attempt by police to justify carrying out a warrantless home invasion of a man who honked his horn several times and had his music turned up while driving. In an amicus brief filed in Lange v. State of California, Rutherford Institute attorneys have asked the U.S. Supreme Court to ensure that police do not use the “hot pursuit” exception to the warrant requirement as a means of sidestepping the Fourth Amendment. Institute attorneys have also asked the Court to overturn the lower court’s ruling that police, engaged in “hot pursuit” of a suspect over of a dubious traffic infraction, were justified in following the driver into his garage and questioning him without a warrant.

Affiliate attorneys Michael Kimberly, Ethan Townsend, and Brett Meyerhoff of McDermott, Will & Emery LLP in Washington, D.C. assisted The Rutherford Institute in advancing the arguments in Lange.

“Police have been given free rein to pull anyone over for a variety of dubious reasons, resulting in drivers being stopped for windows that are too heavily tinted, for driving too fast, driving too slow, failing to maintain speed,  improper lane changes, distracted driving, screeching a car’s tires, and leaving a parked car door open for too long,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “To allow police to pursue drivers and carry out warrantless invasions of their homes merely for daring to play their car music too loudly or honking their horns flies in the face of everything the Fourth Amendment is supposed to protect.”

Driving back to his home in a neighborhood in Sonoma, Calif., on an evening in October 2016, Arthur Lange had the music in his vehicle turned up loud and his windows open. He also honked his horn several times as he was driving. Taking notice of the sounds coming from Lange’s vehicle and believing these might constitute minor misdemeanor infractions punishable only by small fines, a highway patrol officer followed him all the way home. Not until Lange had pulled into his driveway and parked his car in the garage did the officer activate his overhead lights to signify that he wanted Lange to pull over.  The officer pulled into the driveway after Lange had parked his car and the garage door began closing. The officer then exited his vehicle, approached the closing garage, thrust his foot under the door, causing it to reopen, and entered the garage unannounced and uninvited. He proceeded to question Lange. After Lange produces his license and registration and answered more questions, the officer stated that he smelled alcohol on Lange and demanded he submit to sobriety testing. Lange was arrested and charged with driving while intoxicated. In court, Lange argued that the officer’s warrantless entry into his garage violated the Fourth Amendment. The California courts rejected Lange’s claim, ruling that the entry into the residence was allowed under the “hot pursuit” exception to the warrant requirement. On appeal to the U.S. Supreme Court, Rutherford Institute attorneys argue that the sanctity of the home must prevail over any interest police might have in engaging in “hot pursuit” of citizens suspected of committing nonviolent misdemeanors.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

The amicus brief in Lange v. State of California

Article posted with permission from John Whitehead

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