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WASHINGTON – Arthur Lange was 30 yards from his driveway when the California patrol officer behind him turned on his flashing lights. Rather than stop, Lange turned to his Sonoma County home, entered his garage, and closed the door.

What transpired over the next few seconds sparked years of litigation and a case to be debated in the Supreme Court on Wednesday with far-reaching implications for police power.

As Lange’s garage door rolled down that October night, 2016, Officer Aaron Weikert got out of his car and stuck his foot under her, triggering the sensor that sent her back.

“Didn’t you see me behind you?” the officer asked Lange, who replied no. As Lange spoke, the Weikert smelled alcohol on his breath. A test later revealed that Lange’s blood alcohol content was three times the legal limit and he was charged with DUI.

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The question at the heart of the exchange: whether Weikert was on constitutionally shaky ground when he walked into Lange’s garage without a warrant.

Police are generally required to have a warrant to enter someone’s home under the 4th Amendment ban on “unreasonable searches”. But the courts have allowed exceptions when an officer is “in pursuit” of a suspect suspected of committing a crime. In Lange’s case, the police could only report his inability to stop, a misdemeanor.

While the difference may seem moot, civil liberty groups say the case could significantly expand police powers due to the scale of the misdemeanor charges. Could a police officer prepare a minor offense to justify a pursuit and search? Crimes can be serious, but they also include littering, jaywalking, and disfiguring dollar bills.

Courts across the country have come to different answers to the question at issue in the case. According to Lange’s lawyers, five state supreme courts have ruled that a misdemeanor prosecution warrants a warrantless entry, while three state courts and two federal appeals courts say the issue should be considered at case by case.

“The courts are all over the place on this,” said Larry James, general counsel for the National Fraternal Order of Police, who filed a brief in the case in Weikert’s favor. “The question is whether the Supreme Court of the United States should establish the law of the land.”

In this file photo from November 5, 2020, the Supreme Court is seen in Washington.

The Fourth Amendment questions have unusually divided the Supreme Court, with Liberal Justice Stephen Breyer sometimes joining the Conservatives and the late Justice Antonin Scalia sometimes siding with the Liberals. Last fall, Justice Neil Gorsuch called a decision in Vermont allowing game wardens to look inside a warrantless garage an “error.”

Gorsuch, appointed by President Donald Trump, was joined by Justices Sonia Sotomayor and Elena Kagan, both appointed by President Barack Obama.

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Lange’s case comes to court at a time of tension between police and communities of color after the police murder last year of George Floyd, a 46-year-old black man. The incident, and others like it, sparked nationwide protests and riots over the summer, forcing a national discussion on racism and the use of force by police.

One such incident was the 2020 gunshot death of Breonna Taylor, 26, after police entered her Louisville, Ky. Apartment during a drug investigation. The police had obtained a warrant of “not guilty”, allowing them to carry out a search without notification. The city subsequently banned warrants without striking.

Some observers have said that expanding the circumstances under which a police officer can enter a home without a warrant could exacerbate the strained relationship.

“It wouldn’t open the door, it would open the floodgates for police entering a house,” said Alexandra Natapoff, a Harvard law professor who has written extensively on the proliferation of crimes. “It looks like this is exactly the answer back to everything we’ve learned from George Floyd and Black Lives Matter.”

On the flip side, some advocates say allowing a suspect to rush into a house to avoid a possible arrest creates another set of problems for police. Officers cannot always immediately determine whether a suspected drunk driver may commit a felony or misdemeanor, for example, a distinction that may turn on factors such as blood alcohol levels, previous convictions or whether a child is in the car.

If Weikert had waited for a warrant, could Lange have claimed he didn’t start drinking until after he got home? Or could he have waited for the police long enough to sober up?

“Time degrades the evidence,” said Alex Otte, president of Mothers Against Drunk Driving, which advocates a categorical exception to the warrant requirement in cases where police pursue a misdemeanor suspect. “Even though this is a real offense, they should still be forced to face the consequences of their potentially fatal choice.”

The case went to the United States Supreme Court after the California Supreme Court refused to hear it, allowing the decision of a lower court that sided with the police to stand.

While the California State Court of Appeals ruling created the general warrant exception for misdemeanor prosecution, the state of California itself does not defend that power for the police. California attorneys argue that Weikert’s actions were a good faith effort to adhere to state law.

Instead, the Supreme Court appointed a lawyer to defend the tort exception.

“There is nothing reasonable in allowing an offender to defeat a lawful public arrest by running away into a house,” lawyer Amanda Rice told the court. “This is true regardless of whether the underlying crime is classified as a felony or a misdemeanor.”

This article originally appeared on USA TODAY: Supreme Court Debates When Police Can Conduct Warrantless Search



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