Federal Appeals Blog

Lange v. California

No. 20-18

Supreme Court

Decided on June 23, 2021

Issue:

Does a Fleeing Misdemeanant Suspect Grant a Warrantless Entry?

Whether police were entitled to a warrantless entry into defendant Lange’s home where they signaled for defendant to pull over on the street, but because he was 100 feet from his driveway, Lange instead pulled into his attached garage where the officer followed him into the garage, completed sobriety tests, and charged him with misdemeanor driving under the influence.

Holding:

Pursuit of Fleeing Suspect Is Not Necessarily An Exigent Circumstance

The Court held that an officer may make a warrantless entry when “the exigencies of the situation” create a compelling law enforcement need. The pursuit of a fleeing misdemeanant suspect does not categorically qualify as an exigent circumstance, as warrantless entry is decided on a case-by-case basis. The Court has held that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry. See Welsh, 466 U.S. 740, 742-742. Add a suspect’s flight and the calculus changes, but not enough to justify a categorical rule.

Facts:

Defendant Arthur Lange drove past a California highway patrol officer while listening to loud music with his windows down and repeatedly honking his horn. The officer began to tail Lange, and soon afterward turned on his overhead lights to signal defendant to pull over. By that time, Lange was 100 feet from his driveway, so he continued to his home and entered his attached garage. The officer followed Lange in and began questioning him. Observing signs of intoxication, the officer put Lange through field sobriety tests and a later blood test showed his BAC was more than three times the legal limit.

The State charged Lange with misdemeanor driving under the influence and a noise infraction. Lange moved to suppress all evidence obtained after the officer entered the garage, arguing that the warrantless entry violated the Fourth Amendment. The Superior Court denied Lange’s motion, and its appellate division affirmed. The Court of Appeals also affirmed, concluding that Lange’s failure to pull over when the officer flashed his lights created probable cause to arrest Lange for the misdemeanor of failing to comply with a police signal. It stated that Lange could not defeat an arrest begun in public by retreating to his home. The pursuit of a suspected misdemeanant, the court held, is always permissible under the exigent-circumstances exception to the warrant requirement. The California Supreme Court denied review.

Analysis:

Fourth Amendment Sanctifies the Home

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Court holds that when it comes to the Fourth Amendment, “the home is first among equals,” and that “Freedom” in one’s own “dwelling is the archetype of the privacy protection secured by the amendment.” Conversely, “physical entry of the home is the chief evil against which it is directed.” Payton v. New York, 445 U.S. 573, 585, 587 (1980). The Court has, therefore, repeatedly declined to expand the scope of exceptions to the warrant requirement and is “not eager…to print a new permission slip for entering the home without a warrant.”

‘Now or Never’ Warrant Exceptions under the Fourth Amendment

The Fourth Amendment warrant requirement is subject to certain exceptions. An officer may make a warrantless entry when the “exigencies of the situation,” considered in a case-specific way, create “a compelling need for official action and no time to secure a warrant.” Kentucky v. King, 563 U.S. 452, 460; Missouri v McNeely, 569 U.S. 141, 149.

The Court has identified several such exigencies. For example, an officer may enter a home without a warrant to render emergency assistance to an injured occupant, to protect an occupant from imminent injury, or to ensure his own safety. Police may also make a warrantless entry to “prevent the imminent destruction of evidence” or to “prevent a suspect’s escape.” (Brigham City, 547 U.S. at 403.) In those circumstances, the delay required to obtain a warrant would bring about “some real immediate and serious  consequences” and so the absence of a warrant is excused. Welsh v. Wisconsin, 466 U.S. 740, 751 (1984).

The exception requires a court to examine whether an emergency justified a warrantless search in each particular case. The Court must determine whether a “now or never situation” actually exists; whether an officer has “no time to secure a warrant” depends upon facts on the ground.

The State contended in this case that a suspect’s flight always supplies the exigency needed to justify a warrantless home entry and that the Court endorsed such a categorical approach in United States v Santana, 427 U.S. 38. The Court disagrees. In Santana the Court upheld a warrantless entry made during a “hot pursuit” of a felony suspect, stating that Santana’s “act of retreating into her house” could “not defeat an arrest” that “had been set in motion in a public place” (Id. at 42-42). But even if Santana treated fleeing-felon cases categorically, it doesn’t establish a flat rule permitting warrantless entry whenever police pursue a fleeing misdemeanant. As the Court noted in a later case, “the law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not clearly established” one way or the other. Stanton v. Sims 571, U.S. 3, 8, 10.

Misdemeanant Flight Doesn’t Categorically Create Exigencies

The Court has held that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry. See Welsh, 466 U.S. 740, 742-742. Add a suspect’s flight and the calculus changes, but not enough to justify a categorical rule. In many cases flight creates a need for police to act swiftly, but no evidence suggest that every case of misdemeanor flight creates such a need.

In Welsh, officers responded to a call about a drunk driver only to discover he had abandoned his vehicle and walked home. The officers then went to the driver’s house, entered without a warrant, and arrested him for a “nonjailable offense.” The State argued that exigent circumstances supported the warrantless entry because the driver’s “blood-alcohol level might have dissipated while the police obtained a warrant.” But the Court rejected that argument on the ground that the driver had been charged with only a minor offense. “The gravity of the underlying offense,” the Court explained,” is “an important factor to be considered when determining whether any exigency exists.” With Welsh the Court concluded that “application of the exigent-circumstances exception in the context of home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense” is involved.

Thus, the Court’s Fourth Amendment precedents point toward assessing case by case the exigencies arising from misdemeanant’s flight. When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—police may act without waiting. But when the nature of the crime, the nature of the flight, and the surrounding facts present no such exigency, offers must respect the sanctity of the home by getting a warrant. The case was therefore vacated and remanded.

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Rehaif v. U.S.

139 S. Ct. 2191

Decided on June 21, 2019

Issue:

Prosecuting Unlawful Possession of Firearm

Whether the Government must prove that defendant Rehaif knowingly violated 18 U.S.C. § 922(g), which prohibits unlawful aliens from possessing a firearm by proving that 1) he knew that he possessed a firearm and 2) he knew his immigration status as unlawful alien after his student visa had been terminated when he was dismissed from university, and he did not re-enroll or leave the country.

Holding:

Mens Rea Requirement

The Supreme Court held that prosecutions under § 922(g) and § 924(a)(2) require the Government to prove 1) that a defendant knowingly possessed a firearm and 2) that he knew his status as an illegal immigrant barred him from possessing a firearm.

Facts:

Hamid Rehaif entered the U.S. on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “immigration status” would be terminated unless he transferred to a different university or left the country. Rehaif then started visiting a firing range and staying at a hotel where he “demanded a room…facing the airport.” Each morning he checked out and paid his bill with cash. A hotel employee told the FBI that Rehaif claimed to have weapons in his room. He was arrested and charged under § 922(g) for possession of a firearm as an alien unlawfully in the U.S. A separate provision, § 924(a)(2) adds that anyone who “knowingly violates’ the first provision shall be fined or imprisoned for up to 10 years.

At the trial’s closing, the judge instructed the jury that the “United States is not required to prove” that Rehaif  “knew that he was illegally or unlawfully in the U.S.” He was sentenced to 18 months’ imprisonment.  Rehaif appealed, arguing that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Eleventh Circuit Court of Appeals concluded that the jury instruction was correct, and it affirmed Rehaif’s conviction.

Analysis:

Scienter Presumption

Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. In determining Congress’ intent, the Supreme Court starts from a presumption traceable to the common law that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct” (U.S. v. X-Citement Video, Inc. 513 U.S.  64, 72, 115 S. Ct. 464, 130 L. Ed .2d 372 (1994)). The Court characterizes this interpretive maxim as a presumption in favor of “scienter,” meaning that criminal statutes require the degree of knowledge sufficient to “make a person legally responsible for the consequences of his or her act of omission.” Scienter requirements help to “separate those who understand the wrongful nature of their act from those who do not” (Id. at 72-73).

Statutory Language Specifies ‘Knowingly’

The Court does not depart from the ordinary presumption of scienter here. The text of 18 U.S.C. § 924(a)(2) states that “whoever knowingly violates” certain subsections of § 922, including § 922(g) shall be subject to penalties of up to 10 years’ imprisonment. Section 922 (g) states that it “shall be unlawful for any person…being an alien…illegally or unlawfully in the U.S.” to “possess in or affecting commerce, any firearm or ammunition.” The term “knowingly” modifies the verb “violates” and its direct object, which is in this case § 922(g). As a “matter of ordinary English grammar,” we normally read the statutory term “knowingly” as applying to all the subsequently listed elements of the crime,” (Flores-Figueroa v. U.S., tty U.S. 646, 650, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009)). Thus, the term “knowingly” applies to the statute’s possession element, as well as the status element. The Court held that the Government is therefore required to establish that the defendant knew he violated the material elements of the statute.

‘Knowing’ = Requisite Mental State

The Government argued that whether an alien is unlawfully in the U.S. is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” is no excuse. Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112, L.Ed.2d 617 (1991)).  The Court held, however, that this maxim applies where a defendant has the requisite mental state in respect to the elements of the crime but claims to be “unaware of the existence of a statute proscribing his conduct” (1 W. LaFave & A. Scott, Substantive Criminal Law § 5.1(a), p. 575 (1986)). In contrast, the maxim does not apply where a defendant has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense.

The defendant’s status as an alien “illegally or unlawfully in the United States,” refers to a legal matter, but this legal matter is a “collateral” question of law. A defendant who does not know that he is an alien unlawfully in the U.S. does not have the guilty state of mind that the statute’s language and purposes require.

The Court therefore concludes that in order to prosecute under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and knew that he belonged to the relevant category of persons barred from possession. The Court reversed the judgment and remanded the case.

Greer v U.S.

Supreme Court

Decided on June 14, 2021

Issue:

Unpreserved Claims On Appeal: Plain Error Review

Whether defendants Greer and Gary are entitled to a plain-error review following the Court’s Rehaif decision where, prior to Rehaif, the district court judge did not instruct the jury of the mens rea requirement to prove that each violated 18 U.S.C. § 922(g)(1) when he 1) knew he possessed a firearm and 2) knew his status as a felon at the time of possession.

Holding:

Plain Error Review On Appeal: Defendants Carry Burden on Appeal to Prove They Did Not Know They Were Felons

The Court held that in felon-in-possession cases, a Rehaif error is not a basis for a plain-error review unless defendant argues on appeal that he would have presented evidence at trial that he did not in fact know his status as a felon barred possession.

Facts:

Prior to Rehaif, Gregory Greer and Michael Gary were separately convicted of being felons in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Greer’s conviction resulted from a jury trial during which Greer did not request—and the District Court did not give—a jury instruction requiring the jury to find that Greer knew he was a felon when he possessed the firearm.

Gary pled guilty to being a felon in possession of a firearm. During Gary’s plea colloquy, the District Court did not advise Gary that, if he went to trial, a jury would have to find that he knew he was a felon when he possessed the firearms. On appeal, both Greer and Gary raised new mens rea arguments based on Rehaif. Greer requested a new trial based on the court’s failure to instruct the jury that he had to know he was a felon to be found guilty. The Eleventh Circuit rejected that argument.

Meanwhile, Gary argued that his plea guilty must be vacated because the court failed to advise him that if he went to trial, a jury would have to find that he knew he was a felon. The Fourth Circuit agreed with Gary, holding that the failure to advise him of that mens rea element was a structural error that required automatic reversal even though Gary had not raised the argument in District Court.

Analysis:

Three-Prong Test Applied In Plain-Error Review

Under Rule 51(b) of the Federal Rules of Criminal Procedure, a defendant who has “an opportunity to object” to an alleged error and fails to do so forfeits the claim of error. If, as with Greer and Gary here, a defendant later raises the forfeited claim on appeal, Rule 52(b)’s plain-error standard applies. To establish eligibility for plain-error review a defendant must show i) that there was error, ii) that the error was plain, and iii) that the error affects “substantial rights,” and that there is “a reasonable probability that, but for the error, the outcome of the proceeding would have been different” (Rosales-Mireles v. U.S., 585 U.S. 138 S. Ct. 1897, 1904-05). If the defendant satisfies those three prongs, an appellate court may grant relief only if it also concludes the error had a serious effect on “the fairness, integrity or public reputation of judicial proceedings” (Ibid).

Plain Error Review: “Substantial Rights” Prong is Difficult to Meet for Felon-in-Possession

It is undisputed that Rehaif errors occurred during Greer and Gary’s district court proceedings and the errors were plain. For the third “substantial rights” prong, Greer must show that, if the court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability that he would have been acquitted. Gary must show that, if the court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty. The Court explained that this third prong is difficult to meet in felon-in-possession charges, because “felony status is simply not the kind of thing that one forgets.” 963 F.3d 420, 423 (C.A.4 2020) (Wilkinson, J., concurring in denial of reh’g en banc).

Generally Speaking: Felons Know They Are Felons

The Court held that Greer and Gary failed to meet the third prong of the plain-error review. Both men had been convicted of multiple felonies prior to their respective possession offenses, and those prior convictions are substantial evidence that they knew they were felons. Neither defendant argued or made a representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon when he possessed a firearm. At trial, Greer stipulated to the fact that he was a felon, and Gary admitted that he was a felon when he pled guilty. The men cannot show, therefore, that but for the Rehaif errors, there is a “reasonable probability” that their proceedings would have been different.

The Court held that in felon-in-possession case, a Rehaif error is not a basis for plain-error belief unless a defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that did not in fact know he was a felon. When a defendant advances such an argument on appeal, the court must determine whether the defendant has carried the burden of showing a “reasonable probability” that the outcome of the district court proceeding would have been different. The Supreme Court affirmed the judgment of the Eleventh Circuit and reversed the judgment of the Fourth Circuit.