In Newman v. Underhill,[1] the Ninth Circuit Court of Appeals found that the hot-pursuit exception to the warrant requirement applied in affirming summary judgment for deputies where they entered a plaintiff’s home without a warrant while pursuing a fleeing suspect. In reaching its conclusion, the Court held that, as a matter of law, (1) the deputies had probable cause for the entry; and (2) that their pursuit of the suspect constituted an exigent situation justifying the entry because the deputies were in immediate and continuous pursuit of the suspect from the scene of the crime at the moment they made entry.
Background
In the early hours of July 27, 2022, San Bernardino County Sheriff’s Department Deputy Todd Underhill attempted to pull over a black Chevy Silverado that had an expired registration and an unilluminated license plate. The Silverado’s driver, later identified as Richard Delacruz, fled. Underhill immediately pursued. Eventually, Delacruz got out of his truck on a dead-end street and ran away on foot. Underhill pursued on foot, stopping briefly to clear the Silverado before continuing the pursuit. Having lost sight of Delacruz, Underhill reported to dispatch that Delacruz had been “[l]ast seen toward the residence at 4083 Camellia Drive.” The house at that location was on a hill, with “drop offs” between it and adjacent properties and with fencing around the perimeter of the backyard. In some places, this fence was only waist high.
Underhill ran toward the house’s backyard and, not seeing Delacruz, decided to wait for backup before continuing the pursuit. Deputy Jonathan Barmer arrived roughly two minutes later. According to the transcript of the audio from Underhill’s belt recorder, Underhill told Barmer that Delacruz had gone “somewhere over to the rear of the residence.” Underhill also stated that he “th[ought],” but did not “know,” that Delacruz “may” have entered the home. Underhill and Barmer searched the backyard for Delacruz with their flashlights, while deputies in a Sheriff’s Department helicopter looked for heat signatures from overhead. The deputies neither saw any sign of Delacruz nor heard any noises—such as the rattling of a fence—to suggest that he had left the backyard. The deputies in the helicopter detected heat coming from the home but could not confirm who or what was emitting it.
During or shortly after inspecting the backyard, Underhill noticed something about the backdoor of the house. Underhill’s belt-recorder first captured him saying: “Yeah[,] because he came and locked that door, dude.” Underhill was also recorded stating: “We got an unlocked rear door.” Underhill later testified at his deposition that the backdoor had been “slightly ajar[].”
About seven minutes after Delacruz fled his truck on foot, Underhill began announcing the Sheriff’s Department’s presence and ordering any occupants of the home to exit. Underhill continued to make those announcements for another two minutes. During that period, Underhill heard at least one voice coming from inside the house, and Deputy Lauren Laidlaw arrived at the scene.
Approximately nine minutes after last seeing Delacruz, Underhill, Laidlaw and Barmer entered the home through the back door. Hearing a voice coming from elsewhere in the house, Underhill found a room where he discovered the owner of the house, Plaintiff Michael Newman, who is “a quadriplegic in a wheelchair.” During their conversation, Plaintiff told Underhill that his roommate drove a black Chevy Silverado. About eight minutes after Underhill entered the house, Sergeant James Blankenship joined Underhill and Plaintiff. After another four minutes of conversation, Plaintiff gave the officers consent to look for his roommate in a different part of the house. The officers soon found and arrested Delacruz. He was later convicted of a felony for evading a peace officer with wanton disregard for safety, in violation of California Vehicle Code section 2800.2(a).
Plaintiff sued Defendants Underhill, Laidlaw, and Blankenship, asserting, inter alia, a claim under 42 U.S.C. section 1983 for unreasonable search in violation of the Fourth Amendment. The District Court entered summary judgment in favor of Defendants on all claims. Plaintiff appealed.
Discussion
Plaintiff’s claims were based on the allegation that Defendants violated Plaintiff’s Fourth Amendment rights when they entered his home without a warrant. The Ninth Circuit Court of Appeals explained that under the Fourth Amendment’s guarantee against unreasonable searches, one’s home is “the most constitutionally protected place on earth.” United States v. Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008). The government ordinarily may not search someone’s home without “a criminal warrant supported by probable cause.” United States v. Grey, 959 F.3d 1166, 1177 (9th Cir. 2020).
The Ninth Circuit noted, however, there are a few narrow exceptions to the warrant requirement. The Court observed that “the exigencies of [a] situation” sometimes “make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.”[2] Situations involving “the hot pursuit of a fleeing suspect” can fit that description. United States v. Struckman, 603 F.3d 731, 743 (9th Cir. 2010). The Court noted that underlying this hot-pursuit exception is the principle that “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.” United States v. Santana, 427 U.S. 38, 43 (1976).
The Court explained that to rely on the hot-pursuit exception, Defendants would have to establish that (1) they had probable cause to search Plaintiff’s home and (2) “exigent circumstances”—here, the pursuit of a fleeing suspect—”justified the warrantless intrusion.” United States v. Johnson, 256 F.3d 895, 905 (9th Cir. 2001) (en banc) (per curiam).
The Ninth Circuit stated that to establish probable cause in this case, Defendants had to show that, when Underhill entered Plaintiff’s home, “the ‘facts and circumstances’ before [him were] sufficient to warrant a person of reasonable caution to believe” that Delacruz would be found therein. Id. at 905. “[P]robable cause means ‘fair probability,’ not certainty or even a preponderance of the evidence.” United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc). “Whether there is a fair probability . . . is a ‘commonsense, practical question’” that “depends upon the totality of the circumstances, including reasonable inferences.” United States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007) (quoting Gourde, 440 F.3d at 1069).
The Court noted that the following facts were undisputed: (1) Underhill saw Delacruz running toward the back of the house; (2) Underhill, having searched the area, knew that Delacruz was not hiding in the backyard; (3) if Delacruz had tried to move from the backyard to an adjacent property, he would have been hindered by fencing and by drop-offs in the terrain; (4) Underhill found the backdoor unlocked; and (5) Underhill perceived someone interacting with the backdoor at some point during the pursuit. The Court concluded that with these circumstances, a reasonable person in Underhill’s shoes would have believed that there was at least a fair probability that Delacruz was in Plaintiff’s home. The Court of Appeals held that, as a matter of law, Defendants had probable cause to believe that Delacruz was inside Plaintiff’s home.
Regarding the second requirement of the hot-pursuit exception, Defendants needed to show that Underhill’s pursuit of Delacruz constituted an exigent situation justifying the entry into Plaintiff’s home. Johnson, 256 F.3d at 907. The Court noted that in the Ninth Circuit, a “hot pursuit” excuses a warrantless intrusion into the home only if the “officers [were] in ‘immediate’ and ‘continuous’ pursuit of a suspect from the scene of the crime” at the moment they made entry. Id. (quoting Welsh v. Wisconsin, 466 U.S. 740, 753 (1984)).[3]
The Court stated that it was undisputed that Underhill gave chase “immediately” after seeing Delacruz fail to yield to a traffic stop—thereby committing a felony—and flee in his truck. The Court explained that Johnson made clear that an officer satisfies the requirement of immediacy if the officer gives chase as soon as the suspect flees from the scene of the crime. See id. at 907 (asking whether the officers were in “immediate . . . pursuit of a suspect from the scene of the crime” (emphasis added) (internal quotation marks omitted)).
Plaintiff argued that, because nine minutes elapsed between Underhill’s losing sight of Delacruz and Underhill’s entering Plaintiff’s home, a genuine dispute of material fact existed regarding the continuity of the pursuit. The Court noted that in Johnson, the suspect fled into the woods, and the officer—concerned for his safety—decided not to follow until backup arrived. While waiting for his colleagues for backup, the officer did not monitor the suspect’s movements, but instead returned to the scene of his initial confrontation with the suspect to retrieve an item that he had dropped earlier. Thirty minutes passed, during which time the suspect “was free to run,” and during which time the police neither saw the suspect nor “received [any] new information about where [he] had gone.” Id. at 908. Addressing the hot-pursuit exception, Johnson made clear that, in certain circumstances, the decision to wait for backup “delay[s], but [does] not br[eak],” the “‘continuity’ of the chase.” Id. The Johnson Court decided that because the officers in Johnson had no clue where the suspect was for more than 30 minutes, the chase’s continuity had been “clearly broken.” Id.
Here, the Ninth Circuit discerned two considerations underlying the distinction that Johnson drew between “delayed continuity” and “broken continuity.” First, whether, and to what degree, the officers lost track of the suspect’s whereabouts. On one end of the spectrum, the continuity of the chase is more likely to survive when “police officers always kn[o]w exactly where the suspect [is].” Id. On the other end were cases like Johnson, in which the officers “no longer had any idea where [the suspect] was” by the time they resumed their search. Id. Second, whether the officers, after losing sight of the suspect, continued to act with speed in attempting to apprehend the suspect. Relevant to both considerations is the question of timing. The more time passes without the officer’s physically chasing after the suspect—whether because the officer loses track of the suspect or because the officer stops attempting to apprehend the suspect—the more likely the continuity of the chase is to break.
Applying those principles to the undisputed facts here, the Ninth Circuit concluded that, when Underhill entered Plaintiff’s home, the continuity of the chase remained intact. The Court explained that the nine-minute “pause” identified by Plaintiff was far shorter than the 30-minute period at issue in Johnson. The undisputed evidence supporting the existence of probable cause also demonstrated that, during those nine minutes, Underhill had a reasonably good idea where Delacruz was hiding. Unlike the officer in Johnson, Underhill did not leave the trail to await backup. Underhill spent most, if not all, of the nine minutes in question actively working to find and apprehend Delacruz. He searched the backyard, announced the Sheriff’s Department’s presence, and coordinated with fellow officers—including those keeping watch from a helicopter. Plaintiff presented no evidence that Defendants ceased their pursuit of Delacruz after Underhill lost sight of him. The Ninth Circuit determined that there was no genuine issue of material fact suggesting that the continuity of the chase was broken before Underhill entered Plaintiff’s home.
The Ninth Circuit held that Defendants had satisfied both requirements of the hot-pursuit exception as a matter of law, and, accordingly, affirmed.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit in this case stated that a “hot pursuit” excuses a warrantless intrusion into the home only if the officers [were] in immediate and continuous pursuit of a suspect from the scene of the crime at the moment they made entry. Agencies may observe that, regarding the “continuous” aspect, the Court elicited two considerations from Johnson to differentiate between “delayed continuity” and “broken continuity.” First, whether, and to what degree, the officers lose track of the suspect’s whereabouts. Second, whether the officers, after losing sight of the suspect, continued to act with speed in attempting to apprehend the suspect. It is important to note that the more time passes without the officer’s physically pursuing the suspect—whether because the officer loses track of the suspect or because the officer stops attempting to apprehend the suspect—the more likely a court would deem the continuity of the chase to be broken and not apply the hot-pursuit exception.
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[1] 2025 U.S. App. LEXIS 9655 (9th Cir. Apr. 23, 2025).
[2] Lange v. California, 594 U.S. 295, 301 (2021) (second alteration in original) (quoting Kentucky v. King, 563 U.S. 452, 460 (2011)).
[3] The Court stated that there are other relevant considerations, but indicated that those considerations were not at issue here.