Vol. 27 No. 22 – Hot Pursuit of Misdemeanants and Warranteless Entry Into A Home and/or Its Curtilage



On December 3, 2012, the Ninth Circuit U.S. Court of Appeals held, in Sims v. Stanton, 2012 U.S. App. Lexis 24803 (9th Cir. Cal.), that the hot pursuit exception to the warrant requirement to enter a home, generally requires the fleeing suspect be a felon. Only in rare cases will hot pursuit of a misdemeanor suspect into a home be justified under the hot pursuit exception.

It has been brought to our attention that an opinion has been rendered that this decision is unique, creates great danger to law enforcement officers, and was decided in error. However, the decision follows a significant line of cases dating back many years which emphasize both the restrictions on warrantless entries into a person’s home, and the fact that the protections against government intrusion include the “curtilage” around the home.

Unfortunately, because of that line of cases, the court denied the officer qualified immunity from civil liability for the harm caused the owner of the home, when the officer forcibly entered the property and injured the homeowner.


On May 27, 2008 at approximately one o’clock in the morning, Officer Stanton and his partner responded to a radio call regarding an “unknown disturbance” in the street involving a person with a baseball bat. The area was known for gang problems and violence. The officers were in uniforms and in a marked unit.

“The officers noticed three men walking in the street. Upon seeing the car, two of the men turned into a nearby apartment complex. The third, who turned out to be (Nicholas) Patrick, crossed the street about twenty-five yards in front of the police car and walked quickly toward Sims’s home, which was located in the same direction as the police car. Neither officer saw Patrick with a baseball bat or any other possible weapon. The officers had no information that would link Patrick to the disturbance. Nor did the officers observe any conduct on Patrick’s part that would suggest that he had been involved in the disturbance that they had been called to investigate.”

“According to Stanton’s version of the facts, he exited the patrol car, announced “police,” and ordered Patrick to stop multiple times in a voice that was loud enough that all persons in the area would have heard his commands. Whether Patrick heard the commands or not, he did not stop. Instead, he entered the gate to Sims’s front yard and the gate shut behind him. Believing that Patrick was disobeying his lawful order (a misdemeanor offense under California Penal Code § 148) and “fearing for [his] safety,” Stanton made a “split-second decision” to kick open the gate to Sims’s yard.” The gate Stanton kicked open is part of a fence made of “sturdy, solid wood” that is more than six feet tall, enclosing the front yard to Sims’s home.

“Sims was standing behind the gate when it flew open, striking her and sending her into the front stairs. She was temporarily knocked unconscious, or at least became incoherent, as a result of the blow and sustained a laceration on her forehead, an injury to her shoulder, and was taken to the hospital.”

Sims’s filed suit in federal court and her complaint against Stanton alleged unconstitutional arrest, search, excessive force, and additional state law tort claims. Stanton asserted that the hot pursuit doctrine justified his warrantless entry onto Sims’ property, and the district court agreed. It granted Stanton’s motion for summary judgment and held that Stanton was entitled to qualified immunity from civil liability.

On appeal, the Ninth Circuit reversed, holding that Stanton’s warrantless entry onto Sims’ property was not justified by the hot pursuit exception to the warrant requirement because the fleeing suspect was only suspected of a misdemeanor. Furthermore, the Court held that because the law on hot pursuit of fleeing misdemeanor suspects was clearly established at the time, Stanton was not entitled to qualified immunity.

Fourth Amendment and A Home’s Curtilage

The Court of Appeal stated, initially, that “(t)he Fourth Amendment prohibits officers from entering an enclosed front yard—curtilage—without a warrant, to the same extent that it prohibits them from entering a home.”

The Court held that “it is well-established that ‘[t]he presumptive protection accorded people at home extends to outdoor areas traditionally known as ‘curtilage’—areas that, like the inside of a house, harbor the intimate activity associated with the sanctity of a person’s home and the privacies of life.” In 2001, in United States v. Johnson, 256 F.3d 895, the Ninth Circuit ruled that “(t)he Fourth Amendment protection against warrantless searches extends to the curtilage around one’s home.”

In citing to the U.S. Supreme Court decision in United States v. Dunn, 480 U.S. 294, (1987), the Ninth Circuit directed that “questions of curtilage should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included in an enclosure surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by.”

The Sims Court found that “Sims’s small, enclosed, residential yard is quintessential curtilage. ‘[A] small, enclosed yard adjacent to a home in a residential neighborhood is unquestionably such a ‘clearly marked’ area ‘to which the activity of home life extends,’ and so is ‘curtilage’ subject to the Fourth Amendment protection.’”

Exceptions to the Warrant Requirement

“When the warrantless search is to home or curtilage, we recognize two exceptions to the warrant requirement: exigency and emergency. [Citation.] These exceptions are narrow and their boundaries are rigorously guarded to prevent any expansion that would unduly interfere with the sanctity of the home.”

“The exigency exception assists officers in the performance of their law enforcement function. It permits police to commit a warrantless entry where “necessary to prevent the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.”

“The emergency exception, in contrast, seeks to ensure that officers can carry out their duties safely while at the same time ensuring the safety of members of the public. It applies when officers “have an objectively reasonable basis for concluding that there is an immediate need to protect others or themselves from serious harm.”

In United States v. Johnson, the Court stated that “(i)t is a `basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” In citing to a U.S. Supreme Court ruling, Wisconsin v. Welsh, 466 U.S. 740 (1984), it stated that “(t)he presumption of unreasonableness can be overcome, however, when the police confront an exigent circumstance like a fleeing felon.”

“Hot Pursuit” Exception

“Stanton asserts that he pursued Patrick into Sims’s curtilage because he feared for his own safety. To establish that the circumstances gave rise to an emergency situation, Stanton must show an ‘objectively reasonable basis for fearing that violence was imminent.’”

“Once Patrick fled into Sims’s front yard, without signaling in any way that he would engage Stanton, return with a weapon, or otherwise threaten him with violence, there was simply no evidence of imminent danger to the officer or anyone else.”

“We have said, “[i]n situations where an officer is truly in hot pursuit and the underlying offense is a felony, the Fourth Amendment usually yields,” but “in situations where the underlying offense is only a misdemeanor, law enforcement must yield to the Fourth Amendment in all but the ‘rarest’ cases.” Stanton offers nothing to show why in this case the Fourth Amendment should yield.”

Furthermore, the Johnson Court held, “(t)he hot pursuit exception to the warrant requirement only applies when officers are in “immediate” and “continuous” pursuit of a suspect from the scene of the crime.” (Emphasis added.) The Court noted that Stanton was pursuing a suspect whose only crime was failure to obey Stanton’s lawful order to stop, a mere misdemeanor under California law.

While the Ninth Circuit in Sims failed to provide law enforcement agencies guidance on when hot pursuit of a fleeing misdemeanant would constitute a “rare” occasion where the doctrine would justify a warrantless entry into a home or its curtilage, the California Court of Appeal has provided some guidance in In re Lavoyne M., 221 Cal.App.3d 154 (1990).

In Lavoyne, police observed a juvenile driver fail to stop at a stop sign. The juvenile ignored the officer’s attempts to initiate a traffic stop, and instead proceeded to a residence where he exited the vehicle and ran inside. While running from the vehicle to the residence, police recognized the juvenile as being too young to have a valid driver’s license and ordered him to stop. When the juvenile failed to stop as ordered, police followed him inside and arrested him.

When police pursued the juvenile into the residence, he was only suspected of violating misdemeanor traffic laws: driving without a license and failure to stop at a stop sign. However, in finding that the hot pursuit exception applied, the Court of Appeal noted that the reasons for prohibiting misdemeanor driving without a license and failure to stop are similar to prohibiting felony drunk driving.

Accordingly, the court held that where the punishment and reasons for prohibiting the misdemeanor are similar to related felonies, hot pursuit of a misdemeanor suspect may justify a warrantless entry into a home under the exigency exception to the warrant requirement. The analysis boils down to how serious is the misdemeanor?


Under the Fourth Amendment, courts have consistently given the home, and its curtilage, the highest amount of privacy protection. In light of the many cases where a person’s privacy interest in the home has trumped the state’s interest in law enforcement, the Sims decision seems in line with established judicial interpretation of the Fourth Amendment.

Courts typically uphold the warrantless entry into homes only to serve significant government interests in law enforcement. As such, police officers should be trained on the intricacies that govern when they can enter a residence or its curtilage, without a warrant, particularly when in hot pursuit of a fleeing suspect. Before police can enter a home in pursuit of a fleeing suspect, they need to be able to articulate the crime the fleeing suspect is suspected of committing.

If the crime is a felony, the hot pursuit exception will generally justify the warrantless entry. If the crime is a misdemeanor, such as the failure to obey a lawful police order, the officer cannot enter the home, without a warrant, unless the officer also has probable cause that the suspect has committed another misdemeanor that is similar to a related felony.

Consulting with, and securing advice and guidance from your agency’s attorney, is obviously necessary whenever interpretation of the law is involved. As always, should you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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