Once in a while, police try to pull someone over for a traffic infraction, or misdemeanor, and the person, rather than stopping, drives home, parks, and goes into their dwelling, be it a dorm room, a house, a trailer, or an apartment. Today we are going to talk about when police can and cannot chase you into your home without a warrant.

A little over a month ago, the United States Supreme Court issued a surprising decision, and an important one, addressing this precise question.

In Lange v. California, 141 S.Ct. 2011 (June 24, 2021), Arthur Lange drove past the police, while listening to loud music and honking his horn. Id. 141 S.Ct. at 2017. The officer began to tail Lange and soon afterward turned on his overhead lights to signal that Lange should pull over. However, Lange rather than stopping continued into his driveway, a hundred feet away, and parked in his attached garage. Id. Police followed Lange into his garage and began a DUI investigation, arresting him for misdemeanor DUI and a noise infraction. Id.

The Supreme Court in a 9-0 opinion held first that “when a minor offense alone is involved, police officers do not usually face the kind of emergency that can justify a warrantless entry into the home.” Id at 2020 citing Welch 104 S.Ct. 2091. This is because historical precedents have recognized that the “law afforded the home strong protection from government intrusion.” Id at 2022-23 citing “Recovering the Original Fourth Amendment 98 Mich. L.Rev. 547, 6420646 (1999).

But the Court in Lange also recognized that “in the misdemeanor context, officers had more limited authority to intrude on a fleeing suspect’s home.” Id. at. 2023. They concluded that “when the officer has time to get a warrant, he must do so—even though the misdemeanant fled. Id. at 2024,

Maybe the most surprising thing about Lange is that it was a unanimous decision from and often divided court. Even the most conservative judges agreed, at least with the conclusion.

How does this affect us in Arizona? Well, the Arizona Supreme court has held that police may not make a warrantless entry into the home when the warrantless entrance is for police to only “provide emergency aid” or check for “erratic behavior.” State v. Wilson 237 Aris. 296 (2015).

In Wilson, “[p]olice officers and paramedics went to Wilson’s residence after neighbors complained about his erratic behavior” which allegedly included “up to seven pounds of mercury in this house.” Id. at 297. Police then entered into the home “to see if there was mercury.” Id. But once inside police smelled marijuana, and located marijuana plants.” Id.

In holding the warrantless entry into the house illegal, the Arizona Supreme Court held that for the entrance to be justifiably warrantless there must be such exigencies that a “substantial risk of harm to the persons involved or to the law enforcement process would arise if the policy were to delay a search until a warrant could be obtained.” Id.

Since Wilson, the Arizona Supreme Court has recognized in numerous decisions a constitutional right to privacy, under Article II, section 8 of the Arizona Constitution. See State v. Peoples, 240 Ariz. 244, 249 (2016).

In Peoples for example police seized a cellular phone without a warrant and conducted a warrantless search. Id. at 249. In holding such search illegal the court reasoned that in Arizona, not only does the Fourth Amendment prohibit warrantless searches, but there exists a separate constitutional right in Arizona to privacy, which required a warrant. Moreover the court in Peoples rejected the State’s argument that police acted with “good faith” that would excuse the violation. Id.

Similarly in State v. Fuentes the Arizona Court of Appeals, citing the Arizona constitution, held that warrantless “protective sweep” of a mobile home to ensure safety of officers was not justifiable. 247 Ariz. 515, 519 (App. Div. II 2019). Other search and seizure cases from Arizona echo Fuentes, Peoples, and Wilson

Thus, it seems that in light of Lange Arizona Trial Courts may be hard-pressed to find that a person who rather than stop for a traffic violation, or misdemeanor, safely and carefully drives home and goes into his home does not have a legitimate expectation of privacy in that home, that would obviate the need for police to seek a warrant before entering.