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Ninth Circuit:
Hot-Pursuit Exception to Need for Warrant Applied Despite Losing Sight of Suspect
Man Seen Running Stop Sign Was Not in View for Nine Minutes
By a MetNews Staff Writer
Sheriff’s deputies who barged into a home by the back door, without a warrant, did not violate the Fourth Amendment rights of the owner of the abode, the Ninth U.S. Circuit Court of Appeals held yesterday, because the officers were in “hot pursuit” of a man who had been spotted running a stop sign, a felony under California law.
It did not matter, the court said, that the deputy who witnessed the crime, tried unsuccessfully to pull the motorist over, then pursued him by car, and then on foot, lost track of the suspect for about nine minutes.
The opinion, by Senior Circuit Judge Susan P. Graber, affirms a summary judgment granted by Magistrate Judge Sheri Pym of the Central District of California in favor of four San Bernardino County sheriff’s deputies who, on July 27, 2022, entered the home of plaintiff Michael Newman in search of a man who was seen by one of the defendants, Todd Underhill, committing a traffic offense. The violator—Newman’s roommate, Richard Delacruz—was located in the house and was successfully tried on a charge of evading a peace officer with wanton disregard for safety.
Johnson v. U.S.
Newman sued under 42 U.S.C. §1983. The plaintiff argued that under the Ninth Circuit’s 2001 en banc decision in Johnson v. U.S., the hot pursuit exception to the warrant requirement is not available to the deputies.
In that opinion, then-Circuit Judge Alex Kozinski (now retired) said:
“The 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.”
Under that standard, interruption of the trailing of Delacruz, Newman asserted, destroys the defense.
Magistrate Judge’s Decision
Pym ruled:
“Underhill saw Delacruz run toward the backyard and…had probable cause to believe he ran into the house. The fact that he waited for backup and Sheriff deputies cleared the backyard before entering the house did not mean the hot pursuit ended. The trail was never cold.”
She added:
“It is true that Sheriff defendants did not know for certain Delacruz was inside plaintiff’s residence, but probable cause does not require certainty, only a fair probability.”
Graber’s Opinion
Newman argued on appeal that Johnson’s requirement that the pursuit be “immediate” means that a warrantless search must “follow immediately, in a temporal sense, from the underlying pursuit.” Graber wrote:
“But that interpretation would render the word ‘continuous’—which, on its own. denotes that a pursuit stops being ‘hot’ once it ends—meaningless. More to the point, 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.”
Addressing the requirement that the pursuit be continuous, she noted than in Johnson, the pursuer opted not to follow the suspect until he had backup and officers “had no clue where the suspect was for more than 30 minutes,” causing the court in that 2001 case to conclude that “the chase’s continuity had been ‘clearly broken.’ ” Graber declared:
“[W]e conclude that, when Underhill entered Plaintiffs home, the continuity of the chase remained intact….[T]he nine- minute ‘pause’ identified by Plaintiff is far shorter than the 30-minute period at issue in Johnson. The undisputed evidence supporting the existence of probable cause also demonstrates that, during those nine minutes. Underhill had a reasonably good idea where Delacruz was hiding.”
Chase Not Abandoned
The senior judge continued:
“Far from leaving 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 Sheriffs Department’s presence, and coordinated with fellow officers—including those keeping watch from a helicopter. Conversely. Plaintiff points to no evidence that would allow us to infer that Defendants ceased their pursuit of Delacruz after Underhill lost sight of him.”
Graber said that, “as a matter of law, Defendants had probable cause to believe that Delacruz was inside Plaintiff’s home,”
The case is Newman v. Underhill, 24-1493.
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