MA: Hot pursuit into garage permissible for a jailable misdemeanor

Defendant was fleeing from the police after an attempted traffic stop, and he drove into his garage. The officers could enter his garage in hot pursuit from a jailable misdemeanor. The court declines to adopt a different standard under the state constitution. Commonwealth v. Jewett, 2015 Mass. LEXIS 321 (June 11, 2015):

b. Exigent circumstances. As noted above, hot pursuit of a fleeing suspect is a well-recognized exception to the warrant requirement. See Santana, 427 U.S. at 41-43 (warrantless entry permissible under doctrine of hot pursuit where defendant fled inside home to avoid arrest for heroin possession with intent to distribute); Kentucky v. King, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865 (2011). This exception effectuates 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 [*15] to a private place.” Santana, 427 U.S. at 43. Hot pursuit does not require a high speed race or a trail of police cruisers in fast pursuit of a suspect. See id. (“it need not be an extended hue and cry in and about [the] public streets” [quotations omitted]). Rather, it merely means “some sort of a chase.” Id.

Although it is well settled that a State may develop its own law of search and seizure so long as it does not run afoul of the prohibitions of the Fourth Amendment, see Commonwealth v. Matthews, 355 Mass. 378, 380-381, 244 N.E.2d 908 (1969), “[F]ederal and [S]tate courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect.” Stanton v. Sims, 134 S. Ct. 3, 5, 187 L. Ed. 2d 341 (2013). The defendant argues that the hot pursuit exception does not apply to “minor crimes,” and because the crimes he was suspected of committing at the time of the warrantless entry were not felonies, he contends that Holcroft’s entry into his garage was not permissible. We find this argument unpersuasive.

The hot pursuit exception has never explicitly been limited to felonies under either the Fourth Amendment or art. 14. See Stanton, 134 S. Ct. at 6 (“though Santana [427 U.S.] involved a felony suspect,” Supreme Court “did not expressly limit [the] holding based on that fact”). The defendant grounds much of his argument in the subsequent United States Supreme Court case of Welsh v. Wisconsin, 466 U.S. 740, 746 n.6, 754, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984) (defendant arrested for OUI but no incarceration possible for first OUI offense under Wisconsin law ), which explained that an “extremely minor” offense cannot give rise to a constitutional exigency for a warrantless entry. Welsh is readily distinguishable from the instant case for at least two reasons. First, the Supreme Court explicitly noted that the doctrine of hot pursuit did not apply as “there was no immediate or continuous pursuit of the petitioner from the scene of a crime.” Id. at 753. See Commonwealth v. DiGeronimo, 38 Mass. App. Ct. 714, 652 N.E.2d 148 (1995) (hot pursuit not implicated). Second, although undoubtedly “more than a minor crime must be involved to justify the warrantless intrusion into a private residence,” Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 842-843, 859 N.E.2d 433 (2006), Welsh did not conclude that all misdemeanors are minor offenses, but rather only that nonjailable offenses are considered such. See Welsh, 466 U.S. at 754.

Therefore, Welsh is not inconsistent with Santana. Taken together, these cases stand for the proposition that police may not make a hot pursuit warrantless entry into a residence of a person who is suspected of committing only a minor offense. Felonies, such as the one committed in Santana, 427 U.S. at 41-43, are not minor offenses, but nonjailable misdemeanors, such as the one at issue in Welsh, are properly considered to be minor. See Welsh, 466 U.S. at 754. See also Kirschner, 67 Mass. App. Ct. at 842-843 (hot pursuit not implicated and warrantless entry impermissible where crime was possession of fireworks punishable only by fine); Commonwealth v. Kiser, 48 Mass. App. Ct. 647, 649-651, 724 N.E.2d 348 (2000) (same, for nonjailable “extremely minor” offense of playing loud music).