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Hot pursuit does not automatically apply to all petty offenses – Warrants are not always needed for exigent circumstances

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The Fourth Amendment sounds so wonderful, as if it had been drafted by the American Civil LIberties Union : “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Of course, over the generations, the United States Supreme Court and other courts repeatedly have been much less charitable to the Fourth Amendment and the rest of the Bill of Rights than has the ACLU, with the exception of the Second Amendment, which the ACLU apparently generally stays away from.

Hot pursuit — renamed as slightly tepid by one of my very able bar review instructors — is a general exception to the requirement for police to obtain a search warrant before searching a home. Criminal defense lawyers must keep in mind that “federal and state 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, ___ U.S. ___ (Nov. 4, 2013). As to the states where I practice criminal defense, the state of the appellate law would seem to permit hot pursuit at least for more serious misdemeanors. Cherry v. Virginia, 44 Va.App. 347, 605 S.E.2d 297 (2004); Gorman v. Maryland, 168 Md.App. 412, 897 A.2d 242 (2006).

Even when police lack hot pursuit, they can try to resort to warrantless searches through such allegedly exigent circumstances as the odor of smoked marijuana coupled with shuffling inside a home as a response to loud police knocking at the door, which makes insufficient logic when the shuffling may be nothing more than shuffling around our of surprise that the police are present rather than any effort to hide or destroy contraband. Kentucky v. King, 131 S.Ct. 1849 (2011).

The United States is now well over two centuries after the Fourth Amendment was penned and drafted. Those who approved the Fourth Amendment’s passage remembered the British Government’s tyranny that led to the Fourth Amendment’s passage. It seems that too many judges would never have passed the Fourth Amendment if given a chance, and that they take comfort in the foregoing exceptions to the search warrant requirement.