Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat on the difference between hot pursuit and fresh pursuit, and whether either one gets you through the door of a house that does not belong to the suspect. The question comes from an officer in Colorado who read about fresh pursuit in the Search and Seizure Survival Guide and wanted to know if the rule only applies to the suspect’s own home.

Can you engage in fresh pursuit into another person’s home?

This question comes from an officer in Colorado. He says, all right, in your book, the Search and Seizure Survival Guide, you mentioned fresh pursuit being allowed into a home for a serious violent felony. What I’ve never been clear on, though, is does it have to be the suspect’s home, or can it apply to any home?

So let me give you some background here.

What is the difference between hot pursuit and fresh pursuit?

First of all, what is the officer talking about? In my book, the Search and Seizure Survival Guide, I talk about hot pursuit and fresh pursuit. I want to let you know that I separate these two doctrines out into distinct doctrines.

Number one is hot pursuit. Hot pursuit is really when you’re chasing somebody. I like to say hot pursuit is when you’re hot on the person’s tail. You can see them, and where they go, you can go.

Can you enter a home in hot pursuit of a misdemeanor suspect?

With one caveat, though. Generally speaking, you cannot enter a home with a misdemeanor offense alone. The fact that they’re running and have committed a misdemeanor, those two factors alone do not allow you to enter the home. The reason why is the U.S. Supreme Court said so in a case called Lange v. California. The Supreme Court says, hey, look, you need some form of exigency. Some emergency, some urgency. Why do we have to get this guy right now? Why can’t he retreat into his home without you getting a warrant?

So things like, you know, to protect somebody else in the home. Maybe he’s a domestic violence suspect, misdemeanor. Maybe there’s weapons involved. Maybe he’ll destroy evidence. Maybe he’ll escape. It’s probably not a super high threshold, but it’s something more than nothing.

Does any felony justify a hot pursuit entry into a home?

I also got to tell you, the Supreme Court didn’t address directly felony evasion, hot pursuit. The closest case we have on it is a case called Santana, where a lady suspected of dealing narcotics retreated into her home, and the police chased her. A lot of people believe that that case stands for the proposition that any felony will allow you to enter a home. I would be very careful with that.

I think that if the Supreme Court was called upon to answer, hey, does a non-violent, non-exigent circumstance felony hot pursuit into the home allow entry, I think the answer is no. I mean, imagine that you have a person who’s committed a check fraud. They wrote a check that is insufficient funds, and in that state it’s a felony. The police see the person walking on the street, and in order to take that person into custody, whatever, the person beelines it into their home. Can the police enter? I think the answer is no. I think the felony alone is not enough.

What is fresh pursuit and when does it allow a warrantless entry?

Now, that’s hot pursuit. Fresh pursuit is when you’re tracking somebody down after they have committed a violent felony. So imagine bank robbery, murder, sexual assault, and so forth. You get on scene and you start finding clues about who the person is, and you track that person down to their home. Can you enter?

Yes, if you have probable cause of a violent, serious violent crime. These are very serious crimes, like the top of the food chain type stuff. Do you have reason to believe that they are currently in their home? Did somebody see them go into their home? Because again, this is not hot pursuit, so usually it’s circumstantial evidence that they’re inside their home. The car is in the driveway, the lights are on, and so forth. And do you have some exigency? Destruction of evidence, danger to community, danger to police, escape, and so forth. If the answer is yes, then you get to go in there and take that person into custody without a warrant.

How long after the crime does fresh pursuit last?

How long do you have? In my book I say, look, more than two or three hours is really pushing it. This is not like two days later type stuff. This is like, man, we have a crime that just got committed, let’s track this guy down to his house and we want to get him into custody. There’s ongoing exigency, is the point.

Does fresh pursuit apply to a third party’s home?

The officer asks, does this fresh pursuit rule apply to third-party homes? The answer is yes, because, remember, you have some form of exigency to get that person into custody anyway. So whether or not they’re at their home or they’re at their friend’s house, the exigency is still there.

Now, you have to articulate what the exigency is. Just because they committed a felony, it’s not enough. You know that, right? That’s Payton, where the Supreme Court said that committing a serious crime, in that case it was murder, but no exigency, does not allow the entry into the home.

I tried to find some cases on this, and I actually have not found really any cases directly on point. I think it kind of makes sense, because if you think about it, if the suspect goes into a third party’s home, does the suspect have standing to contest that entry? The answer is probably no. Who has to do the complaining? The occupant, the homeowner. But why would they want to sue their local policeman? Why would they have a beef? They usually wouldn’t, because they wouldn’t be implicated in the crime.

Now, if they are implicated in the crime, let’s say they’re an accessory after the fact or something, or a co-conspirator, and we found evidence against them while we’re in the house, then they would try to complain about your entry. And it’ll go back to the fresh pursuit rules that I described. Does that make sense?

Why keep hot pursuit and fresh pursuit separate?

One last thing, if you don’t mind. Hot pursuit and fresh pursuit, you’ll see in case law and also statutes that they use those terms interchangeably. Fine, I get it. Some people say hot pursuit when they mean fresh pursuit, what I teach. But I still think that there’s value in understanding each doctrine separately and using separate terms. Hot pursuit, on their tail. Fresh pursuit, on their trail.

The short version

  • Hot pursuit is when you’re hot on the person’s tail. You can see them, and where they go, you can go.
  • Generally speaking, you cannot enter a home with a misdemeanor offense alone. That is Lange v. California. You need some form of exigency, something more than nothing.
  • A lot of people believe Santana stands for the proposition that any felony will allow you to enter a home. I would be very careful with that.
  • Fresh pursuit is tracking somebody down after a violent felony. You need probable cause of a serious violent crime, reason to believe they are currently inside, and some exigency. More than two or three hours is really pushing it.
  • Does the fresh pursuit rule apply to third-party homes? The answer is yes, because the exigency to get that person into custody is still there. But you have to articulate what the exigency is. Just because they committed a felony, it’s not enough. That’s Payton.

Until next time, my friends, stay safe.

Related from Blue to Gold

This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: Ep #446