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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: Should a police officer be able to follow you into

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Speaker 1: your home without a warrant if he suspects you of

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Speaker 1: a minor crime like playing the music in your car

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Speaker 1: too loudly? That was basically the situation in a case

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Speaker 1: before the Supreme Court this week. Several of the justices

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Speaker 1: were skeptical of drawing a line between felonies where warrantless

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Speaker 1: hot pursuit is allowed, and misdemeanors, as in this case.

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Speaker 1: Here are Justice Is Sonya Soto Mayor and Neil gorss

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Speaker 1: part of the problem is that what our felonies are

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Speaker 1: no longer absolutely necessarily and in all situations dangerous crimes

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Speaker 1: you can have why color crimes where there is no danger.

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Speaker 1: We live in a world in which everything has been criminalized,

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Speaker 1: and some professors have even opined that there's not an

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Speaker 1: American alive who hasn't committed a felony and so is

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Speaker 1: under some state law. And Justice Is Samuel Alito and

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Speaker 1: Clarence Thomas doubted that this was even a case of

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Speaker 1: hot pursuit. That hot pursuit has to be hot, and

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Speaker 1: it has to be a pursuit. It has to it.

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Speaker 1: It has to involve a chase. The person the arrest.

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Speaker 1: He must actually be trying to flee and avoid arrest.

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Speaker 1: Wouldn't your argument be a bit easier? For example, in

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Speaker 1: this case, there was actually a hot pursuit rather than

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Speaker 1: this kind of meandering pursuit that we had here. Joining

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Speaker 1: me as former federal prosecutor Michael Zelden, he's the host

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Speaker 1: of the podcast that Said with Michael Zelden, tell us

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Speaker 1: what happened to here, Michael so Arthur Lange is driving

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Speaker 1: his car in northern Virginia with his windows open, and

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Speaker 1: he seems to be singing aloud and on occasion honking

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Speaker 1: his horn. This through the attention of a local police

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Speaker 1: officer who followed Lang. Lang was unaware that he was

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Speaker 1: being followed. Lang drove his car into the driveway of

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Speaker 1: his house and into the garage, still unaware that the

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Speaker 1: policeman was there behind him, with his light flashing. As

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Speaker 1: the garage door is closing, the police officer sticks his

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Speaker 1: foot under the door to prevented some clothes. The police

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Speaker 1: officer walks in and arrests Lang. He takes a blood

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Speaker 1: alcohol test and it was determined that it was three

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Speaker 1: times the legal limit. In this case, it was a

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Speaker 1: hot pursuit of a misdemeanor, and the argument that Land

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Speaker 1: made was that hot pursuit should be limited to felonies

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Speaker 1: and should not be allowed for misdemeanors. Explain why hot

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Speaker 1: pursuit is allowed when police are chasing a suspected felon.

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Speaker 1: So the Fourth Amendment says no one should be subjected

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Speaker 1: to unreasonable churches and seizures without a warrant. But over

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Speaker 1: the years, different exceptions to that warrant requirements have arisen.

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Speaker 1: If you consent to the search, for example, if it's

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Speaker 1: an automobile search. All these things are exceptions in this

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Speaker 1: requirement that you get a warrant. The most relevant section

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Speaker 1: here is this hot pursuit exigent circumstances exception, And under

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Speaker 1: that exception, when the police are pursuing a subject and

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Speaker 1: the subject runs into his home, the police are allowed

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Speaker 1: to continue into the home without a warrant in order

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Speaker 1: to ensure the public safety, preserve the evidence, capture the individuals.

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Speaker 1: So the hot pursuit is sort of what you see

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Speaker 1: in the movie is when the police are chasing after

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Speaker 1: somebody and they're feeding along the highway and the individual

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Speaker 1: who's being chased jumps out of his car and runs

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Speaker 1: into his house. What the fourth amenda exception says the

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Speaker 1: police should be allowed to go in right after him.

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Speaker 1: That you don't have to stop. Call accords an emergency

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Speaker 1: that allows it to do. Several of of justices seemed

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Speaker 1: to have a problem with the difficulty of drawing lines

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Speaker 1: between misdemeanors and felonies and making a categorical rule. Chief

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Speaker 1: Justice Roberts gave the example of a group of teenagers

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Speaker 1: drinking beer in an empty lot who run off when

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Speaker 1: officers arrive, and he asked whether police really need the

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Speaker 1: right of hot pursuit to follow them into their parents homes. Well, so,

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Speaker 1: there are a whole host of practical problem distinction between

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Speaker 1: a felony and a misdemeanor create for police. You try to,

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Speaker 1: in these types of cases make rules, create bright lines

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Speaker 1: that police can follow in the ordinary course. So one

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Speaker 1: of the justices said, for example, you know, driving under

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Speaker 1: the influence for the first time is a misdemeanor. For

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Speaker 1: the second or third time, it could be a felony.

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Speaker 1: How could a police officer possibly know whether this is

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Speaker 1: a felony driving under the influence, or a misdemeanor driving

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Speaker 1: under the influence. In some states, misdemeanors are to find

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Speaker 1: differently than felonies. Massachusetts, I think, Brier said, mistimeator can

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Speaker 1: carry a jail term up to two and a half

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Speaker 1: years and include some serious conduct. In other states it's

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Speaker 1: only six months and it doesn't involve any conduct that

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Speaker 1: can be serious. So they had a very difficult time

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Speaker 1: trying to figure out how do you make a practical

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Speaker 1: rule when you're distinguishing between a felony and a misdemeanor

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Speaker 1: and your policeman on the street. And that's really what

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Speaker 1: you always want to do in Fourth Amendment law is

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Speaker 1: create a practical rule so everyone knows what the rules

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Speaker 1: of the game are. And they haven't figured out, in

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Speaker 1: this case, from the oral argument, how exactly they're going

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Speaker 1: to do that, and that has led some other justices

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Speaker 1: to say, maybe that's the wrong rule to create. Maybe

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Speaker 1: we need to figure out whether or not we are

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Speaker 1: dealing with really hot pursuits, or, as Justice Thomas said,

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Speaker 1: this was sort of a meandering pursuit, and meandering pursuits

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Speaker 1: wouldn't justify the warrant exception. Only truly pursue. A lawyer

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Speaker 1: for the defendant called the home the Fourth Amendment's most

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Speaker 1: sacro sanc space. And in the past the court has

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Speaker 1: when it comes to the Fourth Amendment, has said that

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Speaker 1: the home is first among equals and even said that

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Speaker 1: the curtilage is part of the home. Exactly, so how

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Speaker 1: does that slay in here? Well, going back forever, essentially,

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Speaker 1: the home is the castle, and the castle has the

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Speaker 1: right to not be violated except in the most extreme circumstances.

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Speaker 1: There's myriad cases that spree Court has affirmed that decision,

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Speaker 1: and therefore entry into a home without a warrant is

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Speaker 1: really done only under the most unusual, most extreme circumstances.

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Speaker 1: Because of this preference at the home be without unreasonable entry.

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Speaker 1: And in fact, it was just this Gorst who said

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Speaker 1: that at the inception of the Fourth of him and

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Speaker 1: remember he's an originalist. He likes to interpret the law

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Speaker 1: today as it was intended to be interpreted, or as

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Speaker 1: it was being interpreted at the time it was enacted.

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Speaker 1: And he said, at its inception, the Fourth Amendment always

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Speaker 1: required entry into a home with a warrant when the

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Speaker 1: suspect was suspected of committing a misdemeanor, and he said, so,

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Speaker 1: if you change this rule to allow entry in hot

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Speaker 1: pursuit of a misdemeanor, you're really changing what the founders

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Speaker 1: intended by this document. He felt uncomfortable pursuing it because

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Speaker 1: of his originalist thinking. So, yes, there's a strong preference

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Speaker 1: that homes be protected and that it be entered only

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Speaker 1: in the most exceptional circumstances without a warrant. And that

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Speaker 1: was paced law and the mindset of the framers at

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Speaker 1: the time the Fourth and Endment was adopted. Fourth Amendment

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Speaker 1: questions have divided the Court in the past in unusual ways,

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Speaker 1: and you mentioned originalism. Justice Scalia often sided with the

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Speaker 1: liberals when there are questions of privacy. The court here

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Speaker 1: seemed very confused. Did you see any indication of which

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Speaker 1: way it might go. Well, that's a great question, and

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Speaker 1: it's interesting when you read the questions and sort of

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Speaker 1: the struggles that the justices had. This is a case

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Speaker 1: that is not going to be easily decided along traditional

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Speaker 1: conservative liberal rules because of what you said, there are

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Speaker 1: privacy overrides that sort of originalist value. There's what we

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Speaker 1: said about corsets at its inceptions misdemeanors did not justify

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Speaker 1: it a warrantless entry into the home. And then you

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Speaker 1: have the questions by Soda, Mayor and Kagan, the liberals

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Speaker 1: sort of not being able to determine what is a

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Speaker 1: good case versus a bad case. They said, for example,

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Speaker 1: many cases that are white collar cases or felony cases,

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Speaker 1: but many cases that involve spousal abuse are misdemeanor cases.

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Speaker 1: And you can't make a rule that you know, sort

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Speaker 1: of protects the white collar criminal and leads the to

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Speaker 1: be abused spouse unprotected. So I think that really struggling

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Speaker 1: to figure this all out. There's an easy out for them,

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Speaker 1: perhaps to say this case wasn't the hot pursuit, that

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Speaker 1: there was no justification for the entry, and therefore we are,

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Speaker 1: you know, sort of essentially hunting. We're saying that on

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Speaker 1: the fact of this case there was no exigent circumstances,

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Speaker 1: We're going to lead to another day whether exigent circucess

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Speaker 1: can be applied in the case of the misdemeanor. But

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Speaker 1: in this case, because the pursuit was, in Thomas's words, meandering,

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Speaker 1: we're not going to apply the exception of hot pursuits

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Speaker 1: to the fourth Amendment requirement to get a warrant and

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Speaker 1: you know, come back another day with a different SA

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Speaker 1: will decide whether or not there should be this misdemeanor

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Speaker 1: felonique distinction. It's interesting that California didn't defend the lower

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Speaker 1: court's decision in its favor. Yeah, that's that's really unusual.

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Speaker 1: What so, what happened is Mr Lange appealed his conviction

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Speaker 1: and the California Court of Appeals, the Supreme Court of

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Speaker 1: California UM affirmed his conviction. But then the State of California,

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Speaker 1: the Office of the General Attorney General's Office UM, refused

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Speaker 1: to defend the case. They believed that it was wrongly decided,

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Speaker 1: and so they state Deputy Solicitor General who argued the case,

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Speaker 1: agreed with Lang that this case should be UM thrown

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Speaker 1: out because this they wouldn't defend its own courts reasoning,

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Speaker 1: the Supreme Court appointed a third party, they called it

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Speaker 1: an A Meek as a Friend of the Court UM

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Speaker 1: to argue on behalf of the State of California that

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Speaker 1: this decision should be upheld. And so a UM appointed

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Speaker 1: lawyer Amanda Rice, who I think was a law clerk

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Speaker 1: to Justice Kagan argued in favor of a rule that

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Speaker 1: would allow the police to enter without a warrant in

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Speaker 1: this case. And then the US Solicitor General's Office in

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Speaker 1: the United States Department of Justice, appearing as a friend

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Speaker 1: of the court, also argued in support of the rule

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Speaker 1: that allows them to enter the house. The Justice UH

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Speaker 1: configuration of their argument was interesting. It says that there

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Speaker 1: should be essentially a general presumption that the police can

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Speaker 1: follow somebody into their house who committed a misdemeanor UM

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Speaker 1: and then on a case by case basis, will determine

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Speaker 1: whether or not the police officer exercise his or her

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Speaker 1: judgment appropriately. So presumptively it's okay, but case by case

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Speaker 1: it can be thrown out if they exercise of the

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Speaker 1: judgments of the police officer who had entered the home

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Speaker 1: was deemed to be inadequate. So very interesting. Four different

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Speaker 1: lawyers arguing, and Lang himself was argued. Was defended by

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Speaker 1: Stanford University Supreme Court Legal Clinic UH Professor Fisher. Jerry Fisher,

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Speaker 1: who runs the clinic at Stanford, took the case. And

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Speaker 1: so there's Fisher and UH three of his students who

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Speaker 1: are preparing this case. So it's a great case for

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Speaker 1: the student practice rule that many students learned how to

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Speaker 1: be lawyers during law school. Thanks Michael. That's former federal

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Speaker 1: prosecutor Michael Zelden. Are you still a person if you're dead?

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Speaker 1: It's a question that may be answered in the case

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Speaker 1: of a fight to test the DNA of a man

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Speaker 1: executed in two thousand six. Joining me is Jordan Reuben

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Speaker 1: Bloomberg Law Editor. Why is former Solicitor General Paul Clement

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Speaker 1: trying to prove the innocence of a man who was

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Speaker 1: already executed. So Sedley Ali, as you mentioned, was already

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Speaker 1: executed in two thousand six, but before he was executed,

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Speaker 1: he wanted DNA testing to try and prove his innocence.

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Speaker 1: The law in the state at the time didn't allow that.

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Speaker 1: But since his death, the law has changed, and so

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Speaker 1: now his family, his estate still wants to try and

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Speaker 1: improve Sedley Ali's innocence. And now the question is whether

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Speaker 1: under the law, this novel question of whether they can

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Speaker 1: still pursue that claim despite Ali being dead. One factual question,

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Speaker 1: where is the DNA going to call from to be tested? Sure,

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Speaker 1: so there are multiple pieces of evidence that they want tested.

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Speaker 1: For example, uh pair of men's underwear that was found

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Speaker 1: near the victim's body, who was also raped, And so

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Speaker 1: this is evidence that the state still has all of

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Speaker 1: these years later, and so they want to test this

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Speaker 1: with an eye towards looking at a potential another perpetrator

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Speaker 1: of the crime, and so not necessarily only just to

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Speaker 1: prove that said ley Ali is innocent in their view,

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Speaker 1: but evidence that could potentially point to another perpetrator. So

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Speaker 1: what's the issue here? So in some ways the issue

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Speaker 1: comes down to the question of what it means to

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Speaker 1: be a person, a really novel question. So someone who

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Speaker 1: was alive today, said ley Ali, were alive today and

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Speaker 1: in the same situation charged with the murder he was

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Speaker 1: charged with. A person in that situation is entitled to

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Speaker 1: the n A testing, or at least can attempt to

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Speaker 1: seek it next with the laws that stands today. But

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Speaker 1: the issue, as the state argues it anyway, is that

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Speaker 1: since Ali was already executed, essentially no longer counts as

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Speaker 1: a person under the law who was entitled to DNA testing.

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Speaker 1: And one of the issues in this case that's being

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Speaker 1: argued now by Paul Clement is whether steadily Ali does

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Speaker 1: count as a person even though he's already been executed.

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Speaker 1: The judge below rule for the state. Is there any

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Speaker 1: indication how this panel is viewing it? It really wasn't

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Speaker 1: clear from the argument. There are multiple other issues in

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Speaker 1: the case as well, but when it came to this

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Speaker 1: particular question, really what was clear is that it was

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Speaker 1: a novel issue. And so of course the state, as

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Speaker 1: you mentioned, did rule against them, and that's the point

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Speaker 1: at which the estate wanted to bring in Paul Clement,

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Speaker 1: who has all this Supreme Court experience, to take it

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Speaker 1: up on appeal. And so this is at the intermediate

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Speaker 1: state court level. So even if they lose there, and

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Speaker 1: they could then take it to the ten to See

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Speaker 1: Supreme Court and then potentially even to the U. S.

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Speaker 1: Supreme Court eventually. But so no matter what happens at

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Speaker 1: this next point in the road, there to very well

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Speaker 1: be further appeals either way. So how is the legal

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Speaker 1: issue argued? Are they opening a dictionary to see what

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Speaker 1: it says next to the word person? So there really

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Speaker 1: are a bunch of different arguments that are going on here.

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Speaker 1: And during the argument, well, there was an interesting moment

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Speaker 1: that person would not apply to Sedley Alley, and then

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Speaker 1: Paul Clemant said he thought that it was unambiguous going

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Speaker 1: the other way, which suggested at the very least Clement

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Speaker 1: argued that there's some ambiguity in the issue, which is

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Speaker 1: not something that the state is even conceding. And so

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Speaker 1: really this is a novel question and it was not

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Speaker 1: immediately clear what the court is going to do with it.

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Speaker 1: But I would say it's safe to say that no

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Speaker 1: matter which way this Court of Appeals comes down, that

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Speaker 1: either parties going to appeal it then to the state

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Speaker 1: Supreme Court. These aren't the kind of issues that you

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Speaker 1: associate with Clement. How did he get involved in this? Yeah,

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Speaker 1: it's an interesting point. I think maybe some people who

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Speaker 1: are more general observers might associate him more specifically with

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Speaker 1: certain conservative Republican causes that have been argued at the

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Speaker 1: Supreme Court. He's actually been involved in multiple cases like

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Speaker 1: this going back some years, although some of them haven't

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Speaker 1: gotten as much publicity. And I spoke about that with him,

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Speaker 1: and he met referenced the case pretty shortly after he

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Speaker 1: came out of government that he worked on that involves

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Speaker 1: similar issues broadly speaking, in terms of kind of going

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Speaker 1: to the other side of the criminal justice system in

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Speaker 1: terms of helping with defendants and people who were convicted,

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Speaker 1: and so it might not be what he's immediately associated with,

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Speaker 1: but he has actually worked on some cases like this

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Speaker 1: in the past as well. So if the DNA testing

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Speaker 1: is granted and if the petitioner is found not to

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Speaker 1: have committed the crime, it would be a first. So

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Speaker 1: the Innocence Project, that's what they're saying. It could be

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Speaker 1: a first in terms of potentially definitively proving that an

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Speaker 1: innocent person was executed. People who follow the issue of

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Speaker 1: exonerations and wrongful convictions will say that there have been

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Speaker 1: many examples throughout the years of innocent people who have

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Speaker 1: been executed or at least evidence pointing that way. The

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Speaker 1: way the Innocence Project is looking at this case is

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Speaker 1: that it could be a first in terms of using

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Speaker 1: this DNA evidence to definitively prove that. Thanks Jordan's that's

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Speaker 1: Jordan Reuben, Bloomberg Law Editor, and that's it for the

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Speaker 1: edition of the Bloomberg Law Show. Remember you can always

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Speaker 1: get the latest legal news by subscribing to our Bloomberg

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Speaker 1: Law podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and wherever you get your favorite podcasts. I'm June Grosso

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Speaker 1: and you're listening to Bloomberg