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Media > Newsletters > Law Enforcement Bulletin > April 2014 > Warrants (the Hot Pursuit Exception): State of Ohio v. Cross

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Warrants (the Hot Pursuit Exception): State of Ohio v. Cross

Question: What is the “hot pursuit” exception, and when does it apply?  
Quick Answer: “Hot pursuit” lets you pursue a fleeing suspect into a home, without a warrant, if you have identified yourself as a law enforcement officer and are in actual pursuit of a suspect.

State v. Cross, Fourth Appellate District, Washington County, March 11, 2014
Facts: A deputy observed a car go left of center and turn without signaling. He followed the vehicle until it stopped in a driveway, never turning on his lights or sirens. Bryan Cross, the driver, exited the car and walked toward his garage. As soon he exited his patrol car, the deputy noticed the odor of alcohol on Cross. About 20 feet from the garage, the deputy ordered Cross to stop. Instead of stopping, Cross walked faster into his garage. Cross claimed he never heard the deputy. The deputy entered Cross’ garage, stopped him, and administered a field sobriety test. He arrested Cross for OVI. The state argued the stop was proper because he was in “hot pursuit” of Cross and did not need a warrant to enter his property.
Importance: - Instead of ruling on whether the hot pursuit exception applied, the appellate court  kicked the case back to the trial court because that court mistakenly thought the deputy had turned on his lights and sirens. But, the court seemed to express some skepticism about the claim of hot pursuit made by the State, considering the deputy said he wasn’t “in pursuit” of the suspect and it was more a “lukewarm amble” up the driveway.
The question of whether the pursuit was “hot”— or even a pursuit to begin with — will now go back to the trial court along with the questions of whether the deputy identified himself and whether the suspect was even fleeing. One way to avoid the same kind of torturous litigation is to always keep in mind the three elements of the exception: 1) There must be pursuit. 2) You must have identified yourself as a law enforcement officer. 3) The suspect must be fleeing from you. If all three of those aren’t present, you can’t barge into someone’s house without a warrant.
Keep in Mind: Entry of a home without a warrant is always presumed unreasonable, and law enforcement has a heavy burden to prove an exception for a warrantless entry. This is especially true when the underlying offense that occurred in public is relatively minor — such as a minor traffic violation. If you are going to use an exception, make sure you do all of the things necessary to make the exception apply.
One More Note: The exception of hot pursuit is very specific to the facts of each circumstance. In Ohio, we have a broader definition of hot pursuit than other states. For example, we extend hot pursuit to misdemeanor offenses. Here are some examples, from the past, of when courts found the exception to apply:
  • Police officers’ continuous chase of a suspect fell within the hot pursuit exception when the suspect was chased from the scene of the crime. Police attempted to tackle the suspect and chased him over fences and through a courtyard for a period of four minutes. The suspect was never out of the officers’ sight until he slammed the apartment door in their faces. Cleveland v. Shields, Eighth Appellate District, Cuyahoga County, July 3, 1995
  • Officers observed the suspect driving in a sporadic manner, and when they approached him in his driveway, he ran to the back of his house and entered his kitchen. It was undisputed that officers had probable cause to arrest the suspect for driving under the influence when they entered his home. Because the police officers, having identified themselves, were in hot pursuit of a suspect who fled to a house to avoid arrest, they were able to enter without a warrant even though the offense was a misdemeanor. Middletown v. Flinchum, Supreme Court of Ohio, April 10, 2002
  • Officers were driving home in an unmarked city SUV about 5 p.m. after a shift. While in single-lane traffic, a motorcycle rider passed the officers on the right side and drove through a red light. The officers recognized the man and knew where he lived. Once they arrived at his home, they found the suspect straddling the motorcycle, walking it into his detached garage. When he was approximately 15 to 20 feet from his open garage, the officers ordered him to stop several times and called him by name. They followed him into his garage, where they discovered the suspect was slurring his words and smelled of alcohol. The court found the officer was permitted to issue the traffic citations as he was in hot pursuit of the suspect when he entered the garage. Since the attempt to arrest was set in motion while the suspect was outside in public view, the pursuit into his garage was lawful, regardless of whether the garage was considered curtilage. State of Ohio v. Lake, Seventh Appellate District, Columbiana County, June 8, 2009
More on Warrants
Warrantless arrest of a co-conspirator. While on surveillance, you see a package containing known drugs being delivered. Five minutes later, a guy we’ll call Driver 1 arrives, takes the package, and drives away. As you tail the car, it stops, allowing a second car to pull beside it. The two drivers have a conversation and both drive away, with Driver 2 in the lead. You follow them to a gated community, where Driver 2 uses a keycard to enter. Making it through the gate, you find the cars in the parking lot and approach the suspects. They take you to an apartment with marijuana, large amounts of money, and packing materials. You arrest both. Was the warrantless arrest of Driver 2 proper? The court in Mowler said yes. A warrantless arrest is valid if an officer has sufficient knowledge to support a reasonable belief that a suspect has committed an offense. At the time of arrest, officers knew Maurice Mowler (Driver 2) had watched the marijuana delivery and assisted with entry to the gated apartment complex. Any reasonable officer observing this coordinated activity would have a reasonable belief that Mowler was aware of and involved in the transportation of the package containing the marijuana. State of Ohio v. Mowler, Eighth Appellate District, Cuyahoga County, March 6, 2014
Mistakes in a Warrant Affidavit. You receive a tip from an anonymous caller saying a suspect has drugs in a storage facility. Based on the information, the K-9 is called in and alerts on a unit. You write up the information for the warrant, accidently stating the information came from a “reliable source.” The warrant is granted. Before you can get back, the suspect shows up at the storage unit. In response to questions from the officer waiting at the storage unit, the suspect admits he has drugs inside. When you arrive, the unit is searched and you find the drugs. Is your warrant good even though you mistakenly characterized the caller as being reliable? The court in Johnson said the mistake of calling the individual a reliable source did not make the warrant invalid. This is because there was other information to show probable cause that the drugs were in the unit. Specifically, probable cause came from the results of the K-9 sniff and the confession by suspect John Johnson. State v. Johnson, Tenth Appellate District, Franklin County, Feb. 25, 2014