Prof. Steven Penney offers expertise to court on SCOTUS case

In an unusual turn of events, Professor Steven Penney of the University of Alberta Faculty of Law has provided his expertise in Canadian criminal law to assist a U.S. Supreme Court case.

Filed on January 15, Penney’s amicus brief provides insight into a 1993 Supreme Court of Canada case, R. v. Macooh, that deals with a similar legal issue and facts as the case presently before the U.S. Supreme Court, Lange v. California.

In U.S. proceedings, an amicus brief is written by an amicus curiae (Latin for “friend of the court”), a third party who provides their expertise or perspective on a particular issue for the benefit of the court.

Acting pro bono, Penney worked closely with a team of lawyers at the Washington, D.C., firm Gibson Dunn.

While it is common for American academics to offer their legal expertise to the court, it is exceptionally rare for Canadian professors to be invited to play a role in proceedings before the Supreme Court of the United States, said Penney.

The Case

The U.S. Supreme Court case Lange v. California deals with the question of whether a police officer, who is in hot pursuit of a suspect, can enter a home without a warrant to effect an arrest when there is probable cause that the suspect has committed a misdemeanor.

It is currently unclear whether the “hot pursuit” rule, which provides the exigent circumstances for the warrantless entry of a private residence to arrest a suspect, applies only to felonies in the U.S. or also to misdemeanors, as the California court ruled.

Penney was invited to submit an amicus brief by Amanda Rice, an American lawyer who was appointed by the U.S. Supreme Court as an amicus curiae to argue for upholding the Court of Appeal of California’s judgment.

When Rice encountered the Supreme Court of Canada case R v Macooh, she approached Penney to ask for his expertise on how the Supreme Court of Canada interpreted the common law in its decision.

Relying on Halsbury’s Laws of England and other early common sources, the court in R v Macooh unanimously found that warrantless entry into a residence to arrest a suspect after a hot pursuit is permissible, regardless of the severity of the offence.

“American courts generally do not pay much attention to foreign decisions,” said Penney. However, “many SCOTUS justices are very interested in the common law, especially the common law existing in the late 18th Century when the Fourth Amendment and other provisions of the Bill of Rights were added to the U.S. Constitution.”

“Because the Canadian Supreme Court looked at and interpreted the common law in Macooh, some members of the U.S. Court might find that influential.”

Since the U.S. and Canada share an English common-law history, R v Macooh provides the U.S. Supreme Court with both an example of how the common law can be interpreted and how applying the hot pursuit doctrine to misdemeanours would not create an undue risk of police abuse, said Penney.

“There has been very little controversy about Macooh,” said Penney. “It has never created a problem in Canada. It was a unanimous decision of the court; it hasn’t received any negative academic commentary.”

“In the US, in the current climate with policing, some argue that police should exercise a case-by-case approach in determining whether the circumstances justify arresting someone in a private home for a relatively less serious offense,” said Penney. “That is the argument of the other side; but in my view such a rule is not necessary and would be extremely difficult to apply in the field.”