Amicus Curiae Brief — Edward A. Caniglia, Petitioner v. Robert F. Strom, et al.

No. 20-157

In The

Supreme Court of the United States

____________________

EDWARD A. CANIGLIA,

Petitioner,

v.

ROBERT F. STROM, et al.,

Respondents.

____________________

On Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

____________________

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

____________________

DANIEL WOISLAW

Counsel of Record

HANNAH SELLS MARCLEY

STEVEN M. SIMPSON

Pacific Legal Foundation

3100 Clarendon Blvd., Suite 610

Arlington, Virginia 22201

Telephone: (202) 888-6881

Email: dwoislaw@pacificlegal.org

Email: hmarcley@pacificlegal.org

Email: ssimpson@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

IDENTITY AND INTEREST OF

AMICUS CURIAE ...................................................... 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 4

I.

INTRODUCTION & BACKGROUND ............ 4

II.

THE COMMUNITY CARETAKING

EXCEPTION DOES NOT EXTEND TO

HOMES ............................................................ 6

A. This Court’s Precedents Exclude Homes from

the Community Caretaking Exception. ........ 6

B. The Exception Should Continue To Exclude

Homes ............................................................ 7

1.

Trespass on a home without a

warrant is unreasonable per se. ................ 8

2.

A noninvestigatory search of the home

does not relegate it to a lesser degree of

scrutiny .................................................... 13

C. Privacy Interests Are at Their Zenith

in the Home ................................................. 14

III. THE COMMUNITY CARETAKER

EXCEPTION IS UNWORKABLE IN THE

CONTEXT OF THE HOME BECAUSE IT

PLACES NO FIXED LIMITS ON THE

DISCRETION OF OFFICERS IN THE

FIELD. ............................................................ 19

ii

A. Obtaining a Warrant Must Be Impracticable

for a Warrantless Home Search To Be

Reasonable ................................................... 19

B. The Community Caretaker Exception Does

Not Place Sufficient Limits On Officer

Discretion To Guard Against Arbitrary

Intrusions on the Privacy of the Home. ...... 22

CONCLUSION.......................................................... 27

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Brigham City v. Stuart,

547 U.S. 398 (2006) ............................... 14, 19, 24

Brown v. Texas,

443 U.S. 47 (1979) ............................................. 22

Cady v. Dombrowski,

413 U.S. 433 (1973) ............................... 2, 4, 7, 11

Camara v. Municipal Court,

387 U.S. 523 (1967) ................................... passim

Caniglia v. Strom,

953 F.3d 112 (1st Cir. 2020) ...................... passim

Carpenter v. United States,

138 S. Ct. 2206 (2018) (Thomas, J.,

dissenting) ....................................................... 8, 9

Carroll v. United States,

267 U.S. 132 (1925) ............................... 11, 12, 16

Cedar Point Nursery v. Hassid, No. 20-107,

2020 WL 6686019 (Nov. 13, 2020) ...................... 1

Cedar Point Nursery v. Shiroma, 923 F.3d

524 (9th Cir. 2019)............................................... 1

City of Los Angeles v. Patel,

576 U.S. 409 (2015) ....................................... 4, 25

iv

Collins v. Virginia,

138 S. Ct. 1663 (2018) ................................... 9, 17

Entick v. Carrington, 2 Wils. K.B. 275, 95

Eng. Rep. 807 (K.B. 1765) ............................. 9, 10

Florida v. Jardines,

569 U.S. 1 (2013) ................................. 8, 9, 10, 14

Florida v. Wells,

495 U.S. 1 (1990) ......................................... 25, 26

Georgia v. Randolph,

547 U.S. 103 (2006) ..................................... 11, 16

Hansen v. Illinois Racing Bd.,

534 N.E.2d 658 (Ill. App. Ct. 1989) ................... 26

Illinois v. McArthur,

531 U.S. 326 (2001) ..................................... 10, 11

Katz v. United States,

389 U.S. 347 (1967) ................................... 4, 8, 11

Kentucky v. King,

563 U.S. 452 (2011) ............................... 10, 18, 24

Knick v. Twp. of Scott,

139 S. Ct. 2162 (2019) ......................................... 1

Koontz v. St. Johns River Water Mgmt.

Dist.,570 U.S. 595 (2013)..................................... 1

Kyllo v. United States,

533 U.S. 27 (2001) ................................. 13, 16, 17

v

Lingle v. Chevron,

544 U.S. 528 (2003) ............................................. 9

Michigan Dep’t of State Police v. Sitz,

496 U.S. 444 (1990) ....................................... 8, 25

Mincey v. Arizona,

437 U.S. 385 (1978) ........................................... 18

New Jersey v. T.L.O.,

469 U.S. 325 (1985) ........................................... 23

New York v. Burger,

482 U.S. 691 (1987) ....................................... 8, 20

Nollan v. California Coastal Comm’n,

483 U.S. 825 (1987) ............................................. 1

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) ............................................. 1

Payton v. New York,

445 U.S. 573 (1980) ................................... passim

Rodriguez v. City of San Jose,

930 F.3d 1123 (9th Cir. 2019) ........................... 21

Santikos v. State,

836 S.W.2d 631 (Tex. Crim. App. 1992)............ 26

Segura v. United States,

468 U.S. 796 (1984) ........................................... 20

Skinner v. Railway Labor Executives’ Ass’n,

489 U.S. 602 (1989) ........................................... 25

vi

South Dakota v. Opperman,

428 U.S. 364 (1976) ............................................. 7

State v. Marsh,

823 P.2d 823 (Kan. Ct. App. 1991).................... 26

State v. McClure,

74 S.W.3d 362 (Tenn. Crim. App. 2001) ........... 26

State v. VFW Post 3562,

525 N.E.2d 773 (Ohio 1998) .............................. 26

Stavrianoudakis, et al. v. United States Fish

& Wildlife Service, et al.¸ No. 1:18–cv–

01505 (E.D. Cal. filed Oct. 30, 2018)................... 1

Suitum v. Tahoe Regional Plan. Agency,

520 U.S. 725 (1997) ............................................. 1

Terry v. Ohio,

392 U.S. 1, 27 (1968) ......................................... 23

United States v. Jones,

565 U.S. 400 (2012) ............................. 8, 9, 10, 17

United States v. Karo,

468 U.S. 705 (1984) ..................................... 16, 18

United States v. Matlock,

415 U.S. 164 (1974) ........................................... 12

United States v. Robinson,

414 U.S. 218 (1973) ........................................... 12

United States v. Watson,

423 U.S. 411 (1976) ..................................... 12, 16

vii

Welsh v. Wisconsin,

466 U.S. 740 (1984) ........................................... 12

Other Authorities

Laura K. Donohue, The Original Fourth

Amendment, 83 U. Chi. L. Rev. 1181,

1222–23 (2016)................................................... 12

Nelson B. Lasson, The History and

Development of the Fourth Amendment

to the United States Constitution 61

(1970) ................................................................. 15

Thomas K. Clancy, The Framers’ Intent:

John Adams, His Era, and the Fourth

Amendment, 86 Ind. L.J. 979, 1019–20,

1027–29, 1050–51 (2011)............................. 11, 15

Thomas K. Clancy, The Fourth Amendment:

Its History and Interpretation 24–25, §

2.2 (2009) ........................................................... 12

Thomas K. Clancy, The Role of

Individualized Suspicion in Assessing

the Reasonableness of Searches and

Seizures, U. Mem. L. Rev. 483, 528

(1994–1995) ....................................................... 23

U.S. Const amend. IV ........................................... 2, 9

William J. Cuddihy, The Fourth

Amendment: Origins and Original

Meaning 602–1791 378 (2009) .......................... 15

1

IDENTITY AND

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Pacific Legal

Foundation submits this brief amicus curiae in

support of Petitioner Edward Caniglia.1

PLF is a nonprofit, public interest legal

foundation established more than 40 years ago to

advance the principles of individual rights and limited

government at all levels of state and federal courts.

PLF attorneys have been lead counsel in numerous

property rights cases before this Court and have

expertise litigating Fourth Amendment issues in the

lower courts. See, e.g., Knick v. Twp. of Scott, 139 S.

Ct. 2162 (2019); Koontz v. St. Johns River Water

Mgmt. Dist., 570 U.S. 595 (2013); Palazzolo v. Rhode

Island, 533 U.S. 606 (2001); Suitum v. Tahoe Regional

Plan. Agency, 520 U.S. 725 (1997); Nollan v.

California Coastal Comm’n, 483 U.S. 825 (1987);

Cedar Point Nursery v. Shiroma, 923 F.3d 524 (9th

Cir. 2019), certiorari granted sub nom. Cedar Point

Nursery v. Hassid, No. 20-107, 2020 WL 6686019

(Nov. 13, 2020); Stavrianoudakis, et al. v. United

States Fish & Wildlife Service, et al.¸ No. 1:18–cv–

01505 (E.D. Cal. filed Oct. 30, 2018). Amicus believes

that its perspective on property and privacy rights will

1 All parties have consented to the filing of this brief. Counsel of

record for all parties received notice at least 10 days prior to the

due date of Amicus Curiae’s intention to file this brief. No counsel

for any party authored this brief in whole or in part and no

person or entity made a monetary contribution specifically for

the preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

aid this Court in the consideration of the issues

presented by this case.

SUMMARY OF ARGUMENT

The home is the place where Americans have

historically enjoyed the strongest protection against

governmental intrusion. The Fourth Amendment

safeguards this sphere of freedom by requiring that

agents of the state obtain the permission of a neutral

and detached judge who provides them with a limited

authorization to search or seize property after being

convinced by sufficient evidence that the search or

seizure is justified. See U.S. Const amend. IV. In this

manner, the Fourth Amendment codifies separation of

powers and due process principles by insisting that a

judicial officer determine the reasonableness of law

enforcement officers’ search and seizure functions and

in requiring that those law enforcement officers

submit sufficient evidence under oath to justify the

searches and seizures they seek permission to

execute. See id.

Over the years, however, this Court has

recognized numerous exceptions to the requirement

that government agents acquire judicial permission

before executing searches and seizures. One such

exception is the so-called Community Caretaking

Exception (“CCE”), which permits law enforcement

officers to execute searches and seizures aimed at

guarding the community from perceived risks in

circumstances where the privacy interests of the

person’s property that is the object of the search are

low and the risk to the community from police inaction

is high. Originally created for vehicles, this Court in

Cady v. Dombrowski crafted this exception to uphold

the seizure of a gun from an arrestee’s car “to protect

3

the public from the possibility that [the] revolver

would fall into untrained or perhaps malicious hands.”

413 U.S. 433, 434–39, 446–47 (1973).

The lower court in the case at bar issued an

opinion below expanding the CCE to homes. However,

this Court foreclosed extending the CCE to the home

in the case which initially created it, distinguishing

the vehicle at issue from a home. Aside from violating

precedent, the lower court’s decision also ignores the

original meaning of the Fourth Amendment, which

secures a resident’s home against warrantless

searches except in cases of emergency or exigency.

Extending the CCE to homes is not only

unsupported by the original meaning of the

Constitution, which treats warrantless trespasses

against homes as unreasonable per se, but fails even a

more deferential legal analysis that weighs the

government’s interest against the resident’s liberty

interest. The privacy interests in the home are

paramount, while the amorphous state interest to

engage in nonemergency community caretaking is not

inherently damaged by requiring a warrant since a

warrant only delays government action, rather than

foreclosing it. Finally, the CCE does not include

sufficient restraints on officer discretion to guard

against arbitrary intrusions into the home. Limiting

officer discretion to prevent arbitrary intrusions

against persons, houses, papers, and effects is one of

the principal concerns of the Fourth Amendment, but

the CCE as defined by the lower court fails in this

crucial task.

The lower court could have resolved this on

constitutionally sound ground had it fully examined

whether a resident had consented to the search. The

4

Court should reverse and remand with direction to

determine whether the officers received consent for

the search, as that is the only constitutional basis on

which to uphold a search under the facts presented.

ARGUMENT

I.

INTRODUCTION & BACKGROUND

It is a basic principle of Fourth Amendment law

that warrantless searches are presumptively

unconstitutional, subject to rehabilitation only by the

government proving that the search fits within one of

the few, carefully limited exceptions to the warrant

requirement. City of Los Angeles v. Patel, 576 U.S.

409, 419 (2015). Exceptions to the warrant

requirement are “few[,] specifically established and

well-delineated[.]” Katz v. United States, 389 U.S. 347,

357 (1967); See also, Camara v. Municipal Court, 387

U.S. 523, 528–29 (1967). The lower court thwarted

this principle by unjustifiably expanding the

Community Caretaker Exception (“CCE”) discussed

by this Court in Cady v. Dombrowski, 413 U.S. 433,

439 (1973) (“Cady”), to include searches of homes.

Mr. Caniglia and his wife, Kim, had an argument

in which Mr. Caniglia put his gun on the table and

dramatically told his wife that she ought to “shoot me

now and get it over with” to end the argument.

Caniglia v. Strom, 953 F.3d 112, 119 (1st Cir. 2020).

Angry, she spent the night at a hotel but became

concerned after he did not call her the following

morning. Kim called the police and met them at the

house to perform a welfare check. Id. Mr. Caniglia

spoke to the police outside his home and assented to

5

the officers’ demands that he go to the hospital2 only

after telling them he did not consent to the seizure of

his firearm. Nonetheless, the police entered the house

after Mr. Caniglia left and seized the gun anyway. Id.

at 119–20. Mr. Caniglia has challenged the

warrantless entry to his house and seizure of his gun

under the Fourth Amendment.

The court below found that seizing the gun and

the related home search were constitutionally

permissible because of the CCE. Id. at 132–33. As

defined by the lower court, the CCE allows

warrantless searches where the officer is performing

“noninvestigatory duties, including community

caretaker tasks, so long as the procedure employed

(and its implementation) is reasonable.” Id. at 123.

The court distinguished the CCE from other

exceptions to the warrant requirement that permit

officers to enter a house to provide emergency aid,

prevent the destruction of evidence, or catch a fleeing

suspect. Id. at 126 & n.5. It expressly declined to apply

these doctrines of exigency or emergency. Id. at 126

n.5 (“Because the defendants seek shelter only behind

the community caretaking exception, we have no

occasion to craft crisp distinctions between those three

exceptions. We doubt, however, that either the exigent

circumstances exception or the emergency aid

exception would be a perfect fit for the full tableau of

this case.”). Nor did the court contemplate consent in

reaching its conclusion: “Given the factual disputes

2 It is important to note that whether Mr. Caniglia was seized

when sent to the hospital is only tangentially relevant to this

case and a topic on which Amicus does not take a position. It is

the invasion of his property and privacy rights from the entrance

to the house and seizure of personal chattel property (the gun)

that are at issue in this case.

6

surrounding the representations made to the

plaintiff’s wife, we think it prudent to assume that the

officers’ entry into the home was not only warrantless

but also nonconsensual.” Id. at 122.

Applying this broad CCE exception to the home

contradicts this Court’s precedents and would degrade

the security interests of the home below the

protections afforded by the Fourth Amendment at the

time it was ratified. Application of the CCE to the

home would likewise overextend officer discretion

beyond constitutional limits, exposing private houses

to the threat of arbitrary intrusion.

II.

THE COMMUNITY CARETAKING

EXCEPTION DOES NOT EXTEND TO HOMES

The CCE has no place in the home. Extending the

exception to homes would violate this Court’s

precedents limiting the CCE to vehicles as well as the

Fourth Amendment’s property rights baseline that

regards warrantless trespasses against the home as

presumptively

unconstitutional,

subject

to

rehabilitation only through a warrant exception that

constituted a legal police practice under the common

law of the 18th Century. Even under the balancing

test this Court has favored since the 1960s, the home’s

paramount

Fourth

Amendment

importance

outweighs

any

government

interest

in

a

nonimminent, nonemergency function.

A.

This Court’s Precedents Exclude Homes

from the Community Caretaking

Exception.

The First Circuit’s analysis strays from this

Court’s past holdings differentiating home searches

7

from the vehicle search at issue in the seminal

community caretaker precedent of Cady, 413 U.S. at

439. In that case, police seized a weapon from a vehicle

that was unattended after its owner was arrested, to

prevent it from being accessed by passersby in a public

place. This Court has never applied the CCE to the

home, as the lower court did in this case. This silence

is not accidental or due to lack of opportunity. Cady

expressly differentiated the vehicle search from a

home search, id. at 439–44, and this Court has

subsequently distinguished Cady from cases involving

home searches. See South Dakota v. Opperman, 428

U.S. 364, 367 (1976) (noting that vehicle search at

issue would not have been upheld had it been a home

search). The First Circuit’s decision should be

overturned for contradicting this Court’s precedent

differentiating the CCE from home searches.

B.

The Exception Should Continue

To Exclude Homes.

“In terms that apply equally to seizures of

property and to seizures of persons, the Fourth

Amendment has drawn a firm line at the entrance to

the house. Absent exigent circumstances, that

threshold may not reasonably be crossed without a

warrant.” Payton v. New York, 445 U.S. 573, 590

(1980). This is the most basic application of the

Amendment,

securing

private

homes

from

warrantless government trespass. This Court’s recent

cases on trespassory searches make clear that this

original meaning of the amendment still applies when

the government invades private property, as it did

when seizing Mr. Caniglia’s gun. Even looking to the

policy-based balancing analysis this Court has at

times employed to craft or expand warrant exceptions,

8

the historic importance of the liberty, property, and

privacy interests Americans hold in their own houses

outweighs the government’s interest in trespassing on

the home without a warrant to carry out a

nonemergency community caretaker function.

1.

Trespass on a home without a warrant

is unreasonable per se.

This Court has made clear that a trespass without

a warrant is presumed to violate the Fourth

Amendment’s prohibition on unreasonable searches.

From 1967 until 2012, the Supreme Court developed

a jurisprudence that predominantly defined Fourth

Amendment interests in terms of an individual’s

reasonable expectation of privacy. Katz, 389 U.S. at

361; see also, e.g., Michigan Dep’t of State Police v.

Sitz, 496 U.S. 444, 448–49 (1990) (emphasizing the

minimal level of intrusion on privacy effected by a

sobriety checkpoint); New York v. Burger, 482 U.S.

691, 699 (1987) (emphasizing diminished privacy

interest in justifying warrantless searches of closely

regulated industries). But in United States v. Jones,

565 U.S. 400 (2012), this Court emphasized that “the

Katz reasonable-expectation-of-privacy test has been

added to, not substituted for, the common-law

trespassers test.” Id. at 409. The Fourth Amendment

is at issue whenever the government trespasses on

property, no matter the privacy interests involved. Id.

at 404; see also Florida v. Jardines, 569 U.S. 1, 11

(2013) (recognizing Fourth Amendment property

protection extends to curtilage). The Fourth

Amendment’s language, in extending its protection to

persons, houses, papers, and effects, “reflect[s] its

close connection to property.” Carpenter v. United

States, 138 S. Ct. 2206, 2239 (2018) (Thomas, J.,

9

dissenting) (quoting Jones, 565 U.S. at 405). Though

the Justices sitting on this Court have disagreed

about the role of expectations of privacy in Fourth

Amendment cases, there is broad consensus that a

trespassory search, as in this case, must be

accompanied by a warrant. See, e.g., Carpenter, 138 S.

Ct. at 2268 (Gorsuch, J., concurring); Jones, 565 U.S.

at 406 (opinion by Scalia, J., in which Roberts, C.J.,

Thomas, and Kennedy, JJ., joined); id. at 430 (Alito,

J., concurring in judgment); id. at 413–14 (Sotomayor,

J., concurring).

The property “owner’s right to exclude others” is

“perhaps the most fundamental of all property

interests.” Lingle v. Chevron, 544 U.S. 528, 539 (2003).

The Founders were particularly concerned with

property rights. For this reason, the Fourth

Amendment secures a list of property interests,

including “houses,” from arbitrary government

intrusions. U.S. Const. amend. IV. This Court has

reaffirmed the importance of the property interests

the Fourth Amendment protects through a string of

recent decisions. In Collins v. Virginia, 138 S. Ct. 1663

(2018), it held that warrantless physical intrusions

into the curtilage were per se unreasonable, even for

the purpose of searching a vehicle for which there was

probable cause of criminal involvement. Id. at 1671–

72. In Jones, it applied common-law property

principles in ruling that the attachment alone of a

tracking device to a vehicle was per se unreasonable

as a trespass to an “effect.” 565 U.S. at 404. And in

Jardines, this Court quoted Entick v. Carrington to

emphasize the importance of the property interests

involved in a search that trespasses against the house

and its curtilage, recognizing that the “law holds the

property of every man so sacred, that no man can set

10

his foot upon his neighbor’s close without his leave[,]”

569 U.S. at 7–8 (quoting Entick v. Carrington, 2 Wils.

K.B. 275, 95 Eng. Rep. 807, 817 (K.B. 1765)), including

agents of the state.

The contours of this trespassory search doctrine

have been a part of the Fourth Amendment since its

inception. This Court has repeatedly emphasized the

Amendment’s focus on home trespass, holding that

“[p]hysical intrusion into the home is the chief evil

against which the wording of the Fourth Amendment

is directed.” See Illinois v. McArthur, 531 U.S. 326,

331 (2001); Payton, 445 U.S. at 585 (1980) (quoting

United States v. United States Dist. Court for Eastern

Dist. of Mich., 407 U.S. 297, 313 (1972)). This

language has spanned decades of cases because it is

grounded in the founding-era’s irreducible minimum

protections. See United States v. Jones, 565 U.S. 400,

406 (2012) (quoting Kyllo v. United States, 533 U.S.

27, 34 (2001), to hold that, “At bottom, we must

“assur[e] preservation of that degree of privacy

against government that existed when the Fourth

Amendment was adopted”). The minimum foundingera protections do not allow the CCE to apply to homes

because “absent exigent circumstances, a warrantless

entry to search for weapons or contraband is

unconstitutional[.]” Payton, 445 U.S. at 587–88. In

accordance with this “long–settled premise[,]” the

Court has excused warrantless invasions of the home

only when it is proved to be strictly necessary to

apprehend a fleeing suspect, prevent the destruction

of evidence, or render emergency aid. See Kentucky v.

King, 563 U.S. 452, 460 (2011).

11

As for the ruling in Cady, there are reasons to

treat trespasses upon vehicles with lesser scrutiny

than trespasses to homes that are compatible with

this founding-era understanding of the right against

unreasonable searches and seizures. In Carroll v.

United States, more than forty years before the Katz

privacy test came about, this Court held that vehicles

were subject to search under a warrantless probable

cause standard, pointing to the legislation and

practices of this country in the late 18th century. 267

U.S. 132, 149–54 (1925). Indeed, one of John Adams’

principal objections to the seizure of John Hancock’s

ship, the Liberty—which would become a flashpoint in

the growing sentiment for American independence—

was founded in great part on the absence of specific

cause. Thomas K. Clancy, The Framers’ Intent: John

Adams, His Era, and the Fourth Amendment, 86 Ind.

L.J. 979, 1019–20 (2011). This disparate treatment

shows that the security of the home was treated

differently than searches of vehicles of transport, even

during the Founding era. Thus, this Court has always

read the Fourth Amendment to apply to the home

more forcefully, repeatedly holding that “[p]hysical

intrusion into the home is the chief evil against which

the wording of the Fourth Amendment is directed.”

See McArthur, 531 U.S. at 331; Payton, 445 U.S. at

585 (quotation omitted).

At the time of the founding, the only exceptions to

the warrant requirement which applied to the home

were exceptions based in exigency. Georgia v.

Randolph, 547 U.S. 103, 123 (2006) (Stevens, J.,

concurring) (“At least since 1604 it has been settled

that in the absence of exigent circumstances, a

government agent has no right to enter a ‘house’ or

‘castle’ unless authorized to do so by a valid warrant.”)

12

(citing Semayne’s Case, 77 Eng. Rep. at 195).3

Likewise, this Court has often held that exigency is a

prerequisite to a warrantless intrusion into a home.

See Payton, 445 U.S. at 590 (“Absent exigent

circumstances, [the home’s] threshold may not

reasonably be crossed without a warrant.”); Welsh v.

Wisconsin, 466 U.S. 740, 750 (1984) (“Before agents of

the government may invade the sanctity of the home,

the burden is on the government to demonstrate

exigent circumstances that overcome the presumption

of unreasonableness that attaches to all warrantless

home entries.”). But the First Circuit placed these

doctrines to the side. See Caniglia, 953 F.3d at 122,

126 & n.5.

The lower court could have addressed the

trespass-based property interests involved in this case

by asking whether Mr. Caniglia’s wife consented to

the search of the house and whether she had the

capacity or apparent authority to consent to the

seizure of the gun, see United States v. Matlock, 415

U.S. 164, 169–70 (1974) (outlining the effect of

3 See also, e.g., Thomas K. Clancy, The Fourth Amendment: Its

History and Interpretation 24–25, § 2.2 (2009) (discussing hot

pursuit); Laura K. Donohue, The Original Fourth Amendment,

83 U. Chi. L. Rev. 1181, 1222–23 (2016) (discussing the common

law “hue and cry”); United States v. Robinson, 414 U.S. 218, 224–

29 (1973) (examining the historical and traditional justifications

for the search incident to arrest doctrine); Carroll, 267 U.S. at

153–54 (citing historical evidence from the Founding era that

rendered the automobile exception consistent with the Fourth

Amendment); United States v. Watson, 423 U.S. 411, 418 (1976)

(“The cases construing the Fourth Amendment thus reflect the

ancient common-law rule that a peace officer was permitted to

arrest without a warrant for a misdemeanor or felony committed

in his presence as well as for a felony not committed in his

presence if there was reasonable ground for making the arrest.”).

13

authority and consent to the search of shared

property). Instead, it assumed that the police did not

obtain consent. Caniglia, 953 F.3d at 122. After

discarding the emergency aid exception and consent,

id. at 126 & n.5, the First Circuit’s deliberations on

the “reasonableness” of this search should have been

at an end: Because there was no warrant and no

consent, the search of the home was definitionally

unreasonable.

2.

A noninvestigatory search of the home

does not relegate it to a lesser degree

of scrutiny.

Good intentions are not a substitute for a neutral

arbiter’s judgment and do not overcome the foundingera requirement of exigency for warrantless home

entries. This Court has already decided that that all

invasions of a home by a government agent are

searches under the Fourth Amendment, Payton, 445

U.S. at 585 (quoting Boyd v. United States, 116 U.S.

616, 630 (1886)). Likewise, any government intrusion

of the home subjects its intimacies to inspection,

regardless of the purpose of the search. See Kyllo, 533

U.S. at 37. These holdings make no exception for entry

for the purpose of community caretaking or some

other noninvestigatory purpose. See Camara, 387 U.S.

at 534–35.

As far as the lower court’s factual analysis shows,

the exigency elements were deficient in this case. See

Caniglia, 953 F.3d at 126 (“[T]he terms ‘imminent’

and ‘immediate,’ as used throughout this opinion, are

not imbued with any definite temporal dimensions.”).

The circuit court based its decision on the CCE,

exclusively, noting that the government did not

attempt to justify its warrantless search and seizure

14

based on either emergency aid or exigent

circumstances. Id. at 126 n.5. If there was evidence

that the presence of a firearm in the house posed an

imminent threat of bodily harm to someone in the

house, then the police would have been permitted to

enter without a warrant under Brigham City v.

Stuart, 547 U.S. 398 (2006).

Finally, concluding that the officers’ intentions

determine the scope of Fourth Amendment protection

would be anomalous. The practical impact of such a

holding would provide officers with more leniency to

invade the privacy of average citizens than the officers

enjoy when investigating those suspected of crimes.

Fourth Amendment protections should not apply with

more force when the person searched is suspected of a

crime than when the person is not. Camara v. Mun.

Court of City & Cty. of San Francisco, 387 U.S. 523,

530 (1967).

C.

Privacy Interests Are at Their Zenith

in the Home.

Even if the Court were to look past the

trespassory test for reasonableness that requires

exigent circumstances or an emergency to justify a

warrantless search, the balance of interests would

weigh against extending the CCE to private homes.

“[W]hen it comes to the Fourth Amendment, the home

is first among equals. At the Amendment’s ‘very core’

stands ‘the right of a man to retreat into his own home

and there be free from unreasonable government

intrusion.’” Jardines, 569 U.S. at 6 (quoting

Silverman v. United States, 365 U.S. 505, 511 (1961)).

Thus, it is difficult to overstate the privacy and

property interests that attach to it. From the property

right of exclusive possession to the privacy interest of

15

enjoying the intimate details of home life, the liberty

interests tied up in dwellings easily outmatch the

government’s asserted interest in entering homes to

perform an ill-defined and nonemergency caretaking

function.

Indeed, Americans’ assertion of their right to the

security

of

their

homes

represented

“the

commencement of the controversy between Great

Britain and the Colonies.” Nelson B. Lasson, The

History and Development of the Fourth Amendment to

the United States Constitution 61 (1970) (quoting

Mabel Hill, Liberty Documents 188–89 (New York

1901)). The arbitrary invasions of Americans’ homes

by British officers was a principal trigger for the

American Revolution, and James Otis’ spirited

arguments against them in Paxton’s Case represent

the foundation for the right against unreasonable

searches and seizures. That case inspired the

language drafted by John Adams for the

Massachusetts Constitution, which ultimately served

as a model for the federal Fourth Amendment. See

Thomas K. Clancy, The Framers’ Intent: John Adams,

His Era, and the Fourth Amendment, 86 Ind. L.J. 979,

1027–29, 1050–51 (2011). It prohibited all

unreasonable searches and seizures of homes and

other properties rather than serving as merely a

prohibition of general warrants.

In Paxton’s Case, Otis represented a group of

merchants challenging searches of their homes (and

businesses) by customs officials, where he “assert[ed]

that ‘the freedom of one’s house’ was among ‘the most

essential branches of English liberty.’” William J.

Cuddihy, The Fourth Amendment: Origins and

Original Meaning 602–1791 378 (2009) (quoting Brief

16

of Otis, Paxton’s Case (Mass. Sup. Ct. 1761), and

Massachusetts Spy, April 29, 1773 (vol. 3, no. 117),

p. 3, col. 1). This language is echoed in Payton, where

this Court struck down the practice of warrantless

arrests in the home: “The zealous and frequent adage

that ‘a man’s house is his castle,’ made it abundantly

clear both in England and the Colonies that ‘the

freedom of one’s house’ was one of the most vital

elements of English liberty.” 445 U.S. at 596–97.

Indeed, “[w]e have . . . lived our whole national history

with an understanding of [this] ancient adage . . . [that

t]he poorest man may in his cottage bid defiance to all

the forces of the Crown.” Randolph, 547 U.S. at 115

(quoting Miller v. United States, 357 U.S. 301, 307

(1958)) (alteration in original).

Decisions of this Court recognizing this ancient

heritage are numerous and have routinely treated the

home with greater deference than other items secured

by the Fourth Amendment. See, e.g., United States v.

Karo, 468 U.S. 705, 716 (1984) (upholding warrantless

electronic beeper surveillance with the exception of

when the beeper is located in a suspect’s home);

Carroll, 267 U.S. at 153 (subjecting vehicles to lesser

protection than the home); compare United States v.

Watson, 423 U.S. 411, 420 (1976) (upholding

warrantless arrests of suspects on probable cause),

and Payton, 445 U.S. at 590–98 (prohibiting

warrantless arrests of suspects in the home, even with

probable cause).

The home is the place where persons and families

carry out the intimate details of life. From registration

numbers on home appliances to the precise time of a

shower, things that happen in the home are private.

Kyllo, 533 U.S. at 38. And much like the location data

17

at issue in United States v. Jones, there is always a

risk that the disclosed information may lead to a more

classically private discovery, such as a medical

diagnosis, a person’s sexuality, or membership in an

anonymous group. 565 U.S. 400, 415 (2012)

(Sotomayor, J., concurring). Where those intimate

privacy interests are weighed against a government’s

interest in carrying out a nonemergency community

caretaking function, that government interest must

yield to the sphere of liberty ascribed to this sacred

place of family privacy by the Constitution.

The lower court erred, in part, by failing to

properly value the gravity of police intrusion into the

home and its effect on privacy interests. Instead of

recognizing that “[i]n the home . . . all details are

intimate details, because the entire area is held safe

from prying government eyes[,]” Kyllo v. United

States, 533 U.S. 27, 37 (2001), it categorized the police

function as a minimal intrusion by distinguishing a

“ransack[ing]” of Mr. Caniglia’s home from the

“tailored . . . movements” of the police officers in

retrieving his property from the house. Caniglia, 952

F.3d at 133. But a person’s house need not be

ransacked for an intrusion to be unreasonable. Every

intrusion against the privacies of the home by the

state is a grave one.

In Kyllo, merely measuring the heat levels

radiating from a house was an unreasonable

intrusion, despite the limited information it conveyed,

533 U.S. at 40. In Collins, the mere entrance of law

enforcement upon the curtilage of a home constituted

an unreasonable search, even though the officers

tailored their search to a vehicle they believed

contained evidence of crime, 138 S. Ct. at 1671–73.

18

And in United States v. Karo, this Court held that

even the electronic signature of a beeper device could

not be activated from inside a suspect’s house without

unreasonably intruding upon privacy. 468 U.S. 705,

717 (1984). “The Fourth Amendment reflects the

views of those who wrote the Bill of Rights that the

privacy of a person’s home and property may not be

totally sacrificed in the name of maximum simplicity

in enforcement of the criminal law.” Mincey v.

Arizona, 437 U.S. 385, 393–94 (1978). For that reason,

“warrants are generally required to search a person’s

home or his person unless the exigencies of the

situation make the needs of law enforcement so

compelling that the warrantless search is objectively

reasonable under the Fourth Amendment.” Id.

(emphasis added; citations and quotation marks

omitted).

As the foregoing discussion demonstrates, only

compelling emergencies allow warrantless intrusions

by the state,4 and the lower court made no finding of

such a condition here. Caniglia, 953 F.3d at 122, 126

& n.5, 131. This conflicts with this Court’s limitation

of warrantless home searches to cases of hot pursuit

of a fleeing suspect, the imminent risk of flight or

destruction of evidence, or the immediate need to

render emergency aid. See King, 563 U.S. at 460. Since

the First Circuit’s analysis untethers the search from

temporal constraints, any alleged interest in

“We do not question the right of the police to respond to

emergency situations . . . ‘The need to preserve life or avoid

serious injury is sufficient justification for what would be

otherwise illegal absent an exigency or emergency.’” Mincey v.

Arizona, 437 U.S. 385, 392–93 (1978) (citations omitted).

4

19

community caretaking is outweighed

Caniglia’s property and privacy interests.

by

Mr.

III.

THE COMMUNITY CARETAKER

EXCEPTION IS UNWORKABLE IN

THE CONTEXT OF THE HOME BECAUSE

IT PLACES NO FIXED LIMITS ON THE

DISCRETION OF OFFICERS IN THE FIELD

Even if this Court is inclined to find that the

balance of interests favors a warrantless community

caretaking function for police in private homes, the

exception is unworkable because the First Circuit’s

articulated standard for the CCE places no real fixed

and enforceable limits on officer discretion that would

prevent the arbitrary exercise of this power. The First

Circuit simply required that the “procedure employed

(and its implementation) is reasonable.” Caniglia, 953

F.3d at 123. Limits on officer discretion is one of the

hallmarks of Fourth Amendment protection, and a

community caretaker exception that extends to the

house based on ad-hoc reasonableness rather than the

existence of an objectively measurable emergency,

exigency, or the impracticability of obtaining a

warrant is an exception that would swallow the

warrant requirement whole.

A.

Obtaining a Warrant Must Be

Impracticable for a Warrantless

Home Search To Be Reasonable.

Warrants are generally only excused in cases

where either the necessity of immediate action or the

functions of the Warrant Clause would render the

search futile. See Stuart, 547 U.S. at 406 (upholding

warrantless dwelling search by officers who had

20

“objectively reasonable basis for believing both that

the injured adult might need help and that the

violence in the kitchen was just beginning”); Burger,

482 U.S. at 710 (dispensing with warrant requirement

where it would render regulatory inspection schemes

ineffective). This Court has never excused a

warrantless home search where the police could have

obtained a warrant without adverse consequences to

an individual or their investigation.

The lower court’s decision relied upon no such

impracticability for justifying the warrantless

intrusion into Mr. Caniglia’s home. See Caniglia, 953

F.3d at 122 n.5 (recognizing that the exigent

circumstances exception, unlike the community

caretaker exception, “is defined by a time-urgent need

to act that makes resort to the warrant process

impractical”); id. at 126 (eschewing the need for

immediate necessity to uphold a community

caretaking search of a dwelling, opting for a loose

definition of “immediate” and “imminent” to describe

the threat of harm). Instead, it opted to stretch the

meaning of the terms “immediate” and “imminent”

with respect to the perceived threat from Mr. Caniglia

to excuse the police’s entry to the home. Id. But when

the definition of these temporal constraints is

weakened, so is the contention that obtaining a

warrant is impracticable.

In the absence of immediate necessity, there were

other (constitutional) options open to the officers

besides a warrantless intrusion. In Segura v. United

States, this Court upheld the police practice of

securing a location while a warrant was obtained

through proper channels. 468 U.S. 796, 798 (1984).

Since warrants are traditionally ex parte procedures,

21

one of the officers at Mr. Caniglia’s house could have

taken a statement from his wife and gone to secure a

warrant while another officer remained at the house,

securing it until the requested writ was obtained.

Simply put, warrantless intrusions into the home,

the place of apex property, privacy, and liberty

interests, should be an act of last resort. Indeed, this

is the standard adopted by the United States Court of

Appeals for the Ninth Circuit in a decision cited by the

opinion below. See Rodriguez v. City of San Jose, 930

F.3d 1123, 1137 (9th Cir. 2019) (requiring that “a

warrant could not have been obtained in time” as part

of the government’s burden for establishing a

reasonable, warrantless community caretaking

search of the home). The lower court erred by not

applying the principle that the police must, when

practicable, follow the judicial process by obtaining

permission from a judge before entering a dwelling as

community caretakers. The Fourth Amendment

strikes an important balance between the security of

the home and expedient police powers and part of that

balance is designating a judicial officer as the arbiter

of whether a proposed search is reasonable, where

possible.

Since the officers who

searched

Mr. Caniglia’s home could have secured it while they

sought a judge’s permission to enter and seize his gun,

sound options remained available to them in

complying with the Constitution. However, they did

not avail themselves of this process. Therefore, the

search of Mr. Caniglia’s home was unreasonable.

22

B.

The Community Caretaker Exception Does

Not Place Sufficient Limits on Officer

Discretion To Guard Against Arbitrary

Intrusions on the Privacy of the Home.

The CCE does not place sufficient limitations on

officer discretion in the context of the home because it

asks whether the officer reasonably engaged in an

undefined act of “community caretaking,” which is too

vague to impose real bars on arbitrary intrusions. As

discussed above, see supra Parts II.B.1 & II.C, the

home is the place where property and privacy

interests are at their zenith, where all details are

intimate details, and therefore the CCE would subject

it to a greater threat of arbitrary invasion than it does

to vehicles because every trespass on the home is a

grave one. Likewise, as discussed above, see supra

Parts II.A & II.C, this Court has a long history of

tolerating warrant exceptions related to “persons,”

“papers,” or “effects” that it would not tolerate for

“houses.”

Eliminating arbitrary discretion from officers in

the field is one of the primary concerns of the Fourth

Amendment. See Brown v. Texas, 443 U.S. 47, 50

(1979) (“A central concern . . . has been to assure that

an individual’s reasonable expectation of privacy is

not subject to arbitrary invasions solely at the

unfettered discretion of officers in the field.”) (citing

Delaware v. Prouse, 440 U.S. 648, 654–55 (1979));

Camara, 387 U.S. at 527 (“The basic purpose of this

Amendment . . . is to safeguard the privacy and

security of individuals against arbitrary invasions by

governmental officials.”). After judicial warrants, the

best safeguard against arbitrary search powers is the

requirement of a specific cause. Indeed, “[t]he core

23

complaint of the colonists . . . was the general,

suspicionless nature of the searches and seizures . . . .

As they sought to regulate searches and seizures, the

framers held certain principles to be fundamental, of

which particularized suspicion was in the first rank.”

Thomas K. Clancy, The Role of Individualized

Suspicion in Assessing the Reasonableness of Searches

and Seizures, 25 U. Mem. L. Rev. 483, 528 (1994–

1995) (footnotes and citations omitted). The most

familiar example is Terry v. Ohio, which permits

officers to frisk a suspect for weapons, but only if the

officer has a reasonable, specific, and articulable

suspicion that a person suspected of criminal

involvement is armed. 392 U.S. 1, 27 (1968). Likewise,

in New Jersey v. T.L.O., this Court held that in the

interest of efficient administration of discipline, public

school officials could warrantlessly search their

students based on that same level of specific

evidentiary cause for a violation of school policies. 469

U.S. 325, 341-42 (1985). Requiring that an officer

possess specific cause before engaging in a

warrantless search is one way to enforce an objective

standard that fosters adherence to the Fourth

Amendment.

However, in a community caretaker exception

such as the First Circuit outlined, a specific cause

requirement applies no effective limitation on officer

discretion because the standard against which officers

are required to establish evidence is itself

discretionary. The lower court requires only that the

facts known to the officers are “sufficient to establish

that an officer’s decision to act in a caretaking

capacity was ‘justified on objective grounds.’”

Caniglia, 953 F.3d at 126 (quoting United States v.

Rodriguez–Morales, 929 F.2d 780, 787 (1st Cir. 1991)).

24

Presumably, those “objective grounds” won’t always

be the nonimminent threat that a person will selfharm with a firearm that is inside that person’s home.

What constitutes “probable cause” or “reasonable

suspicion” to establish the need for community

caretaking is unknown and perhaps unknowable.

This conclusion is borne out by examining the

cause requirements this Court has previously adopted

for reasonable warrantless searches of the home.

First, the exigent circumstances test asks whether

officers have probable cause to believe that evidence

is being destroyed or a suspect is fleeing. See King, 563

U.S. at 460. Thus, there is a specific type of conduct or

event against which to measure an officer’s evaluation

of the facts. Likewise, the emergency aid exception

requires that there be probable cause of an imminent

threat of injury or the need to intercede in order to

render emergency aid. See Stuart, 547 U.S. at 406. It

is objectively measurable whether evidence is likely to

be destroyed, a person is about to flee, or someone is

in need of emergency aid. But defining “community

caretaking,” let alone determining when it is justified,

is nebulous by comparison, making the officer in the

field the lone arbiter of reasonableness. Such a

standard leaves rights uncertain and delegates the

judge’s role in defining the scope and permissibility of

searches and seizures to officers in the field with no

objective metrics that place officers or anyone else on

notice of what it means.

In other cases, this Court has upheld warrantless

searches without specific cause for “special needs”

purposes only where certain established policies or

procedures—enforceable either administratively or by

statute—place real limits on the discretion of the

25

officers who carry them out. Inventory searches,

inspections of closely regulated industries, sobriety

checkpoints, and suspicionless drug testing fall into

this category. See Patel, 576 U.S. at 432 (recognizing

the requirement that regulatory schemes sufficiently

limit the scope and manner of industrial inspections);

Florida v. Wells, 495 U.S. 1 (1990) (striking down

inventory search for absence of policy limiting officer

discretion regarding containers in vehicles); Sitz, 496

U.S. at 452–53 (identifying the limitations placed on

officer discretion by guidelines governing the

operation of a DUI checkpoint); Skinner v. Railway

Labor Executives’ Ass’n, 489 U.S. 602, 622 (1989)

(marking “the minimal discretion vested in those

charged with administering the [suspicionless drug

testing] program”). But this Court has never included

private homes within its ambit. In fact, it considered

in Camara v. Municipal Court whether to permit

warrantless searches of private homes for the “special

need” of building and safety code enforcement and

declined to do so, adopting a default requirement that

inspectors obtain at the bare minimum an

administrative warrant. Camara, 387 U.S. at 528—

529. To permit procedure-based limits alone to

perform the Warrant Clause’s function of limiting

officer discretion regarding the search of private

homes would therefore be a departure from this

Court’s case law. See Caniglia, 953 F.3d at 126.

26

Nonetheless, where no policies, procedures, or

statutory safeguards exist, or where they exist but are

not followed or are insufficient, this Court considers a

“special needs” search or seizure “unreasonable.” See

Wells, 496 U.S. at 452–53.5 Here, the lower court

stated that “sound police procedures” could guide the

constitutional application of community caretaking

searches of the home. Caniglia, 953 F.3d at 126. But

this language does not provide sufficiently

measurable and enforceable criteria for limiting the

discretion of officers in the field. This standard is

anemic by the First Circuit’s own holding, which goes

on to say that fixed protocol or criteria are

unnecessary. Id. It pointed only to the

“reasonableness” and “soundness” of the officers’

conduct, eschewing any further limits on their

discretion. Id. This is merely a rule of ad-hoc

The closely regulated industry doctrine, though resting on

uncertain foundations, has produced quite a jurisprudence in

lower courts of determining when procedural safeguards

sufficiently limit officer discretion to serve as an adequate

substitute for a judicial warrant. See Hansen v. Illinois Racing

Bd., 534 N.E.2d 658 (Ill. App. Ct. 1989) (holding horse racing

closely regulated but inspection standard of statute did not

sufficiently limit officer discretion); State v. Marsh, 823 P.2d 823

(Kan. Ct. App. 1991) (animal dealers closely regulated but owner

of puppy mill not licensed and therefore was not on notice of

warrantless inspection regimes; discretion of officers not

sufficiently limited); State v. VFW Post 3562, 525 N.E.2d 773

(Ohio 1998) (invalidating warrantless inspection by liquor

enforcement because law did not sufficiently restrain time, scope,

manner of search); State v. McClure, 74 S.W.3d 362 (Tenn. Crim.

App. 2001) (recognizing motor carrier industry as closely

regulated but invalidating search because statute allowed

officers too much discretion); Santikos v. State, 836 S.W.2d 631

(Tex. Crim. App. 1992) (en banc) (“at any time” inspection

provision in liquor licensing scheme did not sufficiently limit

officer discretion).

5

27

reasonableness, reviewable by the courts under a

case-by-case basis but providing insufficient criteria

to limit the discretion of officers in the field. Thus,

even if this Court were inclined to adopt a search

exception for community caretaking in the home,

“sound police procedures” would not pass

constitutional muster. Indeed, there is no set of

enforceable criteria that can sufficiently limit officer

discretion to carry out a function so vacuously defined

as “community caretaking” in a place as intimately

bound up in the property and privacy interests of

Americans as their private homes.

CONCLUSION

This Court should reject wholesale the attempt to

expand the ill-defined community caretaker exception

to houses. The home is the place where property and

privacy interests are at their zenith. Its security

against arbitrary intrusion motivated in substantial

part the war for this nation’s independence and the

constitutional amendment that defends this right

should be strictly enforced. Searches of the home

without an emergency basis were illegal at the time of

the founding and remain so today. Amicus, therefore,

opposes extension of the community caretaker

exception to houses, as it violates the original

meaning of the right against unreasonable searches

28

and seizures and would expose private homes to the

threat of arbitrary intrusions by the state.

DATED: January 2021.

Respectfully submitted,

DANIEL WOISLAW

Counsel of Record

HANNAH SELLS MARCLEY

STEVEN M. SIMPSON

Pacific Legal Foundation

3100 Clarendon Blvd., Suite 610

Arlington, Virginia 22201

Telephone: (202) 888-6881

Email: dwoislaw@pacificlegal.org

Email: hmarcley@pacificlegal.org

Email: ssimpson@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation