Amicus Curiae Brief — Edward A. Caniglia, Petitioner v. Robert F. Strom, et al.
Supreme Court briefJan 15, 2021
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No. 20-157
IN THE
Supreme Court of the United States
_______________________
EDWARD A. CANIGLIA,
v.
ROBERT F. STROM, ET AL.,
______________________
Petitioner,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the First Circuit
______________________
BRIEF OF CONSTITUTIONAL ACCOUNTABILITY
CENTER AS AMICUS CURIAE IN
SUPPORT OF PETITIONER
_______________________
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
DAVID H. GANS
BRIAN R. FRAZELLE
MIRIAM BECKER-COHEN
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW, Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amicus Curiae
January 15, 2021
* Counsel of Record
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
ii
INTEREST OF AMICUS CURIAE ......................
1
INTRODUCTION AND SUMMARY OF ARGUMENT.................................................................
1
ARGUMENT .........................................................
5
I.
THE FRAMERS VIEWED THE
FOURTH AMENDMENT AS A FUNDAMENTAL SAFEGUARD AGAINST
UNRESTRAINED
GOVERNMENT
SEARCHES OF THE HOME ...............
THE EXTENSION OF THE “COMMUNITY CARETAKING” EXCEPTION RECREATES THOSE EVILS
THAT THE FOURTH AMENDMENT
WAS DESIGNED TO ERADICATE ....
16
A. The Decision Below Ignores the
Home’s Unique Sanctity in the
Eyes of the Framers ........................
16
B. Extending the “Community Caretaking” Exception Would Grant a
Discretionary Search and Seizure
Power to Police That the Fourth
Amendment Was Designed to Protect Against......................................
20
CONCLUSION .....................................................
27
II.
(i)
5
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Arizona v. Gant,
556 U.S. 332 (2009) .................................... 4, 19
Bovat v. Vermont,
141 S. Ct. 22 (2020) .................................... 6, 24
Cady v. Dombrowski,
413 U.S. 433 (1973) ............................... 4, 17, 21
California v. Ciraolo,
476 U.S. 207 (1986) .................................... 5, 18
Camara v. Mun. Court of City & Cty. of
S.F.,
387 U.S. 523 (1967) ....................................
20
Cardwell v. Lewis,
417 U.S. 583 (1974) ....................................
18
Carpenter v. United States,
138 S. Ct. 2206 (2018) ............................... 16, 20
Chambers v. Maroney,
399 U.S. 42 (1970) ...................................... 4, 17
Chandler v. Miller,
520 U.S. 305 (1997) ....................................
20
Collins v. Virginia,
138 S. Ct. 1663 (2018) .................... 5, 16, 18, 19
Coolidge v. New Hampshire,
403 U.S. 443 (1971) ....................................
5
Cooper v. California,
386 U.S. 58 (1967) ......................................
4
iii
TABLE OF AUTHORITIES – cont’d
Page(s)
Entick v. Carrington,
19 How. St. Tr. 1029 (C.P. 1765) ...............
12
Florida v. Jardines,
569 U.S. 1 (2013) ........................................
5
Georgia v. Randolph,
547 U.S. 103 (2006) ....................................
1
Johnson v. United States,
333 U.S. 10 (1948) ......................................
5
Kentucky v. King,
563 U.S. 452 (2011) ....................................
26
Ker v. California,
374 U.S. 23 (1963) ......................................
8
Kyllo v. United States,
533 U.S. 27 (2001) ..................................... 18, 19
Lockhart-Bembery v. Sauro,
498 F.3d 69 (1st Cir. 2007) ........................
25
Maryland v. King,
569 U.S. 435 (2013) ....................................
13
McDonald v. United States,
335 U.S. 451 (1948) ........................... 4, 6, 23, 26
Messerschmidt v. Millender,
565 U.S. 535 (2012) ....................................
24
Miller v. United States,
357 U.S. 301 (1958) .................................... 2, 7
Payton v. New York,
445 U.S. 573 (1980) ................................ 2, 5, 16
iv
TABLE OF AUTHORITIES – cont’d
Page(s)
Riley v. California,
573 U.S. 373 (2014) ............................ 18, 19, 27
Semayne’s Case,
5 Co. Rep. 91a, 77 Eng. Rep. 194 (K.B.
1603) ...........................................................
9
Silverman v. United States,
365 U.S. 505 (1961) ....................................
1
South Dakota v. Opperman,
428 U.S. 364 (1976) ....................................
18
United States v. Carloss,
818 F.3d 988 (10th Cir. 2016) ............... 6, 16, 24
United States v. Chadwick,
433 U.S. 1 (1977) ........................................
9
United States v. Rodriguez-Morales,
929 F.2d 780 (1st Cir. 1991) ..................... 21, 25
United States v. U.S. Dist. Court for E.
Dist. of Mich.,
407 U.S. 297 (1972) ....................................
7
Welsh v. Wisconsin,
466 U.S. 740 (1984) ....................................
26
Wilkes v. Wood,
19 How. St. Tr. 1153 (C.P. 1763) ...............
12
Wyoming v. Houghton,
526 U.S. 295 (1999) ....................................
8
v
TABLE OF AUTHORITIES – cont’d
Page(s)
Constitutional Provisions and Legislative Materials
Act of Frauds of 1662, 12 Car. 2, reprinted
in 8 The Statutes at Large of England
and Great-Britain (1763) ..........................
10
1 Annals of Cong. (1789)
(Joseph Gales ed., 1834) ...........................
15
Mass. Const. art. XIV (1780) .......................
14
U.S. Const. amend. IV ................................. 3, 7, 9
Books, Articles, and Other Authorities
Monica C. Bell, Anti-Segregation Policing,
95 N.Y.U. L. Rev. 650 (2020) .....................
23
G. Robert Blakey, The Rule of Announcement and Unlawful Entry: Miller v.
United States and Ker v. California,
112 U. Pa. L. Rev. 499 (1964) ....................
8
Richard Burn, The Justice of the Peace, and
Parish Officer (1758) ..................................
7
William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning
(2009) ...................................................... passim
Thomas K. Clancy, The Framers’ Intent:
John Adams, His Era, and the Fourth
Amendment,
86 Ind. L.J. 979 (2011) ...............................
14
vi
TABLE OF AUTHORITIES – cont’d
Page(s)
A Columbian Patriot, Observations on the
New Constitution, and on the Federal
and State Conventions, reprinted in Pamphlets on the Constitution of the United
States (Paul Leicester Ford ed., 1888).......
14
Thomas Y. Davies, Recovering the Original
Fourth Amendment,
98 Mich. L. Rev. 547 (1999) ................... passim
John Dickinson, Letters from a Farmer in
Pennsylvania, to the Inhabitants of the
British Colonies (3d ed. 1769) ....................
6
Laura K. Donahue, The Original Fourth
Amendment,
83 U. Chi. L. Rev. 1181 (2016) ....... 7, 11, 23, 24
Stefan Ducich, These Walls Can Talk! Securing Digital Privacy in the Smart
Home Under the Fourth Amendment,
16 Duke L. & Tech. Rev. 278 (2018) ..........
9
Essay by a Farmer and Planter, Md. Journal, Mar. 27, 1788, in 5 The Complete
Anti-Federalist (Herbert J. Storing ed.,
1981) ...........................................................
13
Michael Foster, Crown Law (1762) ..............
8
Barry Friedman, Disaggregating the Police
Function, U. Pa. L. Rev. (forthcoming
2021), NYU School of Law, Public Law
Research Paper No. 20-3............................
22
vii
TABLE OF AUTHORITIES – cont’d
Page(s)
Barry Friedman, Unwarranted: Policing
Without Permission (2017).........................
13
David H. Gans, “We Do Not Want to Be
Hunted”: The Right to Be Secure and Our
Constitutional Story of Race and Policing, 11 Colum. J. Race & L. 6 (forthcoming 2021) ........................................ 10, 12, 25, 26
David Gray, The Fourth Amendment in an
Age of Surveillance (2017) .........................
26
1 Matthew Hale, History of the Pleas of
the Crown (1736) ........................................
8
2 William Hawkins, A Treatise of the Pleas
of the Crown (1787) .................................... 7, 8
Hon. M. Blane Michael, Madison Lecture,
Reading the Fourth Amendment: Guidance from the Mischief That Gave It
Birth,
85 N.Y.U. L. Rev. 905 (2010) ....... 10, 11, 18, 20
Josiah Quincy Jr., Reports of Cases Argued
and Adjudged in the Superior Court of
Judicature of the Province of Massachusetts Bay, Between 1761 and 1772
(1865) ..........................................................
11
3 Joseph Story, Commentaries on the Constitution of the United States (1833) ..........
9
Watchman, The Norwich Packet, and the
Wkly. Advtr., Aug. 15, 1782 (no. 461) .......
6
viii
TABLE OF AUTHORITIES – cont’d
Page(s)
2 Works of John Adams (Charles Francis
Adams ed., 1850) ........................................
11
1
INTEREST OF AMICUS CURIAE1
Constitutional Accountability Center (CAC) is a
think tank, public interest law firm, and action center
dedicated to fulfilling the progressive promise of our
Constitution’s text and history. CAC works in our
courts, through our government, and with legal scholars to improve understanding of the Constitution and
preserve the rights and freedoms it guarantees. CAC
has a strong interest in ensuring that the Constitution
applies as robustly as its text and history require and
accordingly has an interest in this case.
INTRODUCTION AND
SUMMARY OF ARGUMENT
“At the very core” of the Fourth Amendment
“stands the right of a man to retreat into his own home
and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505,
511 (1961). Thus, with only “jealously and carefully
drawn” exceptions, the Fourth Amendment prohibits a
police officer’s warrantless entry into a home as “unreasonable per se.” Georgia v. Randolph, 547 U.S. 103,
109 (2006) (internal quotation marks omitted). Yet the
court below declared that a police officer may enter a
person’s home to search and seize without a warrant—
indeed, without so much as any suspicion that a crime
has been committed—so long as the officer is engaged
in a “community caretaking” function. That decision,
1 The parties have consented to the filing of this brief, and
both of their letters of consent have been filed with the Clerk.
Under Rule 37.6 of the Rules of this Court, amicus states that no
counsel for a party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund
the preparation or submission of this brief. No person other than
amicus or its counsel made a monetary contribution to its preparation or submission.
2
untethered from the text and history of the Fourth
Amendment, grants police unbridled discretion to invade the sanctity of the home, and it should be reversed.
The sanctity of the home embodied in the Fourth
Amendment is rooted in the common law maxim that
a “man’s house is his castle.” Payton v. New York, 445
U.S. 573, 596 (1980). At common law, warrantless entry of the home was “drastically limited.” Miller v.
United States, 357 U.S. 301, 306-07 (1958). For purposes of making an arrest, such authority was strictly
confined to felony offenses and a handful of well-defined circumstances based on specific exigencies that
made delay in securing a warrant untenable. See id.
at 307-08. For purposes of the search and seizure of
personal property, warrantless entry of private homes
was even further restricted, as “common-law sources
. . . did not identify any positive justification for a warrantless search of a house—a silence that meant there
was no such justification.” Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.
Rev. 547, 646 (1999).
The Fourth Amendment expanded upon these common law precepts, providing broad protections against
unbridled search and seizure in the home in response
to the specific abuses the colonists suffered under British rule—namely, the use of “general warrants” and
“writs of assistance” that lacked specificity as to the
person and place to be searched and were not based on
any individualized suspicion. As early as the 1600s,
the use of such warrants came under attack in England. They were decried as instruments of arbitrary
power, and popular opposition to them quickly solidified as they were used to ransack the homes of vocal
critics of the British government. During the 1700s,
colonists also began to speak out against general
3
warrants, and their use was one of the chief grievances
that inspired the movement for independence from
British rule.
Anger at the abuse of general warrants and writs
of assistance continued in the post-colonial period, as
the leaders of the new republic called for the nation’s
new national charter to include an explicit provision
protecting against such arbitrary exploitations of
power. The text of the Fourth Amendment, both as
originally drafted and in the form that was ultimately
adopted, reflects the Framers’ staunch opposition to
the use of general warrants to invade the sanctity of
the home. It requires not only that all searches and
seizures be reasonable, but also that all warrants be
supported by “probable cause” and “particularly describ[e] the place to be searched, and the persons or
things to be seized.” U.S. Const. amend. IV. This detailed text reflects the Framers’ core concern with preventing government searches in the absence of some
individualized suspicion that a specific search would
produce evidence of criminal wrongdoing. Fundamentally, the Framers wrote the Fourth Amendment to
strip law enforcement officers of the arbitrary power to
rifle through a person’s most private spaces—particularly within the home—without the independent check
of a neutral magistrate.
The decision below is at odds with these core principles reflected in the text and history of the Fourth
Amendment. First, the extension of the “community
caretaking” exception—which originated in a case involving the search of a motor vehicle—to permit warrantless searches of people’s homes flies in the face of
the Framers’ special solicitude for privacy expectations within the home. This Court has repeatedly declared that “[a]lthough vehicles are ‘effects’ within the
meaning of the Fourth Amendment,” there is a critical
4
“‘constitutional difference between houses and cars.’”
Cady v. Dombrowski, 413 U.S. 433, 439 (1973) (quoting Chambers v. Maroney, 399 U.S. 42, 52 (1970)); see,
e.g., Cooper v. California, 386 U.S. 58, 59 (1967)
(“[S]earches of cars that are constantly movable may
make the search of a car without a warrant a reasonable one although the result might be the opposite in a
search of a home.”). That “constitutional difference”
guided this Court’s decision in Cady to craft a narrow
exception to the warrant requirement for situations in
which local police officers engage in functions with respect to “vehicle accidents in which there is no claim of
criminal liability.” 413 U.S. at 441. The decision of
the court below to expand that exception “untether[s]
the rule from [its] justifications” by “undervalu[ing]
the privacy interests at stake” in the home, the apex of
the Fourth Amendment’s protection. Arizona v. Gant,
556 U.S. 332, 343, 344-45 (2009).
Second, a “community caretaking” exception, particularly as defined by the court below, would grant police officers the very sort of unbridled discretion the
Fourth Amendment was designed to protect against.
Police officers wield an immense amount of power,
even when they are called upon—as so frequently is
the case today—to perform functions outside their core
law enforcement duties. Without clearly delineated
restrictions on the power to search and seize during
the exercise of those functions, i.e., through the independent check of a neutral magistrate, the risk of
abuse of power is impermissibly heightened. See
McDonald v. United States, 335 U.S. 451, 456 (1948)
(“Power is a heady thing . . . [a]nd so the Constitution
requires a magistrate to pass on the desires of the police before they violate the privacy of the home.”).
Thus, by refusing to impose any concrete limitations
on the discretion of police officers to search and seize
5
in the “community caretaking” setting, the decision of
the court below threatens to return our country to a
regime where government authority will be subject to
manipulation and abuse. It would impermissibly
“leave the people’s homes secure only in the discretion
of police officers.” Johnson v. United States, 333 U.S.
10, 14 (1948).
For all of these reasons, this Court should reject the
extension of the “community caretaking” exception to
the home and recommit itself to the specific warrant
requirement enshrined in the Fourth Amendment.
ARGUMENT
I.
THE FRAMERS VIEWED THE FOURTH
AMENDMENT AS A FUNDAMENTAL SAFEGUARD AGAINST UNRESTRAINED GOVERNMENT SEARCHES OF THE HOME.
Time and again, this Court has reaffirmed the
“‘basic principle of Fourth Amendment law’ that
searches and seizures inside a home without a warrant
are presumptively unreasonable.” Payton, 445 U.S. at
586 (quoting Coolidge v. New Hampshire, 403 U.S.
443, 477 (1971)). This rule, rooted in the text and history of the Fourth Amendment, recognizes that the
right of the people to be free from unrestrained search
and seizure is at its apex in the home, where privacy
interests are “most heightened,” California v. Ciraolo,
476 U.S. 207, 213 (1986). Consistent with these principles, this Court has repeatedly “declined to expand
the scope of . . . exceptions to the warrant requirement
to permit warrantless entry into the home.” Collins v.
Virginia, 138 S. Ct. 1663, 1672 (2018); see id. (collecting cases).
“[W]hen it comes to the Fourth Amendment, the
home is first among equals,” Florida v. Jardines, 569
U.S. 1, 6 (2013), reflecting the Founding generation’s
6
understanding that the home is “a place of perfect security,” John Dickinson, Letters from a Farmer in
Pennsylvania, to the Inhabitants of the British Colonies 65 (3d ed. 1769). The drafters of the Fourth
Amendment deemed privacy interests in the home “too
precious to entrust to the discretion of those whose job
is the detection of crime and the arrest of criminals,”
without the independent check of a neutral and detached magistrate. McDonald, 335 U.S. at 455-56; see
Bovat v. Vermont, 141 S. Ct. 22, 22 (2020) (Gorsuch, J.,
respecting the denial of certiorari) (noting the ways in
which police officers, acting on their own, have
“test[ed] the boundaries” of the Fourth Amendment’s
protection for the home); United States v. Carloss, 818
F.3d 988, 1003 (10th Cir. 2016) (Gorsuch, J., dissenting) (same). Thus, absent a specific and particularized
warrant issued by an independent court officer, the
Fourth Amendment guarantees that “[n]o man’s
dwelling, which is his castle, shall be broke open, or
entered, without his own consent.” William J. Cuddihy, The Fourth Amendment: Origins and Original
Meaning 643 (2009) (quoting Watchman, The Norwich
Packet, and the Wkly. Advtr., Aug. 15, 1782 (no. 461),
p. 3, col. 3).
The short yet powerful text of the Fourth Amendment makes clear the significance the Framers attached to the home:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be
seized.
7
U.S. Const. amend. IV. “Houses” are the only specific
location mentioned in the text, reflecting the home’s
unique sanctity in the eyes of the Framers. See Laura
K. Donahue, The Original Fourth Amendment, 83 U.
Chi. L. Rev. 1181, 1194 (2016) (“The object [of the
Fourth Amendment] was to prevent government officials from intruding upon the sanctity of the home unless officials could present evidence, under oath to a
magistrate, of a crime committed.”). As this Court has
put it, “physical entry of the home is the chief evil
against which the wording of the Fourth Amendment
is directed.” United States v. U.S. Dist. Court for E.
Dist. of Mich., 407 U.S. 297, 313 (1972).
The concept of the home as a place of heightened
personal security was a recurring theme in the English
common law courts, whose jurisprudence informed the
drafting of the Fourth Amendment. “From earliest
days, the common law drastically limited the authority
of law officers to break the door of a house to effect an
arrest.” Miller, 357 U.S. at 306-07. Such authority
was largely confined to arrests for felonies, a category
strictly limited to the most serious of crimes. See id.
at 307. For lesser offenses, warrantless entry of the
home was permitted only in a handful of well-defined
circumstances based on specific exigencies that made
delay in securing a warrant untenable. See, e.g., 2 William Hawkins, A Treatise of the Pleas of the Crown 138
(1787) (“where a person authorized to arrest another
who is sheltered in a house, is denied quietly to enter
into it, in order to take him; it seems generally to be
agreed, that he may justify breaking open the doors in
the following instances” (emphasis added)); Richard
Burn, The Justice of the Peace, and Parish Officer 46
(1758) (same). Absent those exigent circumstances,
forcibly entering a home without a warrant was unquestionably “regarded as an unlawful search or
8
seizure under the common law.” Wyoming v. Houghton, 526 U.S. 295, 299 (1999).
Similarly, under the common law, an officer’s right
to enter a private home to search and seize personal
effects was “severely limited.” G. Robert Blakey, The
Rule of Announcement and Unlawful Entry: Miller v.
United States and Ker v. California, 112 U. Pa. L. Rev.
499, 500 (1964); see Davies, supra, at 645 (arguing that
“[t]he warrant was even more critical for justifying
searches of houses than for entering the house to make
an arrest”). Indeed, “common-law sources . . . did not
identify any positive justification for a warrantless
search of a house—a silence that meant there was no
such justification.” Davies, supra, at 646.
One oft-cited example of the common law’s limitation on searches of the home is Semayne’s Case, widely
recognized as establishing the knock-and-announce
rule. See Ker v. California, 374 U.S. 23, 47 (1963)
(Brennan, J., concurring in part and dissenting in
part). In Semayne’s Case, the Court of King’s Bench
upheld—indeed, endorsed—the conduct of an Englishman who refused to permit a sheriff to enter his home
to execute a writ of attachment on the belongings of
his deceased co-tenant. See Blakey, supra, at 500 &
n.9. Though the case involved a civil writ, the common
law courts extended its holding to the criminal context,
and “[o]ver a century later the leading commentators
upon the English criminal law affirmed the continuing
vitality of [the case’s] principle.” Ker, 374 U.S. at 4748 (Brennan, J., concurring in part and dissenting in
part) (citing 1 Matthew Hale, History of the Pleas of
the Crown 583 (1736); 2 Hawkins, supra, c.14, s.1; Michael Foster, Crown Law 320-21 (1762)). That principle, at its core, is found in Sir Edward Coke’s invocation of a famous maxim in his report of Semayne’s
Case: “the house of every one is to him as his castle and
9
fortress, as well for his defence against injury and violence, as for his repose.” Semayne’s Case, 5 Co. Rep.
91a, 91b, 77 Eng. Rep. 194, 195 (K.B. 1603).
While the Fourth Amendment “codif[ies]” that
maxim, see Stefan Ducich, These Walls Can Talk! Securing Digital Privacy in the Smart Home Under the
Fourth Amendment, 16 Duke L. & Tech. Rev. 278, 292
(2018), its text goes much further: it explicitly links the
home to “the right of the people to be secure,” see U.S.
Const. amend. IV. The Fourth Amendment’s broad
protections for personal security were in large part a
response to specific abuses the Framing generation
had suffered under British rule—namely, the use of
“general warrants” and “writs of assistance” that
lacked specificity as to the person and place to be
searched and were not based on any individualized
suspicion. See, e.g., United States v. Chadwick, 433
U.S. 1, 7-8 (1977) (“It cannot be doubted that the
Fourth Amendment’s commands grew in large measure out of the colonists’ experience with the writs of
assistance and their memories of the general warrants
formerly in use in England.”); 3 Joseph Story, Commentaries on the Constitution of the United States 748,
§ 1895 (1833) (stating that the Fourth Amendment’s
“introduction into the amendments was doubtless occasioned by the strong sensibility excited, both in England and America, upon the subject of general warrants almost upon the eve of the American Revolution”). Understanding the Fourth Amendment as a response to those abuses further elucidates how the
Amendment serves as a fundamental safeguard
against broad and unrestricted government searches
of private homes.
General warrants had long been used in England
to conduct unrestrained searches of people’s homes,
despite the common law’s recognition of the home’s
10
sanctity. Indeed, because of the common law’s special
protections for the home, the British government was
forced to enact statutes specifically abrogating those
safeguards to effectuate its regime of abuses that precipitated the Fourth Amendment. See Davies, supra,
at 646 (“[T]he absence of common-law justifications for
warrantless house searches, or of common-law authority for search warrants other than for stolen property,
explains why Parliament had to enact statutory search
authority for customs officers.”). For example, Parliament enacted the “Act of Frauds” in 1662, which empowered British officials to “enter, and go into any
house, shop, cellar, warehouse or room, or other place,
and in case of resistance, to break open doors, chests,
trunks and other package, there to seize, and from
thence to bring, any kind of goods or merchandize
whatsoever, prohibited and uncustomed.” See Act of
Frauds of 1662, 12 Car. 2, cl. 11, § V(2), reprinted in 8
The Statutes at Large of England and Great-Britain
78, 81 (1763). The Act of Frauds also authorized the
use of writs of assistance, “a particularly pernicious
tool,” which not only “allowed royal authorities to
search and seize as they saw fit,” David H. Gans, “We
Do Not Want to Be Hunted”: The Right to Be Secure
and Our Constitutional Story of Race and Policing, 11
Colum. J. Race & L. 6 (forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3622599,
but also permitted them to “commandeer anyone—
constables and ordinary citizens alike—to help in executing searches and seizures,” Hon. M. Blane Michael,
Madison Lecture, Reading the Fourth Amendment:
Guidance from the Mischief That Gave It Birth, 85
N.Y.U. L. Rev. 905, 907 (2010).
Colonial opposition to the use of general warrants
and writs of assistance was galvanized by a series of
events on both sides of the Atlantic in the years
11
leading up to the American Revolution. After King
George II died in late 1760, colonial customs officers
had to reapply for writs of assistance to be issued in
the name of the new king. See id. at 908. In Boston,
where the local economy depended in part on trade in
smuggled goods, a group of merchants objected to the
new king’s writs in Paxton’s Case. See id.2 Their attorney, James Otis, delivered a “declamation against
general warrants” widely considered “one of the most
celebrated orations in U.S. history.” Donahue, supra,
at 1249. Otis called the writ of assistance “the worst
instrument of arbitrary power.” 2 Works of John Adams, app. A at 523, 524 (Charles Francis Adams ed.,
1850). In his words, “every hous[e]holder in this province, will necessarily become less secure than he was
before this writ had any existence among us,” Josiah
Quincy Jr., Reports of Cases Argued and Adjudged in
the Superior Court of Judicature of the Province of
Massachusetts Bay, Between 1761 and 1772, app. I at
489 (1865), for the writ permits officers of the Crown
to invade private homes “when they please[, and] we
are commanded to permit their entry,” 2 Works of John
Adams, supra, at app. A at 524. Otis thus advanced
the bedrock principle “that a person’s home is especially private and must be protected from arbitrary
government intrusion.” Michael, supra, at 908-09.
Although Otis did not succeed in preventing the issuance of the writs he fought in Boston, English courts
promptly vindicated his arguments in a series of cases
arising out of the Crown’s use of general warrants to
silence John Wilkes and other political enemies of
King George III. These cases emphasized “the evil of
permitting unchecked discretion to search and seize,”
2 There is no formal case report, and Paxton’s Case is also
sometimes referred to as the Writs of Assistance Case or Petition
of Lechmere. See Davies, supra, at 561-62 n.20.
12
particularly within the most private spaces of the
home. Gans, supra, at 8; see Davies, supra, at 603
(“[L]egal criticism of the general warrant was especially strong when the security of a house was at issue.”). As one landmark decision put it, such “discretionary power . . . to search wherever [the officers’]
suspicions may chance to fall” “may affect the person
and property of every man in this kingdom, and is totally subversive of the liberty of the subject.” Wilkes v.
Wood, 19 How. St. Tr. 1153, 1167 (C.P. 1763). Under
such a regime, every Englishman could find that “[h]is
house is rifled; his most valuable secrets are taken out
of his possession, before the paper for which he is
charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing,
publishing, or being concerned in the paper.” Entick v.
Carrington, 19 How. St. Tr. 1029, 1064 (C.P. 1765).
These British cases were widely covered in American newspapers, and “the reaction of the colonial press
to that controversy was intense, prolonged, and overwhelmingly sympathetic to Wilkes.” Cuddihy, supra,
at 538. Indeed, “[t]he accounts of the trials exclaimed
the importance of the issue for English liberty and the
sanctity of the house while condemning general warrants as ‘illegal,’ ‘unconstitutional,’ ‘void,’ ‘oppressive,’
and ‘unwarrantable.’” Davies, supra, at 563 & n.22
(collecting commentaries from colonial-era newspapers).
After the War for Independence was won, the fight
to end the use of general warrants continued. While
general warrants initially remained common in the
new nation, Cuddihy, supra, at 602 (“General warrants proliferated and remained the keystone of American laws and practices regarding search and seizure
until at least 1782.”), the “specific warrant ultimately
won out,” id. By 1784, seven of the original thirteen
13
states plus Vermont had “formulated constitutions
with restrictions on search and seizure,” although the
precise formulations of those restrictions varied. Id.
at 603; see Maryland v. King, 569 U.S. 435, 466-67
(2013) (Scalia, J., dissenting) (quoting, for example,
the Virginia Declaration of Rights § 10, which declared
that “general warrants, whereby any officer or messenger may be commanded to search suspected places
without evidence of a fact committed,” or to search a
person “whose offence is not particularly described and
supported by evidence,” “are grievous and oppressive,
and ought not be granted”); Barry Friedman, Unwarranted: Policing Without Permission 135 (2017) (describing how “between the Revolution and 1791 the
states definitively turned against general warrants
and in favor of specific ones”).
When the Framers gathered to draft the new federal Constitution, delegates repeatedly raised concerns about potential abuses of governmental authority through the use of general warrants to ransack people’s homes. See Davies, supra, at 583. One Maryland
Anti-Federalist, writing under the name “A Farmer
and Planter,” protested that “excise-officers have
power to enter your houses at all times, by night or
day, and if you refuse them entrance, they can, under
pretence of searching for excisable goods, . . . break
open your doors, chests, trunks, desks, and boxes, and
rummage your houses from bottom to top.” Essay by a
Farmer and Planter, Md. Journal, Mar. 27, 1788, in 5
The Complete Anti-Federalist 74-75 (Herbert J. Storing ed., 1981). He noted the lack of any guarantee in
the federal Constitution that excise officers under the
new American government would behave any better.
See id. In Massachusetts, the sister of James Otis,
Mercy Otis Warren, similarly argued for a constitutional guarantee to prevent “any petty revenue officer”
14
from “enter[ing] our houses, search[ing], insult[ing],
and seiz[ing] at pleasure.” A Columbian Patriot, Observations on the New Constitution, and on the Federal
and State Conventions, reprinted in Pamphlets on the
Constitution of the United States 13 (Paul Leicester
Ford ed., 1888).
Several state ratifying conventions also requested
more explicit protection against unbridled search and
seizure. For example, Virginia’s proposed bill of rights
provided that “all general warrants to search suspected places, or to apprehend any suspected person,
without specially naming or describing the place or
person, are dangerous and ought not to be granted.”
Cuddihy, supra, at 684. New York, North Carolina,
and Rhode Island used nearly identical language. Id.
at 685.3 The arguments presented in favor of including
an express prohibition on general warrants in the federal Constitution received consistent and widespread
newspaper coverage, and “[t]he magnitude of that publicity indicated the emergence of a consensus for a comprehensive right against unreasonable search and seizure.” Id. at 686.
Two key themes emerged from these conventions
and debates: the idea that the fundamental right of
personal security is at its peak within the four walls of
3 Founding-era state constitutions used similar language. For
example, the Massachusetts Constitution of 1780, which served
as a model for the Fourth Amendment, see Thomas K. Clancy, The
Framers’ Intent: John Adams, His Era, and the Fourth Amendment, 86 Ind. L.J. 979, 982 (2011), barred all warrants as contrary
to the “right to be secure from all unreasonable searches and seizures . . . if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a
civil officer, to make search in suspected places, or to arrest one
or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of
search, arrest, or seizure.” Mass. Const. art. XIV (1780).
15
the home, and the strongly felt need for a limiting principle to regulate the discretion of officers engaged in
searches that encroach on that personal security.
These values were reflected in the first draft of the
Fourth Amendment proposed by James Madison,
which made clear the importance that he attached to
individualized and particularized suspicion as predicates for governmental searches: “The rights of the
people to be secured in their persons; their houses,
their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by
warrants issued without probable cause, supported by
oath or affirmation, or not particularly describing the
places to be searched, or the persons or things to be
seized.” 1 Annals of Cong. 452 (1789) (Joseph Gales
ed., 1834) (emphasis added). The language was subsequently modified in committee, but the explicit recognition of the sanctity of the home and the requirement
of specific warrants remained materially the same.
Cuddihy, supra, at 695-97.
The Fourth Amendment thus enshrines in our national charter the Framers’ opposition to searches, especially of the home, that were not predicated on a
warrant based on particularized suspicion of criminal
wrongdoing. As the next section demonstrates, warrantless search and seizure in people’s private homes
in the name of “community caretaking” fundamentally
violates those principles. “Community caretaking,” as
articulated by the court below, is a sweeping interest
not readily susceptible to any meaningful limiting
principle. Allowing the police to invade the sanctity of
the home—the apex of Fourth Amendment protection—on such an open-ended rationale severely threatens the personal security that the Fourth Amendment
guarantees.
16
II. THE EXTENSION OF THE “COMMUNITY
CARETAKING” EXCEPTION RECREATES
THOSE EVILS THAT THE FOURTH AMENDMENT WAS DESIGNED TO ERADICATE.
A. The Decision Below Ignores the Home’s
Unique Sanctity in the Eyes of the Framers.
As described above, the Fourth Amendment incorporated and extended the common law’s special solicitude for personal privacy and security within the
home. Guarding against the sort of unbridled discretion exercised by British officers under the writs-of-assistance regime, see, e.g., Carpenter v. United States,
138 S. Ct. 2206, 2213 (2018), the Fourth Amendment
requires a particularized warrant to search a person’s
home absent exigent circumstances, see, e.g., Payton,
445 U.S. at 586; Carloss, 818 F.3d at 1004-05 (Gorsuch, J., dissenting) (“The founders understood, too,
that a ‘search’ of a constitutionally protected space
generally qualifies as ‘unreasonable’ when undertaken
without a warrant, consent, or an emergency.”). Consistent with this history, this Court has repeatedly recognized that “the Fourth Amendment protects the individual’s privacy in a variety of settings[,] [but] [i]n
none is the zone of privacy more clearly defined than
when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its
roots in clear and specific constitutional terms.” Payton, 445 U.S. at 589.
Notwithstanding these precedents, the court below did not so much as mention this historical backdrop, much less justify its departure from the view of
the Framers—and this Court—that protection of “the
sanctity of the home” is embodied in the Fourth
Amendment, Collins, 138 S. Ct. at 1672 (quoting
17
Payton, 445 U.S. at 589). Instead, the court simply imported the standard for the “community caretaking”
exception from Cady v. Dombrowski, a case involving
the search of a vehicle, not a home. That approach was
fundamentally flawed.
Cady itself accounted for the elevated privacy and
security interests of the home reflected in the text and
history of the Fourth Amendment by taking great
pains to cabin its holding to the automobile context.
The Court began its analysis from the premise that
“[a]lthough vehicles are ‘effects’ within the meaning of
the Fourth Amendment,” there is an important “‘constitutional difference between houses and cars.’”
Cady, 413 U.S. at 439 (quoting Chambers, 399 U.S. at
52). The Court cataloged some of those differences,
noting the ambulatory nature of vehicles and “the fact
that extensive, and often noncriminal contact with automobiles will bring local officials in ‘plain view’ of evidence, fruits, or instrumentalities of a crime, or contraband.” Id. at 442; see id. at 439-40 (collecting cases
recognizing these distinctions). Ultimately, in announcing that the warrantless search of the disabled
vehicle in Cady was lawful, the Court explained that
its decision turned on its “recognition of the distinction
between motor vehicles and dwelling places” and specifically the fact that the vehicle searched “was neither
in the custody nor on the premises of its owner.” Id. at
447-48.
These distinctions matter. The repeated invocation in Founding-era debates of the analogy of the
home as a castle—a sturdy and guarded refuge where
any person may retreat from government abuse—does
not readily transfer to the motor vehicle context, at
least in most cases. Moreover, the historical sanctity
of the home embodied in the Fourth Amendment is
18
premised largely on the idea that security and privacy
interests are “most heightened” there, Ciraolo, 476
U.S. at 213, a principle “with roots deep in the common
law,” Kyllo v. United States, 533 U.S. 27, 34 (2001); see
Michael, supra, at 908-09 (describing the “overarching
theme[] that would become the bedrock of the movement against excessive search and seizure power: . . .
the ‘fundamental . . . Privilege of House’—the principle
that a person’s home is especially private” (footnote
omitted)).
The same might not be said of motor vehicles,
which, “unlike homes, are subjected to pervasive and
continuing governmental regulation and controls, including periodic inspection and licensing requirements,” Collins, 138 S. Ct. at 1670 (quoting South Dakota v. Opperman, 428 U.S. 364, 368 (1976)), and
where many items may be visible to any passerby, see
Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality
op.) (“A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view.”). Thus, as
this Court has explained, to allow a police officer “to
rely on the automobile exception to gain entry into a
house” would “unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house,” and
“transform what was meant to be an exception into a
tool with far broader application.” Collins, 138 S. Ct.
at 1672-73.
Of course, as this Court has recognized in recent
years, evolving technology and ways of life may alter
expectations of privacy. See, e.g., Riley v. California,
573 U.S. 373, 396-97 (2014) (noting that a modern-era
smartphone may store just as much private information as a Founding-era home). Cars, of course, did
19
not exist at the Founding, and today, certain cars may
have more privacy and dwelling-like features than in
previous years, making the car more akin to the
Founding-era conception of the home. However, at
most, such facts might suggest that this Court should
revisit Cady. It would defy logic for the inverse to be
true—i.e., that this Court should extend the “community caretaking” exception for vehicles to the home, a
space that always has been, and remains, the epitome
of American privacy and personal security. See id. (expanding protections historically afforded to the home
to the cell phone rather than the inverse); Kyllo, 533
U.S. at 34 (tracing the roots of the home’s privacy to
the common law, while noting its widespread acceptance in modern times).
Indeed, this Court has noted the fundamental
principle that no exception to the warrant requirement
may be expanded if doing so would “untether the rule
from the justifications underlying the . . . exception.”
Gant, 556 U.S. at 343. A rule becomes untethered
from its justifications when extending it to a new context “undervalues the privacy interests at stake” and
“creates a serious and recurring threat to the privacy
of countless individuals.” Id. at 344-45; see Collins,
138 S. Ct. at 1673 (refusing to extend the automobile
exception to the warrant requirement to permit a police officer to enter a home or its curtilage to search a
vehicle parked in the driveway); Riley, 573 U.S. at 386
(rejecting an extension of the rule governing “physical
objects” to “digital content” due to heightened “privacy
interests” in the latter). Such was the case in the court
below: by expanding an exception narrowly tailored to
the context of motor vehicles, the court below “undervalue[d] the privacy interests at stake” in the home,
20
the apex of the Fourth Amendment’s protection. This
Court should correct that error.
B. Extending the “Community Caretaking”
Exception Would Grant a Discretionary
Search and Seizure Power to Police That
the Fourth Amendment Was Designed to
Protect Against.
As detailed above, the Fourth Amendment was
largely a response to the particular ways in which the
British government had abused general warrants, but
its adoption also reflected a broader concern about the
intrusions into privacy that could result if the government enjoyed unlimited discretion to search and seize.
See Michael, supra, at 906 (noting the “broader purpose of the Amendment: to circumscribe government
discretion”); Cuddihy, supra, at 679 (noting an AntiFederalist “desire to divest the central government not
only of [the general warrant] but of all relatives of it
that jeopardized privacy”). Thus, as this Court has repeatedly recognized, a core concern of the Fourth
Amendment is ensuring that the government has individualized suspicion of wrongdoing before it intrudes
on a person’s privacy. See, e.g., Carpenter, 138 S. Ct.
at 2213 (stating that the “basic purpose” of the Fourth
Amendment “‘is to safeguard the privacy and security
of individuals against arbitrary invasions by governmental officials’” (quoting Camara v. Mun. Court of
City & Cty. of S.F., 387 U.S. 523, 528 (1967))); Chandler v. Miller, 520 U.S. 305, 308 (1997) (explaining that
the Fourth Amendment’s “restraint on government
conduct generally bars officials from undertaking a
search or seizure absent individualized suspicion”).
Allowing police officers to search a person’s home
whenever they claim to be involved in a “community
caretaking” function violates this fundamental Fourth
21
Amendment precept because it permits exactly the
sort of generalized search lacking in particularized
suspicion of criminal wrongdoing (and the concomitant
invasion of privacy) that the Fourth Amendment’s requirement for particularized warrants was designed to
prevent.
As an initial matter, “community caretaking” is a
broad and nebulous interest, particularly as defined by
the court below. In Cady, this Court defined “community caretaking functions” as those duties performed
by local police officers when they “investigate vehicle
accidents in which there is no claim of criminal liability.” 413 U.S. at 441. The court below significantly
expanded that concept of “community caretaking,” defining the term as applying to all situations in which
police perform “non-investigatory duties, . . . so long as
the procedure employed (and its implementation) is
reasonable.” Pet. App. 13a-14a (quoting United States
v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir.
1991)). Under this definition, police officers may
search people’s homes with impunity so long as they
can show, perhaps after the fact, that they were not
doing so as part of a criminal investigation.
The justification given by the court below for this
expansive definition is just as concerning as its potential effect on law enforcement practices. The court explained:
[A] police officer . . . must act as a master of all
emergencies, who is expected to aid those in
distress, combat actual hazards, prevent potential hazards from materializing, and provide an infinite variety of services to preserve
and protect community safety. At its core, the
community caretaking doctrine is designed to
give police elbow room to take appropriate
22
action when unforeseen circumstances present
some transient hazard that requires immediate attention.
Id. at 16a (internal citations and quotation marks
omitted).4 It is true that police today are called upon
to fulfill a wide range of duties that other professionals—such as social workers, therapists, doctors,
nurses, clergy, or teachers—might be better equipped
to perform. See Barry Friedman, Disaggregating the
Police Function, U. Pa. L. Rev. (forthcoming 2021),
NYU School of Law, Public Law Research Paper No.
20-3 at 11-14, https://ssrn.com/abstract=3564469. But
the breadth of ways in which police are involved in people’s daily lives cuts against, not in favor of, giving the
police greater latitude to search and seize without the
independent check of a warrant signed by a magistrate. The increased presence of the police in people’s
daily lives, combined with a broader “community caretaking” exception to the warrant requirement, would
result in a massive expansion of opportunities for the
police to search people’s homes without a warrant and
without any individualized suspicion of criminal
wrongdoing, in violation of the text and history of the
Fourth Amendment.
Moreover, such unbridled authority would have a
disproportionate effect on the poorest and most marginalized communities, where the problems that people face are most acute, yet access to professional resources are most scarce. See id. at 27 (“Cops respond
4 The court below specified that its use of the term “immediate” was not “imbued with any definite temporal dimensions” nor
“meant to suggest that the degree of immediacy typically required
under the exigent circumstances and emergency aid exceptions is
always required in the community caretaking context.” Pet. App.
21a.
23
frequently to calls from poorer neighborhoods—and as
a result from communities of color or marginalized
communities[—] . . . because the problems people face
in those communities are more acute, and because the
residents often lack the capacity or resources to deal
with the problems in other ways.”). Combined with the
racial bias that pervades American policing even when
police engage in those duties outside of criminal law
enforcement, see Monica C. Bell, Anti-Segregation Policing, 95 N.Y.U. L. Rev. 650, 687-729 (2020) (detailing
the ways in which American policing perpetuates racial bias and community segregation), the result would
be a regime in which the homes of low-income people
of color are particularly subject to the very privacy invasions that the Framers feared most. Significantly, a
recurring theme in the common law decisions that informed the drafting of the Fourth Amendment was
that any person, regardless of wealth or stature,
should be able to seek refuge from the government in
his or her home. See, e.g., Donahue, supra, at 1238
(quoting William Pitt, the first Earl of Chatham: “The
poorest man may, in his cottage, bid defiance to all the
forces of the Crown. It may be frail; its roof may shake;
the wind may blow through it; the storm may enter;
the rain may enter; but the King of England may not
enter; all his force dares not cross the threshold of the
ruined tenement.”).
Not only is the discretion granted to police under
the lower court’s expansion of the “community caretaking” exception broad and pervasive, it is also subject to
the same manipulation that colonists experienced under the general warrants and writs of assistance that
precipitated the Fourth Amendment. See McDonald,
335 U.S. at 456 (explaining that “the Constitution requires a magistrate to pass on the desires of the police
24
before the they violate the privacy of the home” because “[p]ower is a heady thing; and history shows that
the police acting on their own cannot be trusted”); cf.
Bovat, 141 S. Ct. at 22 (Gorsuch, J., respecting the denial of certiorari) (cataloging the ways in which police
officers have manipulated the “consent” exception to
the warrant requirement); Carloss, 818 F.3d at 1003
(Gorsuch, J., dissenting) (same). A chief complaint of
the colonists during that era was that British officers
could ransack their homes to search for evidence of a
crime before officers had probable cause to believe that
a crime had been committed, and then use evidence
found as part of that unbridled search to indict them.
See, e.g., Messerschmidt v. Millender, 565 U.S. 535,
560-61, 568 & n.8 (2012) (Sotomayor, J., dissenting)
(noting the historical Fourth Amendment principle
that “police cannot rationalize a search post hoc on the
basis of information they failed to set forth in their
warrant application to a neutral magistrate”); Donahue, supra, at 1212 (quoting Coke as rejecting the
authority of British officers to enter people’s homes
based upon “a bare surmise”).
The “community caretaking” exception creates
similarly perverse incentives: police may conduct unbridled searches of people’s homes for criminal evidence in the absence of probable cause when summoned to a home to address, for example, a mental
health crisis, and, if the search fails to turn up such
evidence or result in any charges, the police may invoke the “community caretaking” exception to escape
liability. Indeed, that is essentially what happened in
this very case: police lied to the home’s occupant and
claimed they had consent to seize property therein and
then attempted to justify their in-fact-unconsented-to
seizure as a form of “community caretaking” to avoid
25
being held liable for violating Petitioner’s fundamental
right to privacy guaranteed by the Fourth Amendment.
Finally, the “limitations” that the court below purported to impose on the “community caretaking” exception do not meaningfully limit police discretion,
contrary to the court’s gesticulations to that effect.
See, e.g., Pet. App. 19a (claiming that the expansion of
the “community caretaking” exception does not “give
police carte blanche to undertake any action bearing
some relation, no matter how tenuous, to preserving
individual or public safety”). The court below emphasized the need for “guardrails” to limit police discretion, but the only guardrails it set up were what it
deemed “sound police procedure.” Id. at 19a-20a. The
court rejected Petitioner’s argument that “sound police
procedure” must involve “the application of either established protocols or fixed criteria” or “the least intrusive means of fulfilling community caretaking responsibilities.” Id. at 20a (quoting Lockhart-Bembery v.
Sauro, 498 F.3d 69, 76 (1st Cir. 2007)). Instead, it declared that “sound police procedure” simply “encompasses police officers’ ‘reasonable choices’ among available options.” Id. (quoting Rodriguez-Morales, 929
F.2d at 787). Apparently, from the perspective of the
court below, “reasonable choices” are not subject to any
sort of concrete guidelines or limiting principles.
The court’s “reasonable choices” standard sounds
in the discretionary power that the Founders abhorred. “The Framers wrote the right to be secure
from unreasonable searches and seizures into the
Fourth Amendment precisely because [they] feared
giving the federal government excessive discretion to
search and seize.” Gans, supra, at 14. As one scholar
has explained, “eighteenth-century readers would
26
have regarded grants of broad and unfettered discretion as hallmarks of unreasonable searches and seizures.” David Gray, The Fourth Amendment in an Age
of Surveillance 162 (2017).
The cure for such unbridled discretion, of course,
was the specific warrant. In the eyes of the Founding
generation, “[s]pecific warrants were constitutionally
reasonable. Allowing the government broad discretionary powers to search and seize was not. This ensured the judicial check on search and seizure the
Framers demanded.” Gans, supra, at 15 (citing Gray,
supra, at 162-63). Consistent with these deep-seated
principles, this Court has mandated that “[w]hen an
officer undertakes to act as his own magistrate, he
ought to be in a position to justify it by pointing to
some real immediate and serious consequences if he
postponed action to get a warrant.” Welsh v. Wisconsin, 466 U.S. 740, 751 (1984) (quoting McDonald, 335
U.S. at 459-60 (Jackson, J., concurring)). A “reasonable choices” standard pays no mind to the degree of exigency involved—indeed, if “community caretaking”
applied only to exigent circumstances, Respondents
would not have conceded that there were no true exigencies present. See Pet. App. 11a-12a & n.5.
As Petitioner has put it, there is no “exigency-lite”
exception to the Fourth Amendment. Pet’r Br. 32; see
Kentucky v. King, 563 U.S. 452, 470 (2011) (“Any warrantless entry based on exigent circumstances must, of
course, be supported by a genuine exigency.”). If a true
emergency presents itself, police retain the authority
to invoke the well-established exigent circumstances
or emergency aid exceptions to the warrant requirement. And contrary to Respondents’ argument, refusing to extend the “community caretaking” exception
would not disempower police to diffuse tense and
27
troubling—but non-urgent—situations through the
power of search and seizure. It simply would require
them to do what the Fourth Amendment mandates:
“get a warrant,” Riley, 573 U.S. at 403.
CONCLUSION
For the foregoing reasons, the judgment of the
court below should be reversed.
Respectfully submitted,
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
DAVID H. GANS
BRIAN R. FRAZELLE
MIRIAM BECKER-COHEN
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW
Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amicus Curiae
January 15, 2021
* Counsel of Record
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.