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.

__________

On Writ of Certiorari to the United States Court of

Appeals for the First Circuit

__________

BRIEF OF PROJECT FOR PRIVACY &

SURVEILLANCE ACCOUNTABILITY

AND RESTORE THE FOURTH, INC.

AS AMICI CURIAE SUPPORTING PETITIONER

__________

MAHESHA P. SUBBARAMAN

SUBBARAMAN PLLC

222 S. 9th St., Suite 1600

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

HANNAH C. SMITH

KATHRYN E. TARBERT

SCOTT D. GOODWIN*

JOSHUA J. PRINCE

SCHAERR|JAFFE LLP

1717 K Street, NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

QUESTION PRESENTED

Whether the “community caretaking” exception to

the Fourth Amendment’s warrant requirement

extends to the home.

ii

TABLE OF CONTENTS

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

INTRODUCTION AND INTERESTS OF AMICI ...... 1

STATEMENT .............................................................. 3

SUMMARY OF ARGUMENT ..................................... 5

ARGUMENT ................................................................ 6

I. Because Warrantless Home Entry Was Permitted

At The Founding Only When Pursuing A Felon Or

Responding To A Risk Of Imminent Harm, The

Community-Caretaking Exception Should Not Be

Extended To Homes. .............................................. 6

A. Founding-era common law sets the standards

for resolving modern Fourth Amendment

questions. .......................................................... 6

B. At common law, officers could enter a home for

non-investigative purposes only to apprehend a

fleeing felon or if they witnessed an affray and

could prevent imminent harm. ......................... 8

II. If

The

Community-Caretaking

Exception

Extended To Homes, It Could Easily Be Used To

Justify

Extensive

Warrantless

Electronic

Surveillance. ......................................................... 13

A. Electronic surveillance involves private,

personal information implicating the same

Fourth Amendment concerns as home entry. 14

B. A community-caretaking exception that applies

to the home would quickly encompass

warrantless electronic surveillance, seriously

compromising Americans’ privacy. ................ 17

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

Cases

Boyd v. United States,

116 U.S. 616 (1886). ................................................. 7

Brinegar v. United States,

338 U.S. 160 (1949). ............................................... 20

Cady v. Dombrowski,

413 U.S. 433 (1973). ....................................... passim

Carpenter v. United States,

138 S. Ct. 2206 (2018). ......................................... 5, 7

Carroll v. United States,

267 U.S. 132 (1925). ................................................. 7

Chambers v. Maroney,

399 U.S. 42 (1970). ................................................... 1

Coolidge v. New Hampshire,

403 U.S. 443 (1971). ............................................... 19

Delafoile v. State,

24 A. 557 (N.J. Ct. Err. & App. 1892). .................. 12

Florida v. Jardines,

569 U.S. 1 (2013). ..................................................... 2

Ker v. California,

374 U.S. 23 (1963). ................................................. 11

McLennon v. Richardson,

81 Mass. 74 (1860). ................................................ 11

Riley v. California,

573 U.S. 373 (2014). ................................... 14, 15, 16

Semayne’s Case,

77 Eng. Rep. 194 (K.B. 1604)................................... 8

iv

United States v. Di Re,

332 U.S. 581 (1948). ................................................. 7

United States v. Heckenkamp,

482 F.3d 1142 (9th Cir. 2007). ............................... 18

United States v. Johnson,

410 F.3d 137 (4th Cir. 2005).. ................................ 19

Welsh v. Wisconsin,

466 U.S. 740 (1984). ................................................. 9

Constitutional Provisions

U.S. Const. amend. IV. ................................................ 6

Other Authorities

Richard Burn,

1 The Justice of the Peace, and Parish Officer (28th

ed. 1837). ................................................................ 11

Joseph Chitty,

1 A Practical Treatise on the Criminal Law

(1816). ....................................................................... 9

Joseph Chitty,

1 A Practical Treatise on the Criminal Law

(1836). ..................................................................... 10

Laura K. Donohue,

The Original Fourth Amendment, 83 U. Chi. L.

Rev. 1181 (2016). ................................................ 8, 11

Fed. R. Crim. P. 41(b)(6)............................................ 17

Matthew Hale,

2 Historia Placitorum Coronae (Rider 1800). ......... 8

Matthew Hale,

2 The History of the Pleas of the Crown (1847). .... 11

v

Sasha Harris-Lovett,

In survey, 88% of U.S. adults said they had sexted

and 96% of them endorsed it, L.A. Times (Aug. 8,

2015), https://www.latimes.com/science/science

now/la-sci-sn-sexting-sexual-satisfaction-20150807story.html. .............................................................. 15

William Hawkins,

1 A Treatise of the Pleas of the Crown (1716)........ 10

Elizabeth Kinsey Hawley,

Sexting Felonies: A Major Problem for Minors,

Communicating Psychological Science, https://

www.communicatingpsychologicalscience.com/blog/

sexting-felonies-a-major-problem-for-minors. ...... 15

Giles Jacobs,

1 The Law-Dictionary: Explaining the Rise,

Progress, and Present State of the English Law

(1811). ................................................................. 9, 10

Nelson Lasson,

The History & Development of the Fourth

Amendment (1937). .................................................. 8

Jonathan Mayer,

Government Hacking, 127 Yale L.J. 570 (2017). .. 19

Jeremy A. Moseley,

The Fourth Amendment and Remote Searches:

Balancing the Protection of “The People” with the

Remote Investigation of Internet Crimes, 19 Notre

Dame J.L. Ethics & Pub. Pol’y 355 (2005). ........... 18

vi

Amy Novotney,

A growing wave of online therapy, Monitor on

Psychology, Feb. 2017, at 48,

https://www.apa.org/monitor/2017/02/onlinetherapy. .................................................................. 15

George Orwell,

1984 (1949) ............................................................. 2

Pew Rsch. Ctr.,

Internet/Broadband Fact Sheet (June 12, 2019),

https://www.pewresearch.org/internet/factsheet/internet-broadband/. .................................... 16

Pew Rsch. Ctr.,

Mobile Fact Sheet (June 19, 2019),

https://www.pewresearch.org/internet/factsheet/mobile/. ......................................................... 16

PPSA and Restore the Fourth Br.,

Lange v. California (No. 20-18) (2020). ................... 9

Privacy International,

Government Hacking,

https://www.privacyinternational.org/learn/govern

ment-hacking. ........................................................ 18

Joseph Shaw,

1 The Practical Justice of the Peace

(4th ed. 1744).......................................................... 10

William Sheppard,

The Offices and Duties of Constables (1641). ..... 11

Joseph Story,

3 Commentaries on the Constitution of the United

States (1833). ........................................................ 6, 9

vii

Saunders Welch,

Observations on the Office of Constable (1754). . 11

INTRODUCTION AND INTERESTS OF AMICI 1

At common law, one of the “special protections”

afforded to the home was that, absent the

homeowner’s consent, the government was required to

obtain a warrant before entering in all but the most

extreme

circumstances.

Indeed,

some

early

commentators disputed whether even a warrant was

sufficient for entering a home.

More “lenient”

commentators made allowances for pursuing felons,

while others concluded that a warrant was still

required. But unless someone was threatened with

harm, Founding-era authorities did not allow

warrantless entry of the home for what is now called a

community-caretaking function.

To the contrary, community caretaking—duties

beyond law enforcement or keeping the peace—would

have been nonsensical to the Framers. And permitting

entry into the home for such functions would have

been even more outlandish. Hence, when this Court

first recognized the community-caretaking exception,

it rested the exception on the “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)). This Court should continue

adhering to that limitation and reject the First

Circuit’s boundless vision of the exception.

This is especially important because many of the

most intimate details of a person’s life historically

All parties have consented to the filing of this brief. No

counsel for a party authored it in whole or in part, nor did any

person or entity, other than amici and their counsel, make a

monetary contribution to fund its preparation or submission.

1

2

found in the home are today more accessible through

phones and other electronic devices.

While the Fourth Amendment protects electronic

devices and communications, this protection cannot be

said to exceed protection of the home itself—the “first

among equals.” Florida v. Jardines, 569 U.S. 1, 6

(2013). It logically follows that, if the government may

enter the home without a warrant in a communitycaretaking capacity, the government may treat

electronic sources of information the same way, posing

an even greater threat to privacy and the ultimate

integrity of the Fourth Amendment. Were that to

happen, the most sensitive aspects of a person’s life

would be routinely accessible to the government

whenever it seeks to perform a community-caretaking

function. The branding almost writes itself: “Big

Brother” may be “watching you,” but it’s for your own

good! 2

Proper resolution of this question is of paramount

importance to Amici. Amicus Project for Privacy &

Surveillance Accountability (PPSA) is a nonprofit,

nonpartisan organization concerned about a range of

privacy and surveillance issues—from the surveillance

of American citizens under the guise of foreignintelligence gathering, to the monitoring of domestic

activities under the guise of law enforcement.

Restore the Fourth, Inc. (“Restore the Fourth”) is a

national, non-partisan civil liberties organization

dedicated to the robust enforcement of the Fourth

Amendment. Restore the Fourth believes everyone is

2 George Orwell, 1984 (1949).

3

entitled to privacy in their persons, homes, papers, and

effects and that modern changes to technology,

governance, and law should foster—not hinder—the

protection of this right. Restore the Fourth oversees a

network of local chapters whose members include

lawyers, academics, advocates, and ordinary citizens.

Each chapter devises a variety of grassroots activities

designed to bolster political respect for the Fourth

Amendment. Restore the Fourth also files amicus

briefs in significant Fourth Amendment cases.

Amici believe that, if the Court extended the

community-caretaking exception to the home, that

extension would pose a tremendous risk of abuse in

other similarly sensitive areas like electronic devices.

To prevent such abuse, the Court should look to the

common law for guidance and, in so doing, reject the

First Circuit’s determination that the communitycaretaking exception reaches the home.

STATEMENT

Petitioner Edward Caniglia had no criminal record

or history of violence—only a disagreement with his

wife. D. Ct. Dkt. 44, ¶1; Pet.53a. When it escalated, he

took an unloaded gun, placed it on the table, and asked

his wife to take him “out of his misery.” Pet.53a. He

then left his home after his wife threatened to call the

police. Pet.53-54a. He eventually returned, and the

argument continued. Pet.54a. This time, Mrs. Caniglia

left the house and spent the night in a hotel. Ibid. The

following day, she could not reach Edward. Ibid.

Worried, she called the police and asked them to check

on him. Ibid.

4

The police called Edward and helped his wife

return home. Pet.55a. At the house, the police spoke

with Edward on the back deck, but he seemed fine and

expressly disavowed any intent to commit suicide.

Ibid. Yet the police did not believe him and summoned

a rescue lieutenant from the local Fire Department to

take him to the hospital. Pet.55a-56a. While Edward

was there—and unable to harm himself—the police

falsely told his wife that Edward had consented to

removal of his guns. Ms. Caniglia led the police to the

guns, which they seized. Pet.6a, 10a-11a, 56a-57a;

J.A.56-57. Several days later, the Caniglias made

unsuccessful attempts to get the guns back. Pet.57a.

Edward sued, arguing, among other things, that

the police’s entry into his home without a warrant

violated the Fourth Amendment. Pet.53a. In response,

the police asserted the community-caretaking

exception. Pet.59a. The district court agreed,

reasoning that “community caretaking” could be

“required not only in vehicles, but also in homes.”

Pet.60a n.3. The First Circuit affirmed, despite

acknowledging that this Court has never extended the

community-caretaking exception outside the motorvehicle context. Pet.12a-14a. It also noted the Court’s

emphasis on the constitutional difference between

searches of the home and searches of automobiles.

Pet.13a. But the panel found the “special role” that

“police officers play in our society” and the need for

police “elbow room” justified extending the

community-caretaking exception to the home.

Pet.16a.

5

SUMMARY OF ARGUMENT

I. The Court has long looked to common-law

sources to determine the reasonableness of a search or

a seizure. See Carpenter v. United States, 138 S. Ct.

2206, 2214 (2018). No Founding Era or common-law

authority of which Amici are aware would have

allowed the police to enter a person’s home without a

warrant in a community-caretaking capacity. To the

contrary, the home was considered so sacred that,

absent a warrant or consent, the government could

enter it only in the most extreme circumstances.

The Court’s longstanding practice of looking to the

common law for guidance on the original public

meaning of the Fourth Amendment thus counsels

rejection of the First Circuit’s view that the

community-caretaking exception reaches the home.

Indeed, this case is a far cry from Cady v. Dombrowski,

413 U.S. 433 (1973), which applied the exception to

automobiles. There, the Court upheld the postaccident search of a car trunk that was “neither in the

custody nor on the premises” of the car’s owner. Id. at

447-448. A search of a car trunk in such circumstances

is a far smaller invasion of privacy than searching a

person’s home.

II. Another powerful reason not to extend the

community-caretaking exception to the home is the

other contexts to which such an extension would also

logically apply—especially electronic devices. Such

devices hold vast amounts of personal information

that, historically, would only have been found in the

home. Extending the community-caretaking exception

to the place the Constitution protects most robustly

would logically allow courts to extend the exception to

6

other, less safeguarded areas, such as electronic

devices. But that would be devastating to the privacy

of all Americans.

ARGUMENT

I. Because Warrantless Home Entry Was Permitted At The Founding Only When Pursuing

A Felon Or Responding To A Risk Of

Imminent Harm, The Community-Caretaking

Exception Should Not Be Extended To

Homes.

The common law did not recognize a communitycaretaking exception to the warrant requirement.

Instead, a warrant was required to enter a person’s

home in all but the most extreme circumstances.

Because the common law has long guided this Court’s

understanding of the Fourth Amendment, the Court

should reject the extension of the communitycaretaking exception adopted below.

A. Founding-era common law sets the standards for resolving modern Fourth Amendment questions.

The Fourth Amendment protects “[t]he right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV (emphasis added).

Recognizing the Amendment to be an “affirmance” of

the common law on this point, 3 the Court respects

“historical understandings ‘of what was deemed an

unreasonable search and seizure when [the Fourth

Joseph Story, 3 Commentaries on the Constitution of the

United States 748 (1833).

3

7

Amendment] was adopted.’” Carpenter, 138 S. Ct. at

2214 (quoting Carroll v. United States, 267 U.S. 132,

149 (1925)).

In this regard, the common law furnishes two

“basic guideposts”: (1) the Fourth Amendment protects

the “privacies of life” from “arbitrary power,”138 S. Ct.

at 2214 (quoting Boyd v. United States, 116 U.S. 616,

630 (1886)); and (2) the “central aim of the Framers

was ‘to place obstacles in the way of a too permeating

police surveillance,’” ibid. (quoting United States v. Di

Re, 332 U.S. 581, 595 (1948)). This case implicates

both guideposts. As explained in Section II.A., at

common law the “privacies of life” were nowhere more

present than in the home. If the communitycaretaking exception then allows the police to enter

the home without a warrant, consent, or even the

existence of probable cause, one meaningful obstacle

to government overreach is forever lost.

Fortunately, as shown in Section I.B., there was at

common law no community-caretaking exception to

the warrant requirement, and warrantless entry into

the home was acceptable only in the most extreme

circumstances. The Court should therefore decline to

extend the community-caretaking exception to the

home.

8

B. At common law, officers could enter a

home for non-investigative purposes only

to apprehend a fleeing felon or if they witnessed an affray and could prevent

imminent harm.

At common law, officers had a duty “to keep the

peace.” 4 In performing this duty, however, the police

still had to get a warrant to enter a person’s home in

all but the most extreme cases. The need to perform a

community-caretaking function, as it is understood

today, would not have been such an extreme case. This

is apparent in both legal commentary and case law

during and after the Founding period.

1. English courts considered a man’s house his

“castle and fortress.” Semayne’s Case, 77 Eng. Rep.

194, 195 (K.B. 1604). As William Pitt famously put it:

“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.” 5

Because of this, at common law, outside of certain

rare “circumstances,” “the Crown could not intrude on

the sanctity of the home without a warrant.” 6 The

home was not to be “violated” unless “absolute

4 Matthew Hale, 2 Historia Placitorum Coronae 95 (1800).

5 Nelson Lasson, The History & Development of the Fourth

Amendment 49-50 (1937).

6 Laura K. Donohue, The Original Fourth Amendment, 83 U.

Chi. L. Rev. 1181, 1195-1196 (2016).

9

necessity” compelled this to “secure public benefit.” 7

Otherwise, in “all cases where the law” was “silent”

and “express principles d[id] not apply,” the “extreme

violence” of entering a home without permission was

forbidden. 8 The Fourth Amendment, “little more than

the affirmance” of the common law, 9 was meant by the

Framers to continue this tradition and prevent the

“evil” of warrantless “physical entry of the home.”

Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) (citations

omitted).

Aside from pursuing a felon or raising a hue and

cry, 10 there was at common law only one other scenario

that potentially allowed warrantless home entry:

interrupting an “affray” to prevent imminent harm. 11

The first American edition of Giles Jacobs’ law

dictionary describes an affray as “a skirmish or

fighting between two or more” in which there is “a

stroke given, or offered, or a weapon drawn.” 12 If a

7 Joseph Chitty, 1 A Practical Treatise on the Criminal Law

52 (1816).

8 Ibid.

Joseph Story, 3 Commentaries on the Constitution of the

United States 748 (1833).

9

10 The “hue and cry” exception was available only in a narrow

class of cases where the victim of a serious offense sought the

assistance from the Crown in apprehending a felon who had fled.

See PPSA and Restore the Fourth Br. 9-15, Lange v. California

(No. 20-18) (2020) (exploring the common-law exigentcircumstances exception and the hue and cry).

11 Id. at 13 n.27, 14 n.30.

12 Giles Jacobs, 1 The Law-Dictionary: Explaining the Rise,

Progress, and Present State of the English Law 65 (1811).

10

peace officer witnessed an affray, there was “no doubt”

that he could “do all such things” to end the

disturbance. 13 Contemporary common-law commentators like Joseph Shaw noted that, “[w]hen an affray is

in a House, the Constable, on his being refused

Entrance, may break it open to keep the Peace.” 14

The authority of the government to enter a house

without a warrant, however, was limited to cases in

which the officer actually heard or observed the

affray—requiring an immediate response to prevent

harm. As noted by Joseph Chitty, an officer could

“break open the doors” in order to “suppress the

tumult” if the affray is “within view or hearing of the

constable” or a “violent cry of murder” was heard

within a house. 15

Two respected common-law commentators,

William Hawkins and Matthew Hale, both wrote that

a warrant was required before entering a home if an

officer did not personally observe or hear the affray.

Hawkins explained that “a Constable hath no power to

arrest a Man for an Affray done out of his own View”

without a warrant, for “it is the proper business of a

Constable to preserve the Peace, not punish the

Breach of it.” 16 Hale agreed: If the affray was past,

13 Ibid.

14 Joseph Shaw, 1 The Practical Justice of the Peace 569 (4th

ed. 1744).

15 Joseph Chitty, 1 A Practical Treatise on the Criminal Law

56 (1836) (emphasis added).

16 William Hawkins, 1 A Treatise of the Pleas of the Crown 137

(1716).

11

“and no danger of death” remained, a constable had to

obtain a warrant before entering the home. 17

These sources confirm that the government was

permitted to intrude on the home only in a narrow set

of extreme circumstances, such as if an officer

witnessed or heard an ongoing affray or was otherwise

trying to prevent imminent harm. Outside such timesensitive cases, however, a warrant was required.

2. “The command of the Fourth Amendment”

embodies fundamental “lessons” about the “violent,

obnoxious and dangerous” character of “breaking an

outer door.” Ker v. California, 374 U.S. 23, 54 (1963)

(plurality opinion) (citing Richard Burn, 1 The Justice

of the Peace, and Parish Officer 275-276 (28th ed.

1837)). Carrying these lessons forward, early

American cases allowed warrantless entry into the

home only in the most urgent circumstances.

For example, in McLennon v. Richardson the

Massachusetts Supreme Judicial Court held that the

“authority of a constable to break open doors and

arrest without a warrant” was “confined to cases

where treason or felony has been committed, or there

is an affray or a breach of the peace in his presence.”

81 Mass. 74, 77 (1860). Breaches-of-the-peace at

common law generally entailed violent crimes that

involved “assaulting, striking, or fighting.” 18

17 Matthew Hale, 2 The History of the Pleas of the Crown 89

(1847).

18 Donohue, The Original Fourth Amendment, supra n.6 at

1226 (quoting Saunders Welch, Observations on the Office of

Constable 6 (printed for A. Millar 1754)); see also id. at 1226 n.

262 (quoting William Sheppard, The Offices and Duties of

12

This common-law rule did not change as the

country became more established. For example, the

New Jersey Court of Errors and Appeals allowed an

officer to enter a home without a warrant to stop an

affray short of a felony only if the affray was

committed in the officer’s presence: “[i]f the affray be

in a house, the constable may break open the doors to

preserve the peace; and if the affrayers fly to the

house, and he freshly follow, he may break open the

doors to take them without warrant. But he cannot,

without a warrant, arrest a man for an affray or breach

of the peace out of his view, unless it embrace a felony.”

Delafoile v. State, 24 A. 557, 558 (N.J. Ct. Err. & App.

1892) (citations omitted).

3. No common-law authority of which Amici are

aware would have allowed government officers to

enter a person’s home for community caretaking as

that term is used today. Instead, to the extent the

exception has any history, it seems to extend no

further back than 1973. See Cady v. Dombrowski, 413

U.S. 433, 453 (1973) (Brennan, J., dissenting) (arguing

that the community-caretaking exception “finds no

support in any of the established [Fourth Amendment]

exceptions” and that the police should have obtained a

warrant because they knew “what they were looking

for and had ample opportunity to obtain” one).

Constables 34 (Hodgkinsonne 1641)) (“[A] breach of the peace was

understood as ‘not onely that fighting, which wee commonly call

the Breach of the Peace, but also that every Murder, Rape,

Manslaughter, and felonie whatsoever, and every Affraying, or

putting in feare of the Kings people.’”) (spelling in original).

13

But even the community-caretaking doctrine that

originated in Cady bears little resemblance to the

exception that the First Circuit applied here. Cady

itself recognized the profound “constitutional

difference between houses and cars,” and thus limited

the exception to a very narrow set of vehicle searches.

413 U.S. at 439, 446-448. And in Cady, the car at issue

was “neither in the custody nor on the premises” of the

owner when it was searched. Id. at 447-448. Here, by

contrast, Ms. Caniglia was present when the police

entered her home, and the police falsely told her that

her husband had consented to having his guns seized,

causing her to lead the officers directly to them. Pet.6a,

10a-11a, 56a-57a; J.A.56-57. The First Circuit’s

decision to apply the community-caretaking exception

to the home in these circumstances thus produces a

doctrine far removed even from Cady.

Therefore, because extending the exception to the

home would depart from common-law principles and

from this Court’s own practice of limiting the exception

to vehicles, the Court should decline to extend the

exception further.

II. If The Community-Caretaking Exception

Extended To Homes, It Could Easily Be Used

To Justify Extensive Warrantless Electronic

Surveillance.

While the common law’s lack of any communitycaretaking exception is sufficient reason to reverse

here, it is not the only reason. Because jurists applying

this case in the future are unlikely to afford electronic

devices greater protection than the home, the courts

will likely and logically extend the communitycaretaking exception to searches of cell phones and

14

other electronic devices if it is extended to the home

here. The need to protect Americans’ privacy from

unlimited electronic surveillance is another powerful

reason to reject the rule applied below.

A. Electronic surveillance involves private,

personal information implicating the same

Fourth Amendment concerns as home

entry.

Electronic devices today hold many of the

“privacies of life” that were once found only in the

home. Riley v. California, 573 U.S. 373, 403 (2014).

“[B]ecause of the role that these devices have come to

play in contemporary life, searching their contents

implicates very sensitive privacy interests.” Id. at 408

(Alito, J., concurring in part and in the judgment).

Indeed, “[m]odern cell phones, as a category, implicate

privacy concerns far beyond those implicated by the

search of a cigarette pack, a wallet, or a purse.” Id. at

393 (majority opinion). And they certainly implicate

privacy concerns beyond those implicated by a search

of a car.

The Court has thus correctly emphasized that “a

cell phone search would typically expose to the

government far more than the most exhaustive search

of a house[.]” Id. at 396 (emphasis in original). Indeed,

“[a] phone not only contains in digital form many

sensitive records previously found in the home; it also

contains a broad array of private information never

found in a home in any form.” Ibid.

Beyond records and information, even the choice of

applications that a person installs on her phone can

reveal significant private details. There are “apps for

15

alcohol, drug, and gambling addictions; apps for

sharing prayer requests; apps for tracking pregnancy

symptoms; apps for planning your budget; apps for

improving your romantic life.” Ibid. And many

Americans use their electronic devices for even the

most sensitive of activities, such as mental-health

counseling, 19 or sending sexually explicit images of

themselves. 20 Cell phones also track their owner’s

location, 21 and location data can indicate where a

person worships, where she banks, where she studies,

or where she spends her free time.

The all-encompassing information stored on

phones and other devices contain “several interrelated

consequences for privacy.” Riley, 573 U.S. at 394.

Foremost among them is the likelihood that “distinct

types of information” on phones could “reveal much

more in combination than any isolated record” and

could “date back to the purchase of the phone.” Ibid.

Also, there is a “pervasiveness” that “characterizes cell

19 Amy Novotney, A growing wave of online therapy, Monitor

on

Psychology,

Feb.

2017,

at

https://www.apa.org/monitor/2017/02/online-therapy.

48,

Elizabeth Kinsey Hawley, Sexting Felonies: A Major

Problem for Minors, Communicating Psychological Science,

https://www.communicatingpsychologicalscience.com/blog/sextin

g-felonies-a-major-problem-for-minors; Sasha Harris-Lovett, In

survey, 88% of U.S. adults said they had sexted and 96% of them

endorsed

it,

L.A.

Times

(Aug.

8,

2015),

https://www.latimes.com/science/sciencenow/la-sci-sn-sextingsexual-satisfaction-20150807-story.html.

20

21 Novotney, supra n.19 (“[S]ome [counseling] apps do report

that they use a member’s IP address to determine their exact

location and send police if a therapist is concerned about a

member’s safety[.]”).

16

phones but not physical records. Prior to the digital

age, people did not typically carry a cache of sensitive

personal information with them as they went about

their day.” Id. at 395.

Indeed, today electronic devices—with all of their

sensitive information—are everywhere. As of 2019,

“[t]he vast majority of Americans—96%—now own a

cellphone of some kind,” with 81% of Americans

owning a smartphone. 22 Americans also “own a range

of other information devices”: Nearly 75% of U.S.

adults now own desktop or laptop computers and 50%

own tablet computers and/or e-reader devices. 23 And

Americans are increasingly online, with 90% of

Americans using the internet, likely with some

regularity. 24 With the overwhelming majority of

Americans connected to an electronic device today, and

the vast majority of those electronic devices being

connected to the internet, the risk of out-of-control

government surveillance is ever-present.

Because of the ubiquity of electronic devices and

the incredible amount of private, personal information

they contain, searches of a person’s personal electronic

devices implicate many of the same privacy concerns

as searches of a home. Simply put, searching a person’s

Pew Rsch. Ctr., Mobile Fact Sheet (June 19, 2019),

https://www.pewresearch.org/internet/fact-sheet/mobile/.

22

23 Ibid.

24 Pew Rsch. Ctr., Internet/Broadband Fact Sheet (June 12,

2019), https://www.pewresearch.org/internet/fact-sheet/internetbroadband/.

17

electronics today is even more intrusive than

searching her home.

B. A community-caretaking exception that

applies to the home would quickly encompass warrantless electronic surveillance,

seriously compromising Americans’ privacy.

If the Court extended the community-caretaking

exception to the home, the same logic allowing that

extension would likewise allow law enforcement to

search electronic devices. Such an extension would

allow warrantless surveillance even if “there is no

claim of criminal liability” and the search is “divorced

from the detection, investigation, or acquisition of

evidence relating to the violation of a criminal

statute.” Cady, 413 U.S. at 441. But this would end

any theoretical limit on the government’s authority to

surveil these devices at will. After all, electronic

devices can reveal a host of caretaking-relevant

information about a person’s mental, emotional, and

physical well-being. Officers would thus be free to

argue that the Fourth Amendment excuses mass

surveillance to identify and assist all those in need of

caretaking. This could spell the end of privacy for most

Americans.

1. Unlike home searches, the government can

perform electronic searches remotely. See Fed. R.

Crim. P. 41(b)(6) (allowing judges to “issue a warrant

to use remote access to search electronic storage media

and to seize or copy electronically stored

information.”). Advances in technology increase the

potential for government abuse. A “government agent

in Virginia” may “hack into a website located on a

18

server in Kansas, or even Russia.” 25 That same agent

could also remotely “verify that the same computer

that had been connected at [one] IP address was now

connected at” another. United States v. Heckenkamp,

482 F.3d 1142, 1148 (9th Cir. 2007). And once the

government has access to a device, it may access

everything stored on it.

Worse still, the government can acquire such

access through garden-variety, remote hacking, which

“has the potential to be far more intrusive than any

other surveillance technique.” 26 Through hacking, the

government can “conduct novel forms of real-time

surveillance, by covertly turning on a device’s

microphone, camera, or GPS-based locator technology,

or by capturing continuous screenshots or seeing

anything input into and output from the device.” 27

And if the government can hack a device for one

purpose, then it has the wherewithal to hack it for any

other, and the potential for such surveillance even

without an emergency is limitless. Whether to learn

the “suspect’s identity,” to “obtain a suspect’s [past]

communications,”

or

to

“intercept

future

conversations,” “[a]s security and privacy technology

25 Jeremy A. Moseley, The Fourth Amendment and Remote

Searches: Balancing the Protection of “The People” with the

Remote Investigation of Internet Crimes, 19 Notre Dame J.L.

Ethics & Pub. Pol’y 355, 356 (2005).

26

Privacy

International,

Government

Hacking,

https://www.privacyinternational.org/learn/government-hacking.

27 Ibid.

19

becomes more prevalent, law enforcement hacking will

only become more commonplace.” 28

Imagine, for example, that the police believed a

person posed a risk to himself or others. Under a

broadened view of the community-caretaking

exception, the police would be free to conduct a

warrantless search of the person’s smartphone to

evaluate the risk. The police would then be free to

browse through the person’s search history, text

messages, call logs, and photos—all in the name of

caretaking. And during that search, the police might

just also stumble across evidence of unrelated illegal

activity.

That evidence could then be freely seized and used

against the person. After all, another “exception to the

warrant requirement is the seizure of evidence in

‘plain view.’” Cady, 413 U.S. at 452 (Brennan, J.,

dissenting). This doctrine applies when an officer with

“prior justification for an intrusion”—e.g., to perform a

community-caretaking

function—“inadvertently

[comes] across a piece of evidence incriminating” a

person. Coolidge v. New Hampshire, 403 U.S. 443, 466

(1971). If the police do not violate the Fourth

Amendment when they search a home or a phone

while acting as community caretakers, then anything

illegal they see in that capacity may be used against a

person in a criminal prosecution. See, e.g., United

States v. Johnson, 410 F.3d 137, 146 (4th Cir. 2005)

(officer’s “role changed from community caretaker to

28 Jonathan Mayer, Government Hacking, 127 Yale L.J. 570,

577-578 (2017).

20

investigator of illegal activity” when he discovered a

gun during a caretaker search).

Seemingly benevolent searches would then become

an engine for criminal prosecutions even though no

warrant was ever obtained, and no probable cause ever

existed. The community-caretaking exception would

thus become a license for the government to discover

criminal activity that—in all other circumstances—

would only have been discoverable through a warrant

supported by probable cause.

2. Of course, if encryption backdoors were only

exploited in searches backed by a warrant, that would

limit the government’s intrusion into the privacy

protected by the Fourth Amendment. But the

government is not likely to voluntarily limit itself to

those circumstances. To the contrary, as Justice

Jackson famously put it, the government will likely

“push to the limit” “any privilege of search and seizure

without warrant which [the Court] sustain[s].”

Brinegar v. United States, 338 U.S. 160, 182 (1949)

(Jackson, J., dissenting). 29

Expanding any exception to the warrant

requirement, then, poses a risk of further government

abuses. Accordingly, the Court should reject any

invitation to weaken the Fourth Amendment’s

protections by further expanding the communitycaretaking exception. The Court should reverse the

First Circuit’s contrary holding.

29 Because Justice Jackson had served as Solicitor General

prior to writing his Brinegar dissent, one wonders if he was

speaking from personal experience.

21

CONCLUSION

The common law did not recognize a communitycaretaking exception that would have allowed the

police to enter a person’s home without a warrant.

Accordingly, the Court should reject any invitation to

extend the doctrine to the home. Instead, the Court

should continue to ensure that the “privacies of life”

that define every person’s home—and their electronic

devices—are fully protected by the Fourth

Amendment.

Respectfully submitted.

MAHESHA P. SUBBARAMAN

SUBBARAMAN PLLC

222 S. 9th St., Suite 1600

Minneapolis, MN 55402

(612) 315-9210

mps@subblaw.com

January 15, 2021

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

HANNAH C. SMITH

KATHRYN E. TARBERT

SCOTT D. GOODWIN*

JOSHUA J. PRINCE

SCHAERR|JAFFE LLP

1717 K Street, NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

* Practicing under D.C. Rule 49(c)(8).