TBJ DECEMBER 2021
Home Is Where We Unite
A look at a classic Fourth Amendment issue.
Written by Leo Yu
In the 2020-2021 term, the U.S. Supreme Court issued two unanimous opinions regarding a classic Fourth Amendment issue—warrantless entry of a home. The court ruled against the government in both of the cases and declined to recognize more exceptions that may justify warrantless home entry. The two cases here once again reaffirmed the court’s historical prudent position toward the Fourth Amendment’s application to a home.
Caniglia v. Strom is a case regarding law enforcement’s authority in “community caretaking” tasks.1 Edward Caniglia’s wife asked the police to conduct a welfare check on her husband. The police arrived at Caniglia’s house with an ambulance and found Caniglia on the porch, alive. Caniglia denied that he was suicidal but admitted that he had a heated argument with his wife, during which he asked his wife to shoot him. He agreed to leave the house to receive a psychiatric evaluation, on the condition that the police would not confiscate his guns. However, after Caniglia left with the ambulance, the police went into the house and took two guns.
Caniglia sued, arguing that the state violated his Fourth Amendment right when the police entered his home and seized his firearms without a warrant. The district court ruled against Caniglia, and the U.S. Court of Appeals for the 1st Circuit affirmed. The 1st Circuit held that in Cady v. Dombrowski, the Supreme Court found that a warrantless search during a community welfare check did not violate the Fourth Amendment.2
In a unanimous opinion, the Supreme Court reversed the 1st Circuit’s ruling. Justice Clarence Thomas wrote for the court and declined to extend the Cady exception to this case. Thomas found that the Cady court did not create a “freestanding” exception to allow the police to enter a person’s home without a warrant for a welfare check. First, Cady dealt with a warrantless search of an impounded vehicle. Although the court created an exception to allow the police to search the vehicle without a warrant, the court specifically recognized that a vehicle should not be treated equally with a person’s home, as the Constitution provides a higher level of protection to the latter.3 Second, the court in Cady simply mentioned “community caretaking” in passing and recognized that the police regularly conducted such tasks.4 Nowhere in the Cady ruling did the court indicate that it intended to allow the police to enter a citizen’s home without a warrant simply because the police were conducting a community caretaking task.5
In Lange v. California, the court was presented with a more complicated question: Does a hot pursuit of a misdemeanant constitute an exigent circumstance that justifies the police’s warrantless entry of a home?6
In this case, Arthur Lange gained the attention of a California Highway Patrol officer by playing loud music and repeatedly honking his horn without a reason. The patrol officer started to follow Lange, and after several blocks, the officer decided to activate his overhead lights to pull over Lange. It turned out that Lange was only about a hundred feet away from his house at that point. Instead of stopping his car, Lange drove right into his attached garage. The patrol officer went into the garage and questioned Lange. Observing signs of intoxication, the patrol officer arrested Lange.
Lange was indeed drunk, and was charged with state misdemeanors. Lange sought to suppress all evidence obtained in his garage, arguing that the warrantless search violated his Fourth Amendment right. The state trial court denied Lange’s suppression motion. The California Court of Appeals affirmed and ruled that as long as the police have initiated an arrest in the public, a “hot pursuit” is established and a criminal suspect, including a misdemeanant, cannot defeat the arrest by retreating to his home. The California Supreme Court declined to grant certiorari.
The Supreme Court, in another unanimous ruling, reversed the state court’s ruling. Justice Elena Kagan wrote for the court. Kagan recognized that this case presented a circuit split. Several jurisdictions, such as California, adopt a “categorical rule,” which always permits an officer to enter a home without a warrant in pursuit of a fleeing misdemeanant. Other jurisdictions follow a “case by case” approach, which requires the showing of exigency in each instance when an officer attempts to enter a home warrantlessly.7 The court rejected the categorical rule and held that the Fourth Amendment requires a case-by-case analysis.
Kagan found the court has shown a consistent commitment to protecting a person’s home from unreasonable search, which is the “very core” of the Fourth Amendment.8 Indeed, the court has recognized several exigent circumstances that justify warrantless entry, such as rendering assistance to a person being injured, preventing the destruction of evidence, or stopping a suspect from fleeing. However, these exceptions do not in any way overshadow the court’s general jurisprudence that the protection of a person’s home is a matter of constitutional interest.9
Kagan held that the court did not create a categorical rule for misdemeanors in United States v. Santana, in which the court found that the police’s warrantless home entry during a pursuit of a fleeing felon did not violate the Fourth Amendment.10 Kagan did not further clarify the court’s position in Santana but concluded that even assuming Santana created a categorical rule, that rule would only apply to the hot pursuit of fleeing felons and the court never indicated that such rule would apply to the pursuit of fleeing misdemeanants.11
Kagan observed that misdemeanors “run the gamut of seriousness”: the majority of them are minor offenses, but some of them involve violence.12 Applying a categorical rule would put all misdemeanants, whether they are violent or not, into the same category.13 This approach runs afoul of Welsh v. Wisconsin,14 in which the court held that when a minor offense is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry.15 Thus, a case-by-case approach is the most suitable approach in dealing with fleeing misdemeanants: a police officer may enter a home warrantlessly, but he or she can only do so when the totality of the circumstances—such as imminent injury, destruction of evidence, or escape from home—present an exigency.16
These two cases reaffirmed the court’s strong consensus against unreasonable governmental intrusion of a person’s home. People’s right to retreat into their homes stands at the core of the Fourth Amendment. This Fourth Amendment right has a strong common law foundation. Thus, the court “[is] not eager—more the reverse—to print a new permission slip for entering the home without a warrant.”17 The court’s interpretation of its own precedents—Cady and Santana—further demonstrates the court does not feel compelled to recognize more exceptions to justify warrantless entries. On the contrary, Thomas and Kagan both warned that the court said what needs to be said in its Fourth Amendment cases regarding warrantless entry; therefore, any broad reading of those cases will receive careful and rigorous scrutiny from the court.
However, there is one issue the court did not resolve: whether a hot pursuit of a fleeing felon categorically constitutes an exigent circumstance that may justify warrantless home entry. In his concurring opinion, Justice Brett M. Kavanaugh argued that the court in Santana has established that the hot pursuit of a felon itself constitutes an exigent circumstance, and Chief Justice John G. Roberts Jr. shared similar arguments in his concurrence.18 Nevertheless, this argument did not gain the majority support of the court, and Kagan pushed back this line of argument by simply stating that “we see no need to consider [the] counterargument that Santana did not establish any categorical rule—even one for fleeing felons.”19 Thus, it is still unclear as to whether a hot pursuit of a felon constitutes a per se exigent circumstance.
The two cases here were the first several criminal procedure cases presented to the newest justice on the bench, Justice Amy Coney Barrett. Barrett participated in both the oral argument and opinion consideration phases. She joined the authoring justices’ opinions and did not write or join any other conservative justices’ concurrences. Her silence might indicate that as a former clerk to the late Justice Antonin Scalia, she shares Scalia’s Fourth Amendment jurisprudence, which heavily relies on the Fourth Amendment’s well-documented common law foundation that can be traced back to the founding era. Such an approach often leads to pro-defendant rulings. However, it is also possible that her silence is just a result of workload management. As the newest justice who took the bench shortly before the oral argument, it is not practical for her or her clerks to gather all the information and conduct comprehensive research to address a complex constitutional issue in such a short period of time.
With all the changes to the Supreme Court’s components, it is quite rare to see multiple unanimous rulings on a single constitutional issue from the same term. Despite ideological differences, all justices agree that the protection of the sanctity of a home is unequivocally the most vital value the Founding Fathers intended to vest into the Fourth Amendment. Looking at the Constitution as a whole, the Fourth Amendment’s application to a home is perhaps one of the few constitutional issues that can unite the court.TBJ
is a clinical professor of legal research, writing, and advocacy at SMU Dedman School of Law. He teaches civil rights litigation, legal writing, and perspectives of the American legal system. Yu serves as a director of the Texas Young Lawyers Association.