Justice Gorsuch Reminds: The Fourth Amendment Isn’t Dead Yet

from the uncommon-precedent dept

The Supreme Court released a few decisions this week. All of them are important for the parties involved, and ultimately for everyone, but not to the immediate degree that some of the other pending cases are (like the tariffs case). But one of the decisions is worth calling out, not for the decision itself, but for what Justice Gorsuch said in his concurrence and how it bears on electronic surveillance and the crisis we find ourselves in where the Fourth Amendment (along with the rest of the Constitution) is providing none of its promised protection.

The decision at issue is Case v. Montana where a unanimous Court agreed that the Fourth Amendment did not actually apply.  The justices agreed that earlier precedent still held: it will not violate the Fourth Amendment for police officers to enter a home without a warrant if they have an “objectively reasonable basis for believing” that someone inside needs emergency assistance. It is a rule that on its face does not necessarily look unreasonable.  The problem, though, is that, over time, courts have found more and more rules describing circumstances when it is ok to supersede the Fourth Amendment’s own clear rule that the people should be “secure in their persons, houses, papers, and effects” from warrantless searches and seizures. As a result, over time the public has gotten less and less secure as fewer and fewer warrants have been needed by the government.

In his concurrence Justice Gorsuch agreed with the specific holding—that this sort of emergency rule exists, even in the shadow of the Fourth Amendment, and that it applied in this case—but he took some time ruminate on why it is a reasonable exception to the Fourth Amendment’s usual warrant requirement.

Does the Fourth Amendment tolerate this limited emergency aid exception to the warrant requirement just because five or more Justices of this Court happen to believe that such entries are “reasonable”? Or is this exception more directly “tied to the law”? Carpenter v. United States, 585 U. S. 296, 397 (2018) (GORSUCH , J., dissenting). The answer, I believe, is the latter.

The reason it is “tied to the law,” he explains, is because such an “emergency” rule would have been recognized in common law, and that rule would forgive anyone’s trespass for the purpose of giving aid, including the police’s:

Today’s decision echoes both the common-law emergency aid rule and its limitations. It does so, to be sure, in the context of a law enforcement officer, not a private citizen, who sought to enter another’s home. But on this point as well the common law has spoken, long providing that officers generally enjoy the same legal privileges as private citizens. See, e.g., Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (C. P. 1765); 1 J. Chitty, Criminal Law 36 (1819); 2 M. Hale, Historia Placitorum Coronae 91 (1736). And, reflecting the common law here again, this Court has held that the Fourth Amendment usually permits officers lacking a valid warrant to “take actions that any private citizen might do without fear of liability.” Caniglia v. Strom, 593 U. S. 194, 198 (2021) (internal quotation marks omitted).

The emergency of course does not give them carte blanche, however.  Police excused from needing a warrant to respond to an emergency “normally may do ‘no more’ than that.”

Contrary to Mr. Case’s argument, King v. Coate, Lofft. 73, 98 Eng. Rep. 539 (K. B. 1772), does not establish that the common law demanded an exacting showing of actual necessity to defeat a claim for trespass. True, Lord Mansfield explained that any necessity defense in that case would need to “stand the strictest test,” with the “necessity manifestly proved.” Id., at 75, 98 Eng. Rep., at 540. But Coate involved an effort to involuntarily “confin[e] a person in a madhouse” for two months, not a claim over a home entry. Id., at 74, 98 Eng. Rep., at 539. And it is hardly surprising that the common law would demand a good deal more to justify a serious deprivation of liberty than to excuse an invasion of property rights aimed at protecting human safety.

But what is most interesting about Gorsuch’s analysis is not how he applied the common law rule here but his larger argument that it is common law rules that should be applied to the Fourth Amendment analysis generally and not the line of precedent that has resulted since the Court decided Katz v. US in 1967.  Those subsequent decisions have instead emphasized that whether there was a “reasonable expectation of privacy” is key to determining whether the Fourth Amendment has been violated. So while Katz itself had the immediate effect of expanding the protective reach of the Fourth Amendment, as Gorsuch had earlier complained in his dissent in the Carpenter v. US case, it set subsequent precedent down a path that largely narrowed it.  As he wrote then:

Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence. Smith and Miller are only two examples; there are many others. Take Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), which says that a police helicopter hovering 400 feet above a person’s property invades no reasonable expectation of privacy. Try that one out on your neighbors. Or California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), which holds that a person has no reasonable expectation of privacy in the garbage he puts out for collection. In that case, the Court said that the homeowners forfeited their privacy interests because “[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” Id., at 40, 108 S.Ct. 1625 (footnotes omitted). But the habits of raccoons don’t prove much about the habits of the country. I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager. Making the decision all the stranger, California state law expressly protected a homeowner’s property rights in discarded trash. Id., at 43, 108 S.Ct. 1625. Yet rather than defer to that as evidence of the people’s habits and reasonable expectations of privacy, the Court substituted its own curious judgment.

Even in a case like Carpenter, which the government basically lost, Gorsuch still had dissented from the decision apparently because he felt the rationale was so poisoned by the post-Katz reasoning that had subsequently emerged in so many cases since. As he wrote then:

In the end, what do Smith and Miller add up to? A doubtful application of Katz that lets the government search almost whatever it wants whenever it wants. The Sixth Circuit had to follow that rule and faithfully did just that, but it’s not clear why we should.

One unfortunate way that Fourth Amendment protection has been narrowed since Katz is in the context of electronic surveillance. In case after case it has been an uphill battle to challenge programs that give the government so much information about people’s lives. Indeed, as Gorsuch had earlier worried in Carpenter, as long as the rule excusing an intrusion into what the Fourth Amendment would protect hinges on whether it invades a “reasonable expectation of privacy,” then there is effectively no protection to be had, because it simply isn’t a durable standard.  As his comment in this recent case about the “five or more Justices of this Court” harkened back to, it is subjectively dependent on the whims of the judges hearing the case.  As he also wrote then:

Maybe, then, the Katz test should be conceived as a normative question. But if that’s the case, why (again) do judges, rather than legislators, get to determine whether society should be prepared to recognize an expectation of privacy as legitimate? Deciding what privacy interests should be recognized often calls for a pure policy choice, many times between incommensurable goods—between the value of privacy in a particular setting and society’s interest in combating crime. Answering questions like that calls for the exercise of raw political will belonging to legislatures, not the legal judgment proper to courts. See The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton). When judges abandon legal judgment for political will we not only risk decisions where “reasonable expectations of privacy” come to bear “an uncanny resemblance to those expectations of privacy” shared by Members of this Court. Minnesota v. Carter, 525 U.S. 83, 97, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Scalia, J., concurring).

The case this week was not an electronic surveillance case. But it is worth noting that Gorsuch is still holding fast to his insistence that the common law is still the correct lens to use to evaluate potential Fourth Amendment violations, and not the “reasonable expectation of privacy” lens that has emerged since Katz.

It should come as no surprise that our decision today might accord with the accumulated learning of the common law—just as it should come as no surprise that our application of the Fourth Amendment ought to be informed by the common law’s lessons rather than mere intuition.

Because even if building off of Katz can sometimes result in even more protection, too often it has resulted in less, despite the Fourth Amendment’s articulated protection and history.

For a period, to be sure, the miasma created by this Court’s Katz era led some to think the scope of the rights guaranteed by the Fourth Amendment depend on nothing more than current judicial instincts about “reasonable expectations of privacy.” See Carpenter, 585 U. S., at 394–395, 405–406 (GORSUCH , J., dissenting). But that confusion cannot last forever, for no one should think the rights of Americans hang on so thin a thread. Instead, and as Justice Story recognized, the Fourth Amendment is made of sturdier stuff, representing “the affirmance of a great constitutional doctrine of the common law.” 3 Commentaries on the Constitution of the United States 748 (1833).

But his concurrence here may be more than just academic; it seems like it could be read to suggest that it may be time for litigants to take another swing at challenging the government’s warrantless electronic surveillance, especially given his callback to Carpenter, a case that implicated it. Because this time, he is intimating, the Court should get the analysis right, to find such surveillance anathema under the Fourth Amendment, by using more timeless common law principles than the courts since Katz have been free to use.  Because even if the lower courts have been stuck with the “reasonable expectation of privacy” framework, the Supreme Court is not.  And this concurrence reads as a clear call for the Court to revisit it.

Such challenges would also come not a moment too soon (assuming they are not already too late) given how the government’s data collection practices are now having immediate, direct, and horrific effect on people’s liberty writ large. It is not just personal information currently being seized but actual people, aided by the warrantless collection of their data. Or, in other words, and as it seems Gorsuch understands, what is happening is exactly what the Fourth Amendment was supposed to forestall. Thus it seems time for litigants to try again, to tee up before the Supreme Court the Fourth Amendment question that electronic surveillance implicates so that the Court can back up and try again, this time directing our subsequent Fourth Amendment jurisprudence down a different path from where it strayed post-Katz, and instead lead to one where the rights of Americans, particularly with respect to their electronic data, no longer “hang on so thin a thread.” It seems there’s already at least one justice on board with finding that the Fourth Amendment precludes what the government has been doing of late, and probably more.

Postscript: It is not the point of this post, but it is worth spending a moment to also digest Justice Sotomayor’s concurrence. In it she cautions that this decision should not be taken as a blanket rule that a police officer can always rush in without a warrant when they anticipate an emergency situation. Indeed, she notes, rushing in has the tendency to create the emergency, especially given the proliferation of firearms, and that danger should count heavily on the side of the ledger against the warrantless intrusion. Nevertheless, she continued, as in this case there can be factors counterbalancing those concerns and nevertheless justify the intrusion, which is why she joined the decision. But she was careful to emphasize in her concurrence that the rule here is not that all warrantless entrances in case of emergency are allowed; rather, the rule is that an assessment of whether there is an “objectively reasonable basis” for entering needs to always be made before such a warrantless intrusion can potentially be excused.

That conclusion, on the facts of this case, does not mean it will always be objectively reasonable for officers responding to a mental-health crisis to make a warrantless entry. A different mix of information [in this case here] might have led to the conclusion that the officers’ entry itself would put the occupant (and officers) at a greater risk of escalation and serious injury. Because the “objectively reasonable basis” test, as reaffirmed by the Court today, demands careful attention to the case-specific risks that attend mental-health crises, and requires officers to act reasonably in response, I join the Court’s opinion in full.

Filed Under: 4th amendment, common law, electronic surveillance, emergency, neil gorsuch, privacy, reasonable expectation of privacy, sonia sotomayor, warrants