Supreme Court Turns to Common Law for Guidance in Fourth Amendment Cases
Supreme Court of the United States
The Supreme Court ruled on three Fourth Amendment cases during the October 2020 legislature. They shared several characteristics.
First, the police lost them all, which is unusual for a court that has generally sided with law enforcement in search and seizure cases. Second, none have resulted in a significant change in Fourth Amendment law, although each has provided clarification that will certainly be important in some cases. And third, the court has repeatedly engaged in a lengthy review of the common law starting in 1791 to decide the meaning of the Fourth Amendment today.
This certainly shows the influence of having several originalist judges and provides an important lesson for lawyers who brief and argue cases in the High Court.
Exceptions to the Mandate Requirement
The Supreme Court has often insisted on the special protection of the home under the Fourth Amendment. Police usually need a warrant before entering and searching a person’s home. But it is not absolute; there are exceptions. In two cases, this term implied exceptions to the requirement of a warrant.
One is if the police are “chasing” a person suspected of a crime. In cases such as Warden v. Hayden and Payton v. new York the court expressly recognized that the police can enter a house without a warrant if they are pursuing a suspect. But what if the accused person is suspected of having committed a crime?
That was the problem in Lange v. California. Arthur Lange was driving with his radio which howled and honked. Such excessive noise is a misdemeanor in California. A policeman observed this and turned on the lights to arrest Lange. But Lange drove down his driveway and parked in his garage. The policeman got out of his car and entered the garage. He saw that Lange was drunk and arrested him.
Lange argued that the officer violated the Fourth Amendment by entering the garage without a warrant. The officer maintained that it was allowed because he was in pursuit of her. The lower courts sided with the police and found no Fourth Amendment violations.
The Supreme Court overturned an opinion of Justice Elena Kagan. The court, however, declined to create a clear rule that prosecution never justifies warrantless entry when the felony is a misdemeanor. Instead, the court said it would require a case-by-case analysis and that warrantless entry, when there is a prosecution of a misdemeanor case, would be justified if there is a risk of destruction. evidence or leakage or imminent harm. to others.
In fact, the court went so far as to say that this “approach will in many, if not most, cases lead to a warrantless entry.” But the court expressly rejected a rule that would have allowed warrantless entry whenever there is prosecution in a misdemeanor case. Judge Kagan wrote that “the need to prosecute a misdemeanor does not trigger a hard and fast rule allowing home entry, even in the absence of a law enforcement emergency.” Justice Kagan justified this conclusion, in part, on a detailed examination of the common law from 1791 when the Fourth Amendment was enacted.
The other case involving exceptions to the warrant requirement was Caniglia vs. Strom. A married couple quarreled. The woman left the house and stayed in a hotel that night. She feared that her husband would hurt himself when she could not reach him by phone. She called the police, who found him at home in great shape. However, the police took him into custody for a mental health assessment. Officers then returned to the home and, without a warrant, seized his firearms.
The man sued the police for violating his Fourth Amendment rights. The officers argued that their actions were justified by a “community caretaking” exception to the warrant requirement. The United States’ First Circuit Court of Appeals sided with the police. The Supreme Court, however, in a unanimous opinion of Justice Clarence Thomas overturned. In one of the shortest majority opinions of the year, the court made it clear that community guarding is a very narrow exception that does not apply to searches of people’s homes.
The community guarding exception comes from Cady c. Dombrowski, in 1973. A police officer on leave, Dombrowski, was arrested for impaired driving and his car was towed to a police lot. The arresting officer thought Dombrowski’s duty revolver may still be in the car and searched the vehicle. During the search, the officer found evidence that linked Dombrowski to a murder. This crucial evidence led to Dombrowski’s conviction.
The Supreme Court, 5-4, found that the warrantless search of the car did not violate the Fourth Amendment and therefore the evidence obtained was admissible. The court invoked the automobile exception to the warrant requirement. But the court also pointed out that the police had not violated the Fourth Amendment because they were involved in “community guarding.”
Since Cady c. Dombrowski, there has been confusion in the lower courts about this exception and its application. In Caniglia vs. Strom, the court clarified that it did not apply to house searches. Judge Thomas said: “What is reasonable for vehicles is different from what is reasonable for homes. Cady has recognized this, and this court has repeatedly “refused to extend the scope of … exceptions to the warrant requirement to allow warrantless entry into the house.”
It sounds simple and straightforward, but there is another exception to the warrant requirement where there are “urgent circumstances”. Eliminating the community caretaking exception does not seem to matter much where the police can search without a warrant if they reasonably believe there is an emergency.
What is a seizure?
When is a person seized by police for the purposes of the Fourth Amendment? In United States v. Mendenhall, in 1980, the court declared that a person is seized if a reasonable person in the circumstances “would have believed that he was not free to go”. In California v. Hodari D., in 1991, the court ruled that the pursuit of a suspect by the police was not a seizure; the seizure did not take place until the person had been approached by the officer. The result was that the evidence filed by the person during the prosecution was admissible against him. As the prosecution was not a search, no reasonable suspicion or probable cause was required.
Torres v. Madrid, decided this term, again raised the question of whether a person had been seized. Four New Mexico State Police officers arrived at an apartment complex in Albuquerque with a warrant for a woman. Officers saw Roxanne Torres, who was not the wanted person, get into her car and attempted to speak to her. Apparently she didn’t notice them until one of them tried to open her car door. She thought the officers were car thieves and pressed the gas to escape.
Police fired 13 shots at Torres, hitting her twice in the back and temporarily paralyzing her left arm. Torres walked through the hail of bullets, exited the apartment complex, and pulled up a short distance in the parking lot of a shopping center. Torres saw an unoccupied car with its engine running, stole it, and drove 120 kilometers to a hospital. The police arrested her the next day. Torres made a clear plea of an aggravated flight of a law enforcement officer, assault on a peace officer and the illegal seizure of a motor vehicle. But she sued the police for excessive force.
In Graham vs. Connor, in 1989, the court ruled that excessive police force is a seizure that violates the Fourth Amendment. But was Torres seized because she was still able to travel 75 miles? The court ruled in his favor and ruled that “the application of physical force to a person’s body with the intention of restraining him is a seizure, even if the force fails to restrain the person”. Chief Justice John G. Roberts Jr. wrote for the court, noting: “A seizure requires the use of force with the intention of restraining. Accidental force will not be admissible. Force applied intentionally for other purposes will also not satisfy this rule. Roberts justified this conclusion, in part, by a careful examination of the common law prior to 1791.
Judge Neil M. Gorsuch wrote a vehement dissent, joined by Justices Thomas and Samuel A. Alito. He argued that the woman was not seized, as evidenced by the fact that she traveled 75 miles. He argued that a person is not seized until the police have taken possession of a person.
As mentioned, Torres v. Madrid in the context of a civil action for excessive police force. It is much more difficult to imagine the context in a criminal case, when there is a request to suppress evidence, where it is likely to matter. Hodari D. remains the law: Police pursuit of a suspect is not Fourth Amendment seizure.
The court developed an elaborate body of doctrines relating to the Fourth Amendment. They occur in countless cases, criminals and civilians, every day. The three cases of this term shed light on certain aspects of the Fourth Amendment and are revealing of the court’s methodology, emphasizing the common law rules as they existed in 1791.
Erwin Chemerinsky is Dean of the University of California at the Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and litigation on appeal. He is the author of several books, including The case against the Supreme Court (Viking, 2014). His latest book is Religious clauses: the arguments in favor of the separation of Church and State, written with Howard Gillman (Oxford University Press, 2020).