Chemerinsky: Supreme Court looks to common law for guidance in Fourth Amendment cases
Erwin Chemerinsky. Photo by Jim Block.
The Supreme Court decided three cases concerning the Fourth Amendment during the October 2020 term. They shared several characteristics.
First, the police lost all of them, which is unusual for a court that generally has sided with law enforcement in search and seizure cases. Second, none brought about a significant change in the law of the Fourth Amendment, though each provided a clarification that is sure to be important in some cases. And third, the court repeatedly engaged in lengthy examination of the common law as of 1791 in deciding the meaning of the Fourth Amendment today.
It certainly shows the influence of having several originalist justices and provides an important lesson to lawyers briefing and arguing cases before the high court.
Exceptions to the warrant requirement
The Supreme Court often has stressed the special protection for the home under the Fourth Amendment. Police generally need a warrant before entering and searching a person’s dwelling. But this is not absolute; there are exceptions. Two cases this term involved exceptions to the warrant requirement.
One is if police are in “hot pursuit” of a person suspected of a crime. In cases such as Warden v. Hayden and Payton v. New York the court expressly recognized that police may enter a home without a warrant if they are chasing a criminal suspect. But what if the person being pursued is suspected of committing a misdemeanor?
That was the issue in Lange v. California. Arthur Lange was driving with his radio blaring and honking the horn. Such excessive noise is a misdemeanor in California. A police officer observed this and put the lights on to pull Lange over. But Lange drove into his driveway and parked in his garage. The officer got out of his car and went into the garage. He saw that Lange was intoxicated and arrested him.
Lange argued that the officer violated the Fourth Amendment by entering the garage without a warrant. The officer argued that it was permissible because he was in hot pursuit. The lower courts sided with the police and found no violation of the Fourth Amendment.
The Supreme Court reversed in an opinion by Justice Elena Kagan. The court, though, refused to create a bright-line rule that hot pursuit never justifies warrantless entry when the crime is a misdemeanor. Instead, the court said that it will require a case-by-case analysis and that warrantless entry, when there is hot pursuit of a misdemeanor case, would be justified if there is the risk of destruction of evidence or of flight or of imminent harm to others.
In fact, the court went so far as to say that this “approach will in many, if not most, cases allow a warrantless home entry.” But the court expressly rejected a rule that would have allowed entry without a warrant whenever there is hot pursuit in a misdemeanor case. Justice Kagan wrote that “the need to pursue a misdemeanant does not trigger a categorical rule allowing home entry, even absent a law enforcement emergency.” Justice Kagan justified this conclusion, in part, on a detailed examination of the common law as of 1791 when the Fourth Amendment was adopted.
The other case involving exceptions to the warrant requirement was Caniglia v. Strom. A married couple got into an argument. The woman left the house and stayed in a hotel that night. She was afraid that her husband might have harmed himself when she could not reach him by phone. She called the police, who found him at home doing fine. Nonetheless, police took him into custody for a mental health evaluation. Officers later returned to the home and, without a warrant, seized his guns.
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 First U.S. First Circuit Court of Appeals sided with the police. The Supreme Court, though, in a unanimous opinion by Justice Clarence Thomas reversed. In one of the shortest majority opinions of the year, the court made clear that community caretaking is a very narrow exception that has no application to searches of people’s homes.
The community caretaking exception comes from Cady v. Dombrowski, in 1973. An off-duty police officer, Dombrowski, was arrested for driving while intoxicated and his car was towed to a police lot. The arresting officer thought that Dombrowski’s service revolver still might be in the car and searched the vehicle. During the search, the officer found evidence that tied Dombrowski to a murder. This crucial evidence led to Dombrowski’s conviction.
The Supreme Court, 5-4, concluded that the search of the car without a warrant did not violate the Fourth Amendment and that therefore the evidence gained was admissible. The court invoked the automobile exception to the warrant requirement. But the court also stressed that the police did not violate the Fourth Amendment because they were involved in “community caretaking.”
Since Cady v. Dombrowski, there has been confusion in the lower courts about this exception and when it applies. In Caniglia v. Strom, the court made clear that it has no application to searches of homes. Justice Thomas declared: “What is reasonable for vehicles is different from what is reasonable for homes. Cady acknowledged as much, and this court has repeatedly ‘declined to expand the scope of … exceptions to the warrant requirement to permit warrantless entry into the home.’”
That seems simple and straightforward, but there is another exception to the warrant requirement when there are “exigent circumstances.” The elimination of the community caretaking exception hardly seems to matter when police can engage in a warrantless search if they reasonably believe that there are exigent circumstances.
What is a seizure?
When is a person seized by the police for purposes of the Fourth Amendment? In United States v. Mendenhall, in 1980, the court said that a person is seized if a reasonable person in the circumstances “would have believed that he was not free to leave.” In California v. Hodari D., in 1991, the court ruled that police chasing a suspect was not a seizure; the seizure occurred only once the person was tackled by the officer. The result was that evidence dropped by the person during the chase was admissible against him. Because the chase was not a search, no reasonable suspicion or probable cause was required for it.
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 an arrest warrant for a woman. The officers saw Roxanne Torres, who was not the person they were seeking, get into her car, and attempted to talk with her. Apparently, she did not notice them until one tried to open her car door. She thought the officers were carjackers and hit the gas to escape.
The officers fired 13 shots at Torres, striking her twice in the back and temporarily paralyzing her left arm. Torres drove through the hail of bullets, exited the apartment complex and stopped a short distance away in a shopping center parking lot. Torres saw an unoccupied car with its motor running, stole it and drove 75 miles to a hospital. Police arrested her the next day. Torres pleaded no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer and unlawfully taking a motor vehicle. But she sued the police for excessive force.
In Graham v. Connor, in 1989, the court held that excessive police force is a seizure that violates the Fourth Amendment. But was Torres seized because she still was able to drive 75 miles? The court ruled in her favor and held that “(t)he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” Chief Justice John G. Roberts Jr. wrote for the court, noting: “A seizure requires the use of force with intent to restrain. Accidental force will not qualify. Nor will force intentionally applied for some other purpose satisfy this rule.” Roberts justified this conclusion, in part, on a careful look at the common law before 1791.
Justice 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 drove 75 miles. He contended that a person is not seized until the police take possession of a person.
As mentioned, Torres v. Madrid arose in the context of a civil suit for excessive police force. It is much harder to imagine the context in a criminal case, when there is a motion to suppress evidence, where this is likely to matter. Hodari D. remains the law: police chasing of a suspect is not a seizure for purposes of the Fourth Amendment.
The court has developed an elaborate body of doctrines concerning the Fourth Amendment. They arise in countless cases, criminal and civil, every day. The three cases this term provide clarification about some aspects of the Fourth Amendment and are revealing of the court’s methodology, putting great emphasis on the common law rules as they existed in 1791.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book is The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020).