The question of when and how police may enter our homes strikes at the core of American liberty. It was on the Founding Fathers’ minds when they rallied a nation to revolution. It’s on many of our minds today following the tragic shooting of Breonna Taylor in her Louisville apartment. And it’s a question the U.S. Supreme Court is poised to address yet again this term in an important Fourth Amendment case called Lange v. California.
The facts of Lange are simple: An officer saw Lange commit a minor traffic offense, flashed his lights just before reaching Lange’s driveway, and when Lange failed to stop, the officer entered Lange’s garage without a warrant. But the implications are huge: The Fourth Amendment requires police to obtain consent or a warrant before entering our homes unless the situation presents what the Supreme Court has called “exigent circumstances.” Lange asks whether a police officer’s pursuit of a fleeing misdemeanant categorically qualifies as an exigency justifying a warrantless entry.
One way to answer that question would be to follow the Supreme Court’s current approach, which focuses on the Fourth Amendment’s Reasonableness Clause. After all, the text of the Amendment forbids only “unreasonable searches and seizures,” which would seem to make the analysis straightforward: When do police need a warrant to enter our homes? Whenever it would be unreasonable to enter without one. When are there exigent circumstances justifying a warrantless entry? Whenever circumstances would make it reasonable to enter without one.
The problem with this approach is that it provides little substantive guidance for courts. “Reasonableness,” unmoored from any objective standard, is a notoriously malleable test. Judges naturally hold different views of police and of the offenses in each case. And so we get cases like Lange, where lower courts are “sharply divided” on whether police must get a warrant before bursting into people’s homes to pursue fleeing misdemeanants.
Fortunately, the solution lies in another part of the Fourth Amendment’s text: the Security Clause. The Amendment starts by declaring “the right of the people to be secure” in their persons and property. This language, which frames the rest of the Amendment, has been “largely forgotten.” But as the Institute for Justice argues in a recent amicus brief, the Security Clause has substantive content that clarifies both the “reasonableness” inquiry and the question in Lange.
Start with the Founding. In 1777, Samuel Johnson’s dictionary defined “secure” to mean “protected from . . . danger” and “free from fear.” Blackstone similarly wrote that “personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, [and] his body,” as well as freedom from “menaces” to his safety. As Professor Luke Milligan has shown, this was the common meaning at the time.
Given the abuses that prompted the adoption of the Fourth Amendment, it makes sense that the Framers would declare our right to be “secure.” The Amendment was a response to the “reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Prominent critics denounced these writs not just for their intrusiveness, but for the looming threat they posed to persons and property. As James Otis, who argued the 1761 Writs of Assistance Case, put it, officers’ unchecked power to search and seize “place[d] the liberty of every man in the hands of every petty officer,” leaving “every hous[e]holder . . . less secure than he was before.”
Such broad power to invade people’s homes flew in the face of what the Framers deemed “one of the most vital elements of English liberty”: the maxim that “a man’s house is his castle.” For one thing, castles keep their occupants safe by keeping intruders out. More broadly, they give their occupants peace of mind that they are safe. This is why John Adams, on the eve of the Revolution, described the home as a place of “as compleat a security, safety and Peace and Tranquility” as a castle.
The Security Clause was the Framers’ attempt to enact these principles into law. By declaring “the right of the people to be secure” from unreasonable searches and seizures, they were guarding against threats to our persons and property. And more, they were ensuring that Americans need not tremble in our homes—that we would, instead, stand confidently in our castles. As free people do.
With security as the main standard for the “reasonableness” inquiry, some of the Supreme Court’s major rules start to make sense.
The general rule that warrantless searches are per se “unreasonable,” for example, makes sense because law enforcement is dangerous business. Any time police interact with civilians, there’s a risk the exchange could escalate from “pleasantries” to “hostile confrontations of armed men involving arrests, or injuries, or loss of life.” That risk is even higher when police forcibly enter our homes. Requiring a warrant protects us from these risks by forcing “officer[s] engaged in the often competitive enterprise of ferreting out crime” to convince a “neutral and detached magistrate” that the entry is justified.
The narrow exigent-circumstances exception, which “allows a warrantless search when an emergency leaves police insufficient time to seek a warrant,” also makes sense on a security-based approach. Police are supposed to protect us from criminals and other threats to our persons and property. Requiring police to stop and get a warrant would make no sense, then, when immediate action is necessary to prevent violence or the destruction of property. That would make us less secure, not more. This explains why the Court has allowed police to enter homes without a warrant to, for example, capture armed criminals, break up violent fights, and extinguish fires, but not to arrest somebody who committed a traffic offense that posed no “threat to the public safety.”
Allowing warrantless entries so that police can quell immediate threats to persons and property is also consistent with the Founding-era exceptions to the warrant requirement. An amicus brief from the Constitutional Accountability Center shows that, at common law, officers could generally only break into homes in pursuit of fleeing felons (who were usually dangerous), to prevent the commission of a felony after a “dangerous wounding,” or to prevent violent affrays or breaches of the peace. Of these, only the last sometimes included misdemeanors—but all involved violence or threats to persons or property.
In short, if our right to be secure in our persons and property matters under the Fourth Amendment—and it does—then a robust warrant requirement with narrow exceptions for true emergencies makes perfect sense. And if that’s right, then the implications for Lange are clear: A categorical rule for misdemeanor pursuits—one that allows police to burst into our homes no matter how harmless the offense, how much time they have to get a warrant, or how destructive the entry might be—is untenable under the Fourth Amendment’s Security Clause.
A Supreme Court decision recognizing this would have implications far beyond Lange. It would provide crucial guidance for courts and police nationwide on how to protect a foundational, but forgotten Fourth Amendment right: “the right of the people to be secure.”