On May 17, 2021, the Supreme Court released its decision in Caniglia v. Strom, which focused on whether the community-caretaking exception to the Fourth Amendment’s warrant requirement extended to the home. By a vote of 9-0, the judgment of the U.S. Court of Appeals for the First Circuit is vacated and the case remanded. Although Justice Thomas's opinion for the Court was unanimous, The Chief Justice filed a concurring opinion, joined by Justice Breyer. Justices Alito and Kavanaugh also filed concurring opinions. Our two experts join us to offer commentary on this decision.
Matt Cavedon, Criminal Defense Attorney, Gainesville, GA
Robert Frommer, Senior Attorney, Institute for Justice
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Guy DeSanctis: Welcome to The Federalist Society's Teleforum conference call. This afternoon, May 18th, we discuss the Courthouse Steps Decision: Caniglia v. Strom. My name is Guy DeSanctis and I'm Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call.
Today, we are fortunate to have with us Matt Cavedon: criminal defense attorney, Gainesville, Georgia; and Robert Frommer: senior attorney, Institute for Justice. After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call. With that, thank you for being with us today. Matt and Robert, the floor is yours.
Robert Frommer: Thank you so much. Hi, everyone. I'm Robert Frommer. I'm a senior attorney at the Institute for Justice, which is a non-profit public interest law firm. There I do a lot of work surrounding the Fourth Amendment, which brings me here today to discuss Caniglia v. Strom, a fascinating case that just got decided by the Supreme Court.
For those of you who might not be familiar with Caniglia, let me give you a brief backdrop as to the facts of the case. It's pretty interesting how from a very small incident a very large decision can grow. This case really starts with a domestic squabble. Edward Caniglia and his wife were sitting around talking and -- well, really arguing at dinner, and Edward, frustrated, went into one of his rooms, grabbed an unloaded weapon, put it down, and said, "Why don't you just put me out of my misery?" Well, surprise, surprise, that did not somehow make the argument go any better.
They continued to argue. Eventually, Mrs. Caniglia left and decided to spend the night at a hotel. So she tries to call the next morning to talk to Mr. Caniglia. She can't get him so she's slightly worried and wants officers to come and come do a check at the home just to make sure everybody's okay. So they get there. They run into -- they see Mr. Caniglia. They start talking to him. The officers think he seems fine. They don't note that there -- he seems suicidal or despondent in any way, but still -- besides that, they were still, I guess, concerned about the possibility he might harm himself so they wanted to take him to the hospital for a psychological evaluation.
Now, Mr. Caniglia said, "Okay, I'll go with you but on the condition that you don't go into my house and take my guns." The police said to him, "Okay, we won't do that." But as soon as they left, don't you know, the officers went to Mrs. Caniglia and said to her, "Well, your husband authorized us to take the weapons." So she led them through the house, where they discovered the guns and took them. Well, Mr. Caniglia was soon out of the hospital and came home to find that his guns were missing. Then he went to the police and said to them, "Can you give me my guns back," and they refused. That's what ticked off this litigation.
Really, the question here is whether the government was able to enter Mr. Caniglia's house and take those weapons without a warrant and without what would be considered exigent circumstances. Partedly, during the -- while this case was being litigated, the government eschewed any kind of argument that this was justifiable as an exigent circumstance or pursuant to the emergency aid doctrine. Well, that didn't really matter to the First Circuit. The First Circuit held that the officer's actions were valid under what's known as -- or what was known as the community caretaking doctrine.
This is a doctrine that first arose in a case called Cady v. Dombrowski, where they said officers have to deal with a lot of non-law enforcement everyday activities. In Cady, it was about a towed vehicle, and the First Circuit reasoned if officers have to deal with all these non-law enforcement activities, then some of those are going to include the home. And so, so long as the officer does not have a law enforcement purpose — is not trying to detect or investigate crime — and they think it's reasonable for them to enter based on the facts they know, then that's enough.
That's what the community -- in fact, the First Circuit, in upholding the use of the community caretaker doctrine for the home, joined a number of other Circuits, including the Eighth Circuit and many other state courts, in extending this community caretaker doctrine to the home. So Mr. Caniglia moves -- files for a cert, it's granted, and it comes up. The case is argued -- and I think we're going to talk a little bit about that argument -- some of the things that came out of that argument a little bit. But this case was argued just a couple of months ago, and so the decision yesterday was a very fast turnaround. And I think that you can understand that, given that this was a unanimous decision of the Court authored by Justice Thomas.
It's really an incredibly short and to-the-point opinion. The Court was not messing around. This is one of the shortest majority opinions, frankly, I've ever seen. In that majority opinion, Justice Thomas, for the Court, laid out the ways in which someone can -- the police can traditionally enter someone's home or the curtilage. The Court notes the most obvious one is a warrant. The second one is that they can enter private property without a warrant when there are certain exigent circumstances that exist. And they also pointed out that police officers can enter based on consent or just on the customs of society. This goes back to the Florida v. Jardines decision from 2013 where the Supreme Court said it would be perfectly fine for an officer to walk up to your front door, just like anyone else can do, but what he can't do is bring a drug-sniffing dog up there because that changes the nature of the search. So we have a warrant, we have exigent circumstances, and we have consent or the customs of society.
Then the Court goes on to say that what the First Circuit did — and those other circuits and high courts that blessed the extension of the community caretaker doctrine — they exceeded all proper bounds. And what they focused on -- I think the key part of the Court's decision in Caniglia is it stresses the constitutional differences between the facts in Cady and the facts that are here. I talked about that a little bit, most notably that Cady involved a car that was involved in an accident. The car got in an accident, was inoperable. It had to be towed and taken to a lot. And there it was, during the course of the inventory search, that they found the weapon.
So police frequently need to deal with broken-down vehicles. That was part -- a large part of the holding in Cady. And in Cady, the Court expressly noted that the community caretaking language there was referring to dealing with disabled vehicles on public highways. Now, that's a lot different than what we have here because this isn't a car -- a broken-down car on the side of the road. This is someone inside their own home. And what the Court said is, in this situation, there's not those same kinds of public faith in non-law enforcement duties here that exist in Cady. And it concluded the decision — again, very short decision; I think total of four pages — by saying that the existence of a community caretaking function — the fact that police might have to do -- tow vehicles on the road, or search vehicles that are inoperable on the road as part of that towing — does not mean that the government has an open-ended license to perform those community caretaking functions anywhere.
So the Court was, again, stressing we will allow warrantless searches when they are needed. They are needed for these public cars -- broken down cars in a public right of way. They aren't needed for the home. So again, this opinion is very short and very powerful. There are several initial thoughts that came from it. Now, one thing is that the majority opinion is very short but there's several concurrences, which we'll be talking about in a moment. But I think one striking thing is the unanimity here.
The members of the Court clearly recognize sort of the open-ended nature of the community caretaker doctrine as articulated by the First Circuit. And that really came out in argument, actually, where the -- I think it was Chief Justice Roberts asked the lawyer for the government whether the police could enter someone's private property, their backyard, in order to get a cat out of the tree. And the government lawyer immediately said sure, that would be fine because it seemed like a very minimal intrusion, and it seems like it could benefit the public in some way. And it's that kind of open-ended balancing inquiry in the mind of the officer on the beat that I think gave the Court great pause.
After all, the Fourth Amendment is really established to protect our persons and our property. It's supposed to make sure that the rules and the rights that we have are akin to those that our forefathers had when they came from England, and a large part of that meant that we don't give discretion to the officer on a beat. We'd like the warrant processed because it interposes a neutral person between the member of the public — a citizen who has Fourth Amendment rights — against the power of the state. So when it realized that the community caretaking doctrine would create a warrantless path by which the officers could enter, it realized it didn't want any part of that.
Now, it's important, like I said, that this opinion will have a broad impact because there have been several circuits, and numerous state high courts, that have endorsed the use of the community caretaking doctrine in homes. Since the Fourth Amendment and the decisions of the United States Supreme Court serves as the floor to our rights, that means all those decisions are no longer good law, which I think is ultimately to the good. Because, as you might already appreciate, I have a -- there's a great concern in the body of the Fourth Amendment about discretion in officers and the kind of warrantless police entries that an affirment here would have allowed. It would mean there's a lot more times when officers would just be breaking into people's houses. Since it's those kinds of entries that often provoke violence, this holding should improve both security for our rights and hopefully public safety as well.
Now, also, I think it's important to note here that in Caniglia it seems that the Court is doing some broader metapoints. It seemed like it was going out of its way to set the table to sort of lay out a list. Remember, early on I said that there were three ways the Court said you could get -- police could get into someone's home: a warrant, exigent circumstances, and consent. And by saying that, by explaining when the police can get into a home, it pushes back against the -- again, against that free-floating reasonableness analysis that underlies the community caretaking doctrine. The idea that oh, we'll just let officer and his mind decide whether -- the social cost and benefits and if it's reasonable for his actions.
The Court's opinion very clearly rejects that free-floating reasonableness analysis and, in fact, members -- justices on the Court were very concerned about that and the breadth of it during argument. That kind of free-floating reasonableness analysis is the idea that what's reasonable is just whatever in our mind is reasonable -- really, is not what the best reading of reasonable means in the Fourth Amendment. The best research actually suggests that whether a search is reasonable or not is not really based on our modern view of whether we think it's a good idea or not, but really about whether it was consistent with the principles of the common law -- so are those broad principles that were established at the time of the Fourth Amendment that were meant to protect persons and property.
So that's the real standard. It's not a free-floating whatever we happen to think today might be reasonable, but it's really more about is this consistent with the broad principles that motivated the Fourth Amendment: the idea of warrantless action by government or overly broad warrants trying to interpose a neutral magistrate between us and the state. And, of course, a very broad protection for our persons and property.
So in some ways, the Court's rejection of this free-floating balancing test, it actually echoes back in this Fourth Amendment context -- it actually echoes back to -- well, at this point close to a decade-old opinion in United States v. Stevens.
Now, that's an old First Amendment case from, I want to say 2009 or 2010 that involved animal cruelty, and the government there did something very interesting. It tried to argue to the Court that the Court should adopt a test by which it decides whether speech is protected or not based on, sort of, an ad hoc balancing of its social costs and its social benefits. And the Court, in Stevens, completely rejected that approach and it said no, that is not how we do it. That is not how the Constitution works. There is certain historical categories of speech that are unprotected, otherwise, you get protection. And that's exactly what I see the Court doing here in Caniglia, rejecting this broad-based reasonableness analysis and saying under the common law, under Fourth Amendment traditions, there are three ways you can get into the home: consent, a warrant, or exigent circumstances. We're not going to be inventing a fourth, especially one that allows such free-floating analysis by the officer on the beat.
Now, this is all to the good, but I will say that I had one slight concern from the opinion in Caniglia, and it's this continued fidelity to the idea that the home is first among equals for Fourth Amendment purposes. You see this a lot. This is frequently brought up, and it has a certain surface-level appeal because, after all, the home is -- most of us think of the home as our place of privacy. So it's not the home is important because it's the home, but because it's the place where people withdraw into their private lives, where they want to be secure in their private lives, where they want to hold their property. So the home is the core -- at the core of the Fourth Amendment because it exists as a place of security and refuge, and for most people, it is the focal point of that place of security and refuge.
But, of course, we use other places for those same purposes. For instance, we contract with others to rent spaces to store things. Those places are -- from a basic perspective of property and contract law, they're just as much ours as our home, and we treat them that exact same way. Now, the question is, is the fidelity to the home that we see here in Caniglia going to be extended to other forms of property that are maybe under assault?
So for instance, if you own a storage -- if you rent a storage place or a security deposit box, do you have Fourth Amendment rights in those? And will those Fourth Amendment rights be vindicated and guarded just as closely as your Fourth Amendment rights with regard to your home? Because at the end of the day, whether you keep your most precious things in your house or in a safety deposit box, you ultimately want that security, and that's what the Fourth Amendment is supposed to guarantee. So with that, I think I'll turn over to my colleague, Matt Cavedon, who can talk a little bit more about some of those concurrences and where he thinks the future of the Fourth Amendment's going to go.
Matt Cavedon: So to zero in on the way that Rob was just talking, what we're going to talk about a lot now is the exigencies side of things. There were three different concurrences to Justice Thomas's opinion. Again, unanimous opinion -- all nine justices agreed that there is no free-ranging community caretaking exception to the warrant requirement for homes. But there were practical concerns, by at least three justices, as to how far there could be exceptions to the warrant requirements in other circumstances.
The first of the concurrences comes from Chief Justice Roberts. It's brief, it's not even a full page long. All that he says is that the Court held several decades ago that there is an emergency aid exception to the warrant requirement and that nothing in the majority's opinion, which he joined, does anything to undercut that at all. That is the briefest statement among the concurring justices of really what the concern is that's shared by all of them, which is, what is happening when there could be an emergency or an exigency, that's going on inside of the home?
The next concurrence is from Justice Alito. This is a much longer, much more detailed concurring opinion. Justice Alito, again, reaffirmed there is no general community caretaking doctrine that applies to the home, but he singles out three different contexts in which he believes that there might need to at least be more juridical development of what could happen with or without a warrant. So he's not committing a whole lot. He's certainly leaving the door open for future litigation. Nevertheless, he's inviting future litigation on how the doctrines announced yesterday, and in other case law, could affect other areas of law.
Specifically, he cites, number one, what is going on when somebody is actually having a mental health crisis? Not just a day later after a night at the hotels, somebody couldn't get in touch with somebody as quickly, but truly, what happens when somebody is in a crisis moment? When somebody's inside of a home, and somebody has reason to believe that they might actually be immediately in danger of themselves or serving as a danger to somebody else. Alito says that there needs to be at least further litigation concerning what are the limits in cases like that. And those limits could concern, what kind of information does the person calling in the emergency need to have? Who is it who's doing the calling? How much time has elapsed? I would add whether or not the officers get information that midway through -- that changes how they perceive the emergency moment.
So to take the Caniglia example, officers arrived on scene and made contact with Mr. Caniglia before entering the home and retrieving the guns. They assessed him. They determined that he was not in any kind of immediate danger to himself. Justice Alito points out that there is precedent concerning involuntary commitment to mental institutions, but not really a whole lot, at least from the U.S. Supreme Court, on those in between sorts of mental health encounters where somebody may be at home but may not be in their fully rational state of mind.
The second cases that he cites are those involving what are called red flag laws. These became very prominent in the past several years as a result of mass shooting incidents and the efforts to try to find ways of regulating access to guns. Red flag laws usually say that somebody can call in and report that a gun owner may be a threat to themselves or others -- maybe for mental health reasons, maybe just because they are beginning to express violent sentiments. In those cases, there might be police responses that could involve seizing guns temporarily, pending a court hearing to determine whether or not there's enough evidence to continue to hold the property or whether the firearms should immediately be returned and all actions dismissed. Those laws, again, are pretty new in the grand scheme of things. Especially in the past five years or so, they've really gained prominence.
Justice Alito says, "Don't take anything that we're saying today to really comment, one way or another, on those kinds of laws which require their own analysis." Now, of course, those laws, in addition to the Fourth Amendment, directly implicate the Second Amendment and the right to keep and bear arms also. So that is another area to look for possible follow-up cases coming out of yesterday's decision.
Then the last case -- category of cases that Justice Alito cites is, what happened if you have a missing person? What happened if you have somebody who every Tuesday goes and has lunch across the street with Cousin Betty and doesn't show up, and somebody calls, is unable to reach them? Is that a point where you could call the police and have them go and check? If they knock on the door and don't hear an answer, can they then enter without that warrant? Or does a case need to rise all the way to the level of a missing person report before there can be any kind of an entry?
And indeed the practical problem there is in a lot of jurisdictions if you call a magistrate judge as an officer and say, "Hey, a family member was supposed to meet this person two hours ago and can't get in touch with them," you're not going to get a warrant. You're not going to get a judicial order saying go ahead and enter into the home. There is no suspicion of criminal activity. It's not severe enough, oftentimes at that point, to rise all the way to the level of being a missing person. The downside to that, of course, is people often live in isolation.
Justice Alito — and we'll see this in a minute with Justice Kavanaugh — expressed quite a bit of concern about especially elderly people who are living alone. Elderly people who may fall, injure themselves, have no way to get to a phone for even days at a time -- is it really necessary to wait 48 hours after a report has come in before any kind of entry into the home can be attempted? I'm not saying that to be sarcastic. That's an honest and open question. Certainly, advocates for elderly people and advocates for people with disabilities, like myself, might have different takes on this.
On the one hand, you do not want to create second-class property rights where people who are vulnerable have less protection in the confines of their own home from prying government actors than does everybody else. On the other hand, it is the reality that certain people are more vulnerable. Certain classes of people might be more vulnerable. And as said -- Justice Alito says, "An old woman who falls might well agree that her home is her castle. Nevertheless, it's not somewhere that she wants to die alone and in agony." It's a very real concern. So expect additional cases to come along each of those lines, testing the limits of where is Fourth Amendment jurisprudence after Caniglia. If there's not a general community caretaking function, what are the roles of police officers investigating and checking out situations where people may be in harm? The salience of that, I think, is only going to increase.
A lot of reform efforts in the past year have focused on shifting policing functions away from law enforcement officers and toward more civil experts in healthcare and mental health issues, perhaps civil emergency response forces, things like that. Trying to get police officers with guns and training for combat situations away from those situations and bring in other people who might have skill sets that are more tailored to the kinds of emergencies that are at hand. The question then emerges, of course though, what kind of legal authority do they have? Are they able to make a non-consensual warrantless entry in order to do their work? If they do, and they find evidence of a crime, are they allowed to report that and turn people into the police? Those are all very live questions that are, again, just beginning to come onto the radar now, as some of those discussions that are on the role of police continue to evolve.
Turning from the more practical, slightly toward the more academic, is Justice Kavanaugh's concurrence. Justice Kavanaugh, at first glance, echoes a lot of the concerns of Justice Alito about elderly people living alone, their vulnerability. Both of these justices, by the way, are picking up on questions that were posed by Chief Justice Roberts during oral arguments in this case. But Justice Kavanaugh says that, really, we have doctrinal tools for beginning to answer these questions. We don't necessarily need to wait for a ton of more litigation. Rather, we look at our history. We realize that reasonability is the touchstone of Fourth Amendment analysis and that where there are reasonable extensions of exceptions to the warrant requirement found in common law and found in our history, we shouldn't hesitate to hold that police can indeed make a warrantless entry.
So I think the case of an old woman who doesn't show up for church at her usual time and whose family can't get in touch with her, Justice Kavanaugh says, "Of course the officers can enter her home without a warrant to check and see what's going on." And that's just his concurrence alone. We'll see whether or not other justices are of the same bent or if they want to see more qualifications. But Justice Kavanaugh seems pretty ready to say sure, there's no community caretaking function, but that when there's a concern for missing, possibly vulnerable, people, that should be enough of a reason in and of itself. And indeed, he says this isn't even so much of an emergency aid exception separate from the general exigencies exception.
Instead, like Rob just said, there's just an exigencies exception to the warrant requirement. Exigencies just happen to include these kinds of situations where you're concerned, for non-criminal investigation reasons, about somebody's welfare, where they are, whether they're safe, and that that could authorize entry. Now, he doesn't spell out exactly which facts — at least if I remember right — lead him away from concluding that Caniglia is one of these cases, although it's pretty easy to see that Caniglia came to the door, presented himself, was capable of having a rational conversation. All of those things, certainly, would be very easy things to point to to distinguish that from, again, somebody who's unreachable when they're supposed to be reached.
So those are the kind of cases that I think are coming down the pipe. Those are the cases that litigators should be looking for in order to suss out how do you raise a challenge or what kind of police entry might be more defensible than the near outcome in Caniglia would suggest. I think it's also important for policymakers and activists to take these debates into account when figuring out, again, what does tomorrow's policing look like? Whether it's police officers, whether it's mental health workers, or whoever it may be who's tasked with doing this kind of checking in — welfare checks — or mental health crisis resolution, those kinds of folks need to be aware of what the state of the law is.
Policymakers also are going to have to think through what sorts of procedures they want to create. Of course, you can always just wait five years until an appellate court decides what the law may have to say about a certain policy entry or a certain civilian entry onto property. But if you want to be proactive, maybe think through creating a statutory process with guidelines for when you would issue a warrant -- not for criminal investigation but in a missing persons type situation -- that those kinds of laws need some reform as well. If you're sitting down to look at gun policy or mental health policy, how do you craft, say, red flag laws in a way that addresses some of these concerns at the outset? Maybe interposes that judicial oversight that Rob talked about as being important for our sense of privacy and security in our rights.
Or, again, thinking about even just going back down to the basics, what are the limits that we want in a free society? What are the limits that we believe are appropriate with our Constitution? What are the limits that people believe should be there to protect their homes and their intimate spaces? And then again, lastly, figure out how to address the competing concerns of vulnerable people like elderly people and people with disabilities who may well have both concerns -- concerns about their privacy and concerns about their physical safety and welfare or mental health.
So yesterday's decision doesn't resolve a whole lot, but it does, I think, set the terms of debate for all of these sorts of issues that are to come. For that reason, I do think it's an important -- maybe halfway point between a world that really wasn't as concerned with these kinds of issues and the next five to ten years where I think these issues are going to be pretty prominent in litigation.
Robert Frommer: Matt, I actually -- one thing that you noted during your discussion that I wanted to briefly touch upon is you mentioned the emergency aid doctrine and the exigency doctrines that exist. And I think one fascinating unresolved issue that you correctly highlight is what do you do in the circumstance when an exigency may be occurring, but you just simply don't have enough information to know for certain or not?
Historically, the exigent circumstance doctrine has usually turned on direct information that was within the officer's possession at the time of the action. But here, you're dealing with probabilities, and it's going to be fascinating to see in the years to come exactly what is the level of probability we need here -- both about the chance that the exigent circumstance is, in fact, incurring and also its severity before we allow officers or other government officials, as Matt pointed out, to make that warrantless entry. So there will be more to come.
Matt Cavedon: One of the questions that I think judges are going to have very different takes on is, how much do you want to have a lot of very specific, bright-line rules versus how much do you want to play with — again, what Rob mentioned earlier — discretion on the part of the officer. Do you want to have a rule that if an immediate family member living with somebody with a documented history of mental illnesses calls within 12 hours of ranting behavior that evolves, references weapons, an officer can make entry without a warrant, but if some of the elements are missing, then they can't?
Or do you want an approach that just says oh, whatever officer seems to be concerned about enough -- I mean, obviously, the right answer is neither of those. You don't want either of those situations. You don’t want an officer to have to carry around a 50 page manual of Byzantine regulations and different hornbook law in order to figure out what to do, I guess -- especially in a circumstance where every second matters. If the entire point of a warrantless entry is to recognize that there may be a time when you don't want to wait an hour and a half for a magistrate to get on the phone and sign a warrant, you certainly don’t want it to be one of these things where the driving forces are court decisions from eight years ago from some other jurisdiction that have been undercut by [inaudible 34:56]. You don't want every police officer to have to be a lawyer.
On the other hand, we're talking about the home. We're talking about people going into people's homes when they have not requested help. That is about as serious of an intrusion on property and privacy as exists under our system of law. You would certainly hope that the only times when that would happen is when there is a grave and immediate threat to safety or to health. That said, again, how to come up with that in a world of limited information -- I'm certainly not smart enough to have an answer this afternoon [Laughter]. And that's part of the joy of common law is that's something that's going to, unfortunately, I think, take several years' worth of trial, error, refinement, of looking at things in the rearview until maybe we can start figuring them out, which is [inaudible 35:53].
Robert Frommer: It's alright to -- there's one more point, I think, that -- I think Lange -- or sorry, Caniglia is sort of -- even though you're right, that it is a very -- it is an opinion that dismissed the community caretaking doctrine but left a lot of things left unanswered. I think one thing that you can see and hear is, maybe, a recognition that exigent circumstances is really -- is about the totality of the circumstances facing the officer. This is a constant fight in the legal world between rules versus sort of broad standards like exigency. And you can give the officer a 50 page rule book, or you can say look, it has to be imminent, it has to be serious, and then you deal with that out of the fact.
There's actually a case before the Supreme Court right now that it's still considering, Lange v. California, which is about one of those exigent circumstances exceptions for hot pursuit. The Institute for Justice, where I work, we submitted a brief in that case, arguing that the Court should reject the government's proposed rule, which was a categorical rule that said that officers could enter a home without a warrant whenever they were pursuing someone who they had seen commit a crime, even if that was only a misdemeanor. And instead, we said that leaves that home subject to way too many warrantless invasions. Instead, the common law has said to look only when there are certain facts on the ground in the awareness to the officer that shows exigent circumstances.
And again, I think it's the gravity of the offense, the likelihood of harm to others, etc. And that's not a perfect standard by any means. It does leave the officer with not as clear guidance as a cut and dry categorical rule, but at the same time, it helps preserve our security and our persons and property, and the sanctity of the home. So the fact that the Supreme Court, yesterday, in Caniglia said that you can get into the home when certain exigent circumstances exist may suggest that the decision in Lange will be against the categorical rule and in favor of more totality of the circumstances analysis, but we'll have to wait and see.
Matt Cavedon: We've got about 20 minutes left. How about we turn this over to perhaps people who are smarter than me and do have some suggestions or at least some prodding questions as to where to go from here?
Guy DeSanctis: Yeah. Thank you both. We'll now go to audience questions. Alright. Looks like we have our first question.
Caller 1: Good afternoon. I -- enjoying the discussion. How did the First Circuit get this thing so wrong when we've got a 9-0 on the Supreme Court? Anyway, just thought that out there.
Robert Frommer: This is Rob. Now, it's important to say the First Circuit -- yeah, sure, it was a 9-0 opinion, and you're saying to yourself well, how could the First Circuit have messed this up so much? But it's not like the First Circuit is blazing a brand -- was blazing a brand new trail on this. By the time Caniglia had come up, there had been several Circuits that had held that the community caretaking doctrine extended to the home. I think one of the first ones was United States v. Quezada out of the Eighth Circuit back in 2005. So this has been an issue of some debate in the lower courts, so it's not shocking to see the First Circuit zag rather than zig.
But it does note — and I think this is sort of a broader point that's useful to notice — that lower courts tend to be -- create rules -- Fourth Amendment rules that tend to favor the government, tend to favor official discretion, tend to favor warrantless entries. And it's really only when you get to the Supreme Court that you start seeing the privacy and the security concerns really reaching the fore. I'd like to say that this is the only area where that phenomenon has occurred, but it's happened over and over again in the area of the Fourth Amendment. And I think it speaks, probably, to the different incentives that are facing the lower courts versus the Supreme Court.
Matt Cavedon: I would also point out, and as Clark Neily at the Cato Institute has indicated, there's something of a dearth of defense attorneys on the federal bench at this point. There are a lot of former prosecutors. There are not a lot of former defense attorneys, or civil liberties attorneys. So that might skew jurisprudence in a certain direction. I'm not talking about the First Circuit panel here in particular. I haven't refreshed myself as to who comprised it. However, I will also say the Supreme Court -- I don't know if it deserves any blame here, but it did endorse the community caretaking exception for motor vehicles and never said that it didn't apply in the home context.
Granted, that's not the golden invitation to apply it to the home, but nevertheless, it's out there. I remember when I learned criminal procedure in law school, I knew there was a community caretaking exception to the Fourth Amendment. I was not left with the impression that it was limited to automobiles. Now, I would have to go back through and look at my case book and my lecture notes and everything, but I was left with a fairly strong sense that it was simply a warrant exception that had already been recognized formally by the law. So that may be the rub as well is that this doctrine exists. It does exist in the automobile context. There wasn't a whole lot of limiting guidance given as to it. Obviously, in hindsight it's fairly apparent the reasons why it would be limited to the car -- car is enjoyed much less protection under the Fourth Amendment than homes do as a general matter. But nevertheless, I don't know that anybody who specifically said that.
Robert Frommer: Yeah. And to be honest, as someone who litigates repeatedly, judicial decisions are the product of an adversarial process. The judge is only going to write an opinion as good as the arguments presented by both sides. So if you have one side, like the government, arguing that the community caretaking doctrine exists and it extends to the home and treats it -- that as a matter of settled law, and the other side doesn't contest the point, well, next thing you know, all of a sudden, you have a circuit opinion that unreflexively parrots the government's argument to the diminution of liberty.
Guy DeSanctis: Thank you for that question.
Caller 2: Yes. Good afternoon. Very much, gentlemen -- fascinating discussion. I remember hearing the initial discussion in the Courthouse Steps Oral Argument. For those attorneys of a certain age who remember -- I think as I recall, when I originally learned criminal procedure, there was a rather complex analysis one had to go through for probable cause related to vehicles. And I can't recall exactly what it was that the Supreme -- sort of just the Gordian knot and said cars are inherently -- or the automobiles are inherently -- there's apparently lower expectation of privacy, I guess, in automobiles because of their movable nature.
I'm just curious if there's an extent to which maybe what's going on, sort of, behind the scenes — consciously or unconsciously — is houses are houses. There are privacy rights related to the house and the curtilage and the like that are higher than other effects, as it were -- to go back to the Fourth Amendment language itself.
Robert Frommer: Matt, I jumped all over the first one, so I'm happy to let you take first crack. Otherwise, I have some response.
Matt Cavedon: Sure. No, I think it's absolutely conscious, and I think it's found itself into, over and over again, decisions -- the home is the paragon. It is the paradigm. It is the central example, the apex, of what the Supreme Court considers to be protected by the Fourth Amendment. The other things that manage to get close to that, in terms of their level of protectiveness, often get there by way of analogy.
So the home is your castle. The home is the place that you cannot even be arrested without a warrant -- barring very, very limited circumstances. The Court, for decades, has said this. The last major expansion that I can think of, of Fourth Amendment rights -- well, GPS tracking was significant, but even more significant than that, of course, with cell phones a few years ago in the Worley and Riley decisions. And what is that, the Supreme Court said, was the reason why they were giving such high protection to cell phones?
They said that it is analogous to a full-blown home. It is not just a place where you keep your financial records or your dating information or your biometrics or your personal correspondence, your photo albums, your contact lists, your political party affiliations, all these things are in your cell phone, and that makes them roughly the same thing as your actual physical home, perhaps even a little bit more so, if I remember Chief Justice Roberts' suggestion correctly. So the home absolutely does have a special exaulted place in Fourth Amendment jurisprudence.
Now, maybe the question within a question is, given that the Fourth Amendment itself lists houses, papers, and effects altogether. And given that a cell phone really is just an agglomeration of a lot of papers, is that fair? And I know Rob mentioned storage units, bank deposit boxes -- I'm sure he would also have in mind places of business, which have been a dispute before.
Robert Frommer: Yeah.
Matt Cavedon: It's a fair question, textually, as to whether the home deserves this sui generis treatment -- this one of a kind, special place. But it absolutely does hold that, and I don't think there's any contesting, that over about at least a century's worth of jurisprudence on search and seizure. The home is, capital S, special all the way through.
Robert Frommer: Yeah. I absolutely agree with you there that the home is special. I think what the Court ultimately needs to do, though, is take a step back from that because I understand the Fourth Amendment articulates how does papers, persons, and effects -- and it treats the house as particularly special. But I think at the end of the day that's because it is the locus. As you said, it's the apex, and that’s because it's the locus point. It's the focal point of all of our security. It's where we withdraw into our private life. It's where we keep ourselves secure and where we can engage in conversation and, basically, we can be ourselves.
That -- you can go back to the time of the Founding and you can read the commentary by people who are involved in the enactment of the Fourth Amendment, and it was clear that that was going on -- that the purpose -- the reason the home was number one because that was the focal point of your security. But, like I said, the fact that it is the focal point doesn't mean that we should diminish the security that you receive in other property where you have evidenced an intent to be secure -- to hold things close. I think a lot of the car work allow -- the decisions in cars about -- the decision that allows for warrantless searches of vehicles is Carroll v. United States. And a lot of that goes to, I think, ultimately the car is on a public road. It's out in the public right of way. It's a level of exposure to the world that does not exist with the home.
And then also at the same time, there's very practical reasons why you just can't get a warrant for a car quite the same way that you can for a home. Although, I will note that even that is changing. The Pennsylvania Supreme Court just recently — I think within the past few months — repudiated the Carroll doctrine of warrantless vehicle searches and held that, in fact, under the Pennsylvania Constitution you do have to get a warrant to search a vehicle -- unless, again, you can show exigent circumstances. So these things wax and wane, but I think the ultimate goal for the Court, and what the Court should be striving for, is to be not so dependent on particular places but to get to the underlying Fourth Amendment interests or values that each of those places contains and to protect them accordingly.
Matt Cavedon: What I will add is I recently did a write-up for The Federalist Society's State Supreme Court Watch on Commonwealth v. Alexander, which is a Pennsylvania Supreme Court case recently that held that the automobile exception does not apply under Pennsylvania constitutional law. One of the reasons why is that the court found that things and places, homes, etc. were all listed together in the state constitutional provision. They actually tried to distinguish that from the Fourth Amendment jurisprudence based on it -- I don't know how convincing that is.
But nevertheless, the argument that something other than location -- rather, something other than entity of thing should be the driving factor has begun to catch on in jurisprudence. I mean, that was a Pennsylvania decision overruling other decisions heard from earlier in the 2010s, and just that quickly, they were ready to do away with that and hold that automobiles at least enjoy some measure of protection analogous to homes and other more intimate places.
Robert Frommer: The very last point about this is that when you go back and you look at the -- from the time of the Founding, the language in the various state constitutions, whether it's houses, papers, persons, and possessions or effects or property, people nowadays like to look at those words and think they mean -- they hold great weight. They really don't. At the end of the day, you can go back and you can look at the original understanding, and despite whether one word was used or another word, what every single debate featured was the idea that we want to protect our security in our persons, in our property, against overweening searches by the government.
Caller 2: If I may, I don't know if I've been muted or not, I'm guessing not. Just a quick follow-up and maybe devil's advocate with respect to the last point there, but I'm wondering if it'd be a good little game of textualists or originalists FedSoc Bingo might be worthwhile trying to figure out whether that was an ordered set in the amendment. Because I think, if memory serves, it goes in -- it says persons, houses, papers, and effects. One can see a pattern. Now, I don't know if the history supports that or if any further textual analysis supports that, but I don't know -- interesting question and very interesting discussion, gentlemen. Thank you very much.
Robert Frommer: Thank you.
Guy DeSanctis: Thank you for that question. As of right now, it doesn't appear that we have any more questions. Is there anything else that either of you would like to discuss in the remaining time?
Robert Frommer: I'm excited to see -- I will say one last -- I am very excited to see where the Court is going to go over the next few years in the Fourth Amendment. We have seen the massive changes in the Fourth Amendment, really since I'd say the -- from United States v. Jones, the GPS case in 2012, up to the present day. It seems as if the Court is recognizing that some of the doctrines that have developed over the past 50 to 60 years, particularly in the lower courts, aren't sufficiently protective of people's rights, and it seems as if they are engaged in an expedition to help clean up some of the Fourth Amendment, which it desperately needs.
Matt Cavedon: Yeah. I think that puts it well. I'm curious to see where some of these trends go. I think that that tension between bright lines versus discretion, as it long has been, is going to continue to be one of the major fault lines. And I think that the issues that are being discussed in police reform movements are going to wind up coming into court, and a lot of these messy questions are going to be asked in new settings than just your traditional whether you can go in to arrest somebody or search for evidence. I think a lot of that has been settled, and so the next generation questions are going to be more along these issues of personal safety, mental health, emergencies -- gun emergencies, mental emergencies, physical emergencies. So I'm curious to see what the new era brings. It should be a very interesting next couple of years.
Guy DeSanctis: Thank you both for that. On behalf of The Federalist Society, I want to thank our experts, Matt Cavedon and Robert Frommer, for the benefit of their valuable time and expertise today. And I want to thank our audience for calling in and participating. We welcome listener feedback by email at email@example.com. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.