In Caniglia v. Strom, the U.S. Supreme Court will decide whether the community-caretaking exception to the Fourth Amendment’s warrant requirement extends to the home. The general rule under the Fourth Amendment is that before police perform a search or seizure they must obtain a warrant. The community-caretaking exception, by contrast, allows police to search and seize without a warrant when engaged in community-caretaking activities that are entirely unrelated to the enforcement of criminal statutes.
The Supreme Court first created the community-caretaking exception in a case called Cady v. Dombrowski, which involved a crashed car that police towed to a private garage and then searched without first obtaining a warrant. The Court’s decision upholding the officers’ actions noted the differences between homes and vehicles, including that car accidents on public thoroughfares are a “nuisance” requiring officers’ immediate attention.
The First Circuit in Caniglia extended the community-caretaking exception to the home. Edward and Kim Caniglia, a married couple, had a disagreement one night in their Rhode Island abode. After Mr. Caniglia retrieved his unloaded handgun and asked “why don’t you just shoot me and get me out of my misery?” Mrs. Caniglia left and spent the night in a motel.
The next morning, Mrs. Caniglia had the police escort her home. The police believed Mr. Caniglia could be a threat to himself, so they wanted to take him to a hospital for a psychiatric evaluation. Mr. Caniglia agreed to go based on the officers’ promise that they would not take his handguns while he was gone. But once Mr. Caniglia was admitted to the hospital, the officers entered the home without a warrant and seized his guns, claiming the community-caretaking exception justified their actions. And the First Circuit agreed.
Now, the Supreme Court is poised to address, for the first time, whether this community-caretaking exception to the warrant requirement can be applied to searches and seizures within the home. The Supreme Court accepted the case on November 20, 2020 and will hear oral arguments on March 24, 2021.
Robert Frommer, Senior Attorney, Institute for Justice
Matt Cavedon, Assistant Public Defender, Northeastern Judicial Circuit
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Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls become a Federalist Society member today at fedsoc.org.
Evelyn Hildebrand: Welcome to the Federalist Society's Teleforum conference call. This afternoon, March 26th, we discuss the Supreme Court's oral argument in Caniglia v. Strom. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at the Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today, we are fortunate to have with us, Mr. Robert Frommer, a Senior Attorney at the Institute for Justice, and Director of the Institute's Fourth Amendment project. After I speak or give this 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. Robert, the floor is yours.
Robert Frommer: Thank you. Thank you so much, Evelyn. I want to thank you and The Federalist Society for inviting me to do this today. Today, we are talking about Caniglia v. Strom. A case where a domestic squabble could help clarify a critical part of The Fourth Amendment: whether government officials can enter your house without a warrant or consent if they're engaged in what’s known as community-caretaking functions.
Now, before I jump into the facts of the case, I want to do a little background here. And first, and everybody on the call is probably familiar with this, is the general idea of background of the Fourth Amendment. The Fourth Amendment is, really when you read into the text of it, it is about the right to be secure in our persons and property against unreasonable search.
And when you go back into the history, one of the largest big things that they were concerned about were warrantless searches or searches done pursuant to general warrants or laws that would allow officers to enter any house they thought might contain evidence of a crime or uncustom goods. The Fourth Amendment was supposed to clarify that absent prior judicial authorization like a warrant, most searches were unreasonable at common law.
The warrant had to specify the exact place to be searched in the justification. Now, there are sometimes, of course, when a warrant wasn't required. One of those being when there's exigent circumstances, when things are happening at such a pace that there's really no time to get a warrant, that there's an imminent action requiring immediate steps by the government.
Now, the community-caretaking function comes up in a somewhat similar capacity. It came up in a case called Cady v. Dombrowski. In that case, officers went to a car accident on a public right of way, and they towed the car off the public roadway into a lot. They thought that the person involved in the accident was a Chicago police officer. And they thought that, well, he didn't have his gun on him and we think that he's supposed to have his gun with him all the time so it must be in the car. So they went back to the car and did an inventory search in order to secure the weapon, and in the process found evidence linking that driver to a murder. Ultimately, the Supreme Court said the warrantless search of the trunk for the weapon was fine because under this community-caretaking doctrine, officers frequently have to do things like deal with car accidents and other public nuisances that pose a risk of harm to third parties.
Now, this case is about an evolution or potential evolution of the community-caretaking exception. It's important to understand the facts of the case. In August 2015, you have 68-year-old Edward Caniglia, and he's joking with his wife Kim who he has been married to 22 years, that he wouldn't use a coffee mug that his brother-in-law had used because he might "catch a case of dishonesty."
Unsurprisingly, that led into an argument. He got tired of the bickering, so Edward went into his bedroom, grabbed an unloaded handgun, came back, put it on the kitchen table and said to his wife, "Why don't you just shoot me and get me out of my misery?" Shockingly, this did not end the dispute. They kept arguing. Edward left to take a drive to cool off, but they kept fighting when he came back. So his wife, Kim, decided to spend the night at a hotel.
The next day, Kim phoned home, she didn't get any answer. So she called the police in Cranston, Rhode Island, asking if they could escort her home and perform a well-check on her husband. When they got there, the officer spoke with Edward on the back deck. According to their incident report, he seemed normal, was calm for the most part. In fact, he said he'd never commit suicide.
The officers didn't really ask him any factors about his risk of suicide or risk of violence, but despite that they still thought Edward could hurt himself. And so they wanted to take him to a local hospital for a psychiatric evaluation. Now, Edward initially refused insisting his mental health wasn't really any of their business, but he agreed to go so long as the police promised they wouldn't seize his guns while he was gone.
Well, there's no other way around it. They lied to Edward because after he left, they went in and lied to Kim and said that Edward had consented to the confiscation of his guns. Kim believing the officers, took them to the two weapons which they seized. Edward was almost immediately discharged from the hospital, and he reached out to the police to get his guns back. They wouldn't give them back.
So he ended up bringing a lawsuit, arguing that the officer's actions violated the Fourth Amendment. The district court disagreed. It held that the officer's actions were justified under the community-caretaking exception. And on review, the First Circuit affirmed. The First Circuit joined a number of other lower courts that have expanded that concept of community-caretaker exception into the home, circuits like the Eighth and Ninth Circuits.
They've said that since officers might have similar non-emergency duties in homes, just like they do with cars, which are divorced from any crime control, it's okay to allow warrantless entries there. Under the reasoning, it's fine for the officers to enter without a warrant so long as their actions for "within the realm of reason." The First Circuit really leans into this expansion.
It says that the community-caretaking doctrine is grown from its vehicle origins, and now it's a catchall for the wide range of responsibilities that police officers must discharge in their duties. So it says, well, because of this, and because these things aren't related to criminal investigations and prosecutions, it doesn't really make sense to have a warrant. What we're going to say is that it's reasonable for them to act.
And the way we're going to determine that is by balancing the need for the caretaking activity and the effected individual’s interest in freedom from government intrusions; in other words, a general balancing test. The First Circuit went on to say the officers just have to have solid non-investigatory reasons to go in. There doesn't need to be the type of immediacy that we typically require with exigent circumstances.
Essentially, the police, when they're in there, must act in accordance with "sound police procedure." Like the other circuits, the First Circuit said, ultimately, whether the officers' warrantless entry is justifiable or not, is reasonable or not, it’s really about whether their actions were within the realm of reason. So that's where it came up to the Supreme Court. And I have to say this was a wild and wooly argument that spanned over a hundred minutes.
It had both the petitioner on one side, and on the government side, it was both the State of Rhode Island splitting time with the solicitor general. Now, one thing that really struck me from the argument, is the extent to which the parties were really struggling with the hypothetical fact patterns that the justices were putting forward. And this started pretty early on.
One of the first questions from the Chief was to the petitioner. He asked if the police could enter the home of an elderly neighbor whose neighbors called up and said, "She's late for dinner. She's never late for anything. She's not picking up her phone," and that they're worried. When petitioner's counsel suggested that there weren't enough facts there for the police to say that they could enter, some justices were taken aback.
Justice Sotomayor, for instance, who's really no fan of excessive search and seizure said, for instance, "Counsel, I'd be hard pressed to think that any judge would not consider the hypothetical pressed by the Chief Justice as justifying a knock and entry.” But then when you start looking there, you might be originally thinking, oh, Sotomayor might be okay with the doctrine.
But when you start looking at the rest of her comments, it becomes clear that she thinks the facts presented in the Chief's hypothetical would be enough to justify entry under an existing exception to the warrant requirement, like exigent circumstances. Justice Kavanaugh, likewise, said to the petitioner that his response to the Chief's hypothetical about that elderly neighbor was somewhat startling. And he was worried that now allowing warrantless access could mean that people may get hurt.
There might be people who fell or injured or people who might be at threat of suicide who might not die. And, of course, for hypos, we always have the classic Stephen Breyer hypos coming in. This oral argument's version was about whether officers could enter homes if plague infested rats -- which I don't think have been seen in the continental United States outside of some small areas for decades, if not centuries. Could he go in if he saw a rat that he thought it was carrying the plague go into the house?
We dealt with that, but the hypos weren't just a difficulty for the petitioner. They were also something that really set the Court off when the attorney for the state got up. The real fun started when the Chief asked the counsel for Rhode Island another hypothetical. In this one, a cat gets stuck in a tree in someone's backyard, and the people who own the house aren't home.
The Chief asked if the police could hop the fence, go into the people's backyard, climb up the tree and get the cat. Counsel for Rhode Island said sure, because in his view, whether something's reasonable, again, just turns on balancing the individual's right to privacy against the intrusion. Since this is a pretty small intrusion in his view, it was reasonable. Well, that answer seemed to make a number of justices uncomfortable.
The Chief, for instance, remarked that, "At common law, and under our cases, the interest protected by the Fourth Amendment, I think are a little more significant for that." But in a response counsel for the state said that the common law was only concerned about criminal investigations and that none of the lessons from the common law were useful here.
Justice Alito reacting to that cat hypothetical said, "One of the things that's troubling to a lot of people about the caretaking exception is that it doesn't seem to have any clear boundaries. And when you tell us it can include getting a cat down from a tree is that fortifies that concern." Now I will note that the solicitor general wisely chose not to defend the state's cat answer. Instead, said that there would have to be unusually compelling circumstances to justify actions there.
Another hypo that came up that the state caused some controversy with, I would think is when Justice Barrett asked, "Well, let's say the police saw a home in a town with a high rate of COVID infections, where there were some people gathered inside and weren't wearing masks, could the police just go in and bust that up?" Again, the attorney for the state said, "Yep, absolutely could." So that really goes to show, at least in the state and the SG's mind, the breadth of this test and what it allows.
Now, another issue that came up in the case is the community-caretaking exception, and whether it really makes sense to apply a doctrine that started in the vehicle context and apply it to homes. Justice Thomas asked about how that rule really made any sense, applying that rule because in Cady, they took pains to talk about how vehicles were unique and posed unique threats.
The counsel for the state said in response, again, that there was really only one standard – reasonableness. And that even if Cady v. Dombrowski was originally a vehicle case, there's no reason that we can't import its reasonableness analysis into the homes context as well. Likewise, Justice Kagan pressed on the difference between cars and homes, saying to the counsel for the state that, “I think that under the Fourth Amendment, it's the home that's special and the automobile that's distinctly not.”
And another thing that arose a lot was whether administrative warrants could serve as a substitute to warrantless entry. Like in a situation where you have time to go get a warrant, could we get an administrative warrant for well checks or things like that? Counsel for the solicitor general said no because there's no warrant process in a lot of these non-investigatory situations.
But that didn't really seem to draw much traction with the Court. Some justices, though, didn't struggle to have what probable cause would look like outside the criminal context. Justice Barret said, for instance, "It sounds odd to my ears to talk about probable cause, to think that someone would benefit from help, right?" But as the attorneys has pointed out, the Court has blast administrative warrants before.
For instance, in an important case called Camara and another case decided the same day called See. Justice Kagan asked if there were administrative warrants that could handle this kind of situation, to which counsel for petitioner pointed out that in many states there are red flag laws and involuntary commitment laws where you can go to a judge, say someone's being a danger to themselves or others, so we either need to remove the weapons from their possession or commit them. The petitioner also agreed that a similar law like that with an administrative warrant could cancel the facts and the Chief's old neighbor hypothetical.
A lot of people who were pushing and saying, okay, administrative warrants look, okay. This looks like a good alternative. But, interestingly, then Justice Gorsuch seemed to come and really attack the idea of them. Saying that if the government can just get an administrative warrant to come in and test for illness, to check the temperature of the house, whether it's too hot or too cold, etc., what's left of the Fourth Amendment? Which is just that at least for the home and perhaps elsewhere, that Justice Gorsuch is skeptical of allowing entries into private property, just to further self and safety interests. We'll have to see what happens with that in the months and years to come.
But, ultimately, I think the crux of the case is going to turn on what one particular word means: unreasonable. Because that was the key dividing line between the petitioner on the one side and the state and the SG on the other. The state and the SG view reasonableness as how you and I would view reasonableness – that is it reasonable or not? So the counsel for the state said, for instance, it'd be okay for an officer to enter as long as they have an objectively reasonable belief that their help was needed.
Likewise, the SG’s office said the Fourth Amendment -- it was reasonable to enter so long as if someone's at risk of serious harm, and it's reasonable for officials to intervene now. But on the other hand -- so that's a fairly free-floating balancing of interests, reasonableness. And we see that in some of the Court's case law, mostly the cases from the '70s, '80s, '90s, in the period immediately following the developments of the reasonable expectation of privacy standard from Katz.
On the other side, we have an idea that unreasonable is defined in terms of common law. Something is unreasonable if it is a search or a seizure that would have been against the common law as it existed in 1791. And there's some scholarship on this point, suggesting that that is the way to read it. Now, whether you choose, you can see that the difference between choosing this free-floating balancing test, where reasonableness is basically what you and I think about reasonableness versus a test that is tied to the common law as of 1791 will end up yielding very different results.
So I think what we've seen is that in some instances, this general weighing of interests has showed up in common law, where common law authority has been sparse. But as the Court's decision just this Wednesday in Madrid v. Torres makes clear whether the common law speaks on a Fourth Amendment merit, we generally follow its approach.
It was a fascinating argument. We're definitely going to see multiple opinions on this. But I'd love to hear your questions about the argument and where we think it's going to go in the months to come. So if we could take questions, I'd be appreciative, Evelyn.
Evelyn Hildebrand: Wonderful. We'll now move to audience questions. And while we're waiting for audience members to join the queue to ask a question, I wanted to ask if you had a prediction for how you think the Supreme Court is going to decide this, if you had to make a guess.
Robert Frommer: Yeah. Well, I mean, I'm in the guess-making business. I think the petitioner is going to win. I think that the decision of the First Circuit is going to get reversed. The reason I say that is because the Court -- and if you look at the Court's precedents or recent decisions, it is really tying itself, and I think correctly, to common law. What was the issue in common law? What could the government do at common law?
And at common law, it was pretty clear that absent a warrant, consent or exigency, the government just couldn't come into your house, period. I mean, there's some small rules about like arresting felons and stuff like that, but in the main, the rule was absent of emergency, they can't bust in without a warrant. I think that is probably going to carry a good number of members of the court, particularly, when you look at the general balancing test put forward by the state, the solicitor general's office and the First Circuit.
What we've seen with these balancing tests, unfortunately, is it reduces our rights under the Fourth Amendment to a mere privacy interest, which undersells the importance of a constitutional right. And it's always set up so that the one person's privacy interest is then placed in opposition to the government's broad interests in either criminal investigation or remediating nuisances or things like that.
Long story short, when you do a balancing test like this over and over again, it leads to the government being able to do what it wants. And I think what's interesting is, you could even see this in the argument. The SG’s office was asked about a number of cases decided by lower courts under the community-caretaking exception and various circuit precedents, and was asked like, here are the facts of this case, was the government's warrantless entry justified by the community-caretaking exception?
And at least the first two to three circuit cases discussed by Justice Kagan and put forth to the SG, the SG’s office had to disclaim them. They had to say, no, those should have called on help to come out the other way. Of course, then that makes you realize, well, we really opened up this can of worms we’re just going to get more opinions like this one. More opinions like the one the SG's office wants to disclaim.
So I think that's going to cause the Court to say, this is too open-ended and it's too malleable of a standard. It’s too grave of a threat. And so we're just going to stick with the common law approach and say, absent exigency, go get a warrant.
Evelyn Hildebrand: Great. I was wondering, maybe you could speak to this a little bit, during your remarks, you said that the petitioner's wife had consented to -- or to the police told her that he had consented to the seizure of his guns. And I'm wondering if her consent at that point, even though it was not completely informed, if that played a part at all in the argument, or if that played a part in the litigation if her consent would be enough to allow for the warrantless seizure.
Robert Frommer: There was a decent amount of discussion about that in the First Circuits opinion. In that opinion, it was not quite clear whether it was consent or not, because they said, okay, the consent here, she did consent. But the consent was really premised on a misrepresentation by the police.
And what the First Circuit said, what Judge Selya said in his opinion is, it's probably the safest to assume that this was not consent, that this was unconsented, that the misrepresentation term vitiated any consent that she might have provided. I mean, which makes sense, particularly given the misrepresentation that was at issue here. Edward explicitly said, don't take my guns. So what did the police do?
They walk into the house and they tell Kim, his wife, “Oh, Edward said, we could take the guns.” So that's about as bad of a misrepresentation as you can have in terms of vitiating consent, because the entire justification for the seizure or for giving them the guns is out the window.
Evelyn Hildebrand: That's interesting. Do you think that for marital property then had she known that she had not consented, would her consent alone be enough to offer a seizure?
Robert Frommer: Now that's a fascinating question. If they had just said to her, “Look, we took Edward to the hospital,” they don't make any misrepresentation about what he consented. They say something to Kim, like, “It seems like he's having some troubles. Maybe it'd be best if we took the guns for the time being.” And if she said at that point, “Yes, I agree with you,” then I think at that point, then that part of the case goes away.
I think at that point, that part of the case goes away because, again, even at common law, what do we require? We require consent, a warrant, or an exigency, and then that would be actual consent. They didn't lie to her, they didn't misrepresent anything. They said to her, “Okay, we think this might be something you might want to think about doing.” And she agrees. So I think that would have gotten -- I don't think that would have resolved all the issues in the case, but I think it would have definitely resolved their authority to seize the weapons absent of a warrant.
Evelyn Hildebrand: Interesting. Great. I do have another question if you don't mind. I wanted to ask, there's been a lot of discussion in rethinking police departments across the country, and perhaps either adding or substituting social workers in responding to 911 calls especially in the context of mental health issues. And I'm wondering if that addition maybe to a police force or however you want to phrase it, what would that do to the Fourth Amendment?
Robert Frommer: Well, it's interesting. There was actually a line of conversation that came up about this. As you’ve point out, some people have said maybe we should be sending officials other than police officers to some of these things like mental health professionals. And I believe it was Justice Barrett, and I might be wrong about that. So if I am, I apologize. But she was asking, well, what if we sent people who are better equipped to understand whether someone's having -- is a threat to suicide or a threat, something like that, like social workers.
And what she asked is, would it be okay if we sent them in under this community-caretaker exception? In other words, we don't have a full exigency because there's no imminence, but there's no threat that something's going to happen imminently unless the government acts. Can these social workers go in? There was some back and forth and pushing around.
I think ultimately what the Court realized is that, that might be a better idea in terms of policy, in terms of actual outcomes on the ground, but from a constitutional perspective, these are still government agents and they would still be using essentially their authority to enter your home against your consent.
So it was an interesting back and forth, but they ended up back at the same place, which is that they would need probable cause and exigent circumstances to get in. The petitioner was viewing that as a global requirement, that when the government wants to enter your home and he or she doesn’t have your consent, a warrant, or exigent circumstances and that's it. And it doesn't matter what hat the government official's wearing when they try to walk in.
Evelyn Hildebrand: That makes sense. Great. Do you know of any other cases in the offing, I suppose, depending on the outcome, it would certainly change or affect how police are able to go about doing their jobs? Or do you know of other specific cases that are going to rely on this outcome?
Robert Frommer: Well, I think an interesting thing came up during the argument, was that a case that just got heard last month, Lange v. California, that if the Court ruled in favor of the government here and said that there was a community-caretaking exception, one of the arguments was that it would essentially wipe away the entire issue that is at issue in Lange. Which is if the police can enter a home without a warrant, if they are in hot pursuit of someone who they believe has committed a misdemeanor offense.
We filed a brief in that case. I'm happy to say that we're at least being consistent. We said that no, that absent consent or a warrant, you need to have actual indicia of accidental circumstances that there's some reason you need to go in now, and that you can't get a warrant, that you have to act right immediately.
But the petitioner, I believe in response to a line of questions from Justice Gorsuch, pointed out that look, if this community-caretaking exception is really viable, then that blows the entire issue in Lange off -- out of the water. Because in that instance, the police officer who's in the supposed hot pursuit, could always claim that they had some reasonable belief that the health and safety of the people inside the home that they chased the suspect to, would be imperiled absent of them going in and resolving the issue.
And that seems fair, right? Because as Justice Gorsuch pointed out during the discussion, doesn't pretty much every government action touch upon health and safety in some way, or have some health and safety component, which does seem to be the case. So the concern is that if this community-caretaking exception comes in, it's going to upend a lot of areas of well-established Fourth Amendment law, including cases that are currently before the Court. It could mess everything up for lack of a more precise term.
Evelyn Hildebrand: That's fascinating. Thank you. I think I will hand the floor over to you now for any final remarks that you would like to make, and then we will close out shortly after that.
Robert Frommer: Well, ultimately, the purpose of the Fourth Amendment is to secure our persons and property, and consistent with the way the common law protected the people from unreasonable searches and seizures at 1791. That common law didn't let the government in very easily. It only let the government in when there was a warrant or a true emergency.
Watering down that standard to an officer being able to enter whenever they think it's objectively reasonable seems to give them the kind of power that the Founders of the Fourth Amendment were trying to prevent, the arbitrary exercise of search and seizure power. So I expect that the that the petitioner will prevail in this case, and the Court will continue to take strides as it has throughout this term to increase Fourth Amendment protections both in the home and outside.
Evelyn Hildebrand: Wonderful. Thank you. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in. We welcome listener feedback by email at firstname.lastname@example.org As always, keep an eye on our website and your email for announcements about upcoming Teleforum calls and virtual events. We do have one coming up this afternoon. 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.