“Possible cause”: Court seems poised to allow warrantless community caretaking entries into the home
on Mar 28, 2021 at 5:56 pm
On Wednesday, the Supreme Court heard argument in Caniglia v. Strom over whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home. For a case one expert commentator deemed “small,” much was at play here, as evidenced by the simulacrum of interests: fallen senior citizens, crying infants, suicidal suspects and treed cats. At times, the sturm und drang was palpable.
The case stems from a 2015 incident in Cranston, Rhode Island, in which police performed a “wellness check” on Edward Caniglia after his wife reported that he might be suicidal. After arranging for Caniglia to be taken for a psychiatric evaluation, officers entered his home and confiscated his two handguns. Their justification for the warrantless search and seizure was that they believed Caniglia posed a danger to himself and others. Caniglia sued for violations of his constitutional rights, and the U.S. Court of Appeals for the 1st Circuit sided with the officers. The 1st Circuit applied the community caretaking exception (which originated in Cady v. Dombrowski in the context of the search of a car) and extended that exception to the home.
Shay Dvoretzky, arguing on behalf of Caniglia, began with a straightforward, longstanding, constitutional premise: The Fourth Amendment protects the sanctity of the home; warrantless entry absent consent or exigency is unreasonable. Here, the government had neither, making unconstitutional its search of Caniglia’s home, seizure of his person, and confiscation of his lawfully possessed weapons. The 1st Circuit’s application of a warrantless exception that authorizes the search of a lowly impounded vehicle to the constitutionally superior realm of the home should be reversed, Dvoretsky said, as it is contrary to the Fourth Amendment and the court’s cases.
Chief Justice John Roberts offered Dvoretzky a hypothetical victim: a missing, punctilious, elderly woman, whose absence at dinner with the neighbors prompts them to call the police. If her relatives are unreachable and the police enter her home through an open door to check whether she is lying on the floor, is their entrance unreasonable under the Fourth Amendment? Dvoretzky responded yes, absent consent or an objectively reasonable basis that an exigency exists. Roberts continued: Can they go in without a warrant 24 hours later? No, said Dvoretzky. Roberts pressed: During those 24 hours, “Maybe she dies?” Dvoretzky, unmoved, asserted that mere passage of time is insufficient: “It comes down to whether the police have an objective basis to think that there’s an emergency that requires them to go in.”
Roberts took a different tack. Do community expectations matter when applying the community caretaking exception? Roberts pondered whether Mayberry expects Andy Griffith (but not a “Kojak”) to, presumably, enter their homes without a warrant to caretake? Dvoretzky responded, “I don’t think that police would have different license to enter the home without a warrant based on those sorts of considerations, no, Your Honor,” which deftly sidestepped the question’s inadvertent, albeit brief, acknowledgment of at least one elephant in the room, i.e., that policing and Fourth Amendment protections differ in different locations.
Justice Clarence Thomas wondered about the black letter law, i.e., “what are the words in the Fourth Amendment that preclude a wellness check?” If police find a fallen, broken-hipped, floor-bound, unconscious senior citizen, Thomas asked, can she sue the officer after he enters her home per her neighbor’s concern but without a warrant? Dvoretzky responded that the post-warrantless entry discovery of her may not absolve the officer’s liability; however, the “emergency aid” exception – which presumes objectively reasonable basis to enter without a warrant – would satisfy the Fourth Amendment in that case.
Next up, Justice Stephen Breyer opined that the exigent circumstances exception to the warrant requirement obviously applies to Caniglia’s facts and “so many situations where it is obvious that the police should enter” a home. Breyer offered an example of one those situations: “where a baby has been crying five hours; nobody seems to be around.” He then offered two additional “obvious situations in which the police could enter” a home without a warrant, both of which would have stymied a lesser advocate: the prospect of Bubonic Plague-carrying rats fleeing a home (see the court’s 1959 decision in Frank v. Maryland), and a Typhoid Mary-like visitor who accesses the homes of unsuspecting, vulnerable senior citizens, ripe for fatal infection by a “serious communicable disease” (see the ongoing pandemic). Breyer insisted that “if we call those exigent circumstances, we weaken the exigent circumstances [exception]!”
After an audible beat (or two) of almost certainly startled silence, it seemed to occur to Dvoretzky that perhaps the 82-year-old eldest member of the court had inadvertently displayed a frisson of fear spawned by trying to survive an ongoing pandemic that has disproportionately felled the elderly when he conflated the facts of the court’s overruled Frank v. Maryland decision — which upheld the conviction of a homeowner who refused to permit a warrantless inspection of his rat-infested premises – with the threat of (asymptomatic?) COVID-19 spreaders. Though Camara v. Municipal Court overruled Frank, perhaps Breyer’s “legal dilemma” was this: not characterizing these and other similar situations as “exigencies” impossibly limits the exigent circumstances exception and, essentially, renders it impotent in a modern world with dangers that may require protective warrantless governmental conduct inside the home. Nonetheless, Dvoretzky held fast to the court’s jurisprudence and attempted to lure Breyer toward the doctrinal and away from the hypothetical. It did not work, as Breyer was uninterested in the extant exactness of exigency. “Too narrow!” Breyer exclaimed more than once.
Justice Samuel Alito began by criticizing the parties’ issue-framing and pressed Dvoretzky on the quantum of evidence needed for a permissible, warrantless, nonconsensual search of a hypothetical suicidal (but not criminal) suspect’s home. What quantum of evidence supports a warrantless entry into a vulnerable person’s home who may be the subject of abuse, Alito asked, “probable cause, reasonable suspicion, or something else?” Dvoretzky alerted Alito to the existence of criminal elder abuse, i.e., probable cause in his hypothetical. Alito asked another hypothetical: If a child seeks police help with a geographically distant parent with dementia whose caretaker is nonresponsive, can the police go in the parent’s home without a warrant? Yes, said Dvoretzky; that, too, would constitute probable cause to seek a warrant based on criminal suspicion.
Justice Sonia Sotomayor answered the chief justice’s hypothetical about the missing punctilious elderly woman, asserting that both the exigent circumstances and emergency aid exceptions to the warrant requirement would apply. Dvoretzky agreed, but noted that the officers here hung their hat on the community caretaking exception and waived exigency or emergency aid as possible bases for appeal. Sotomayor then began to sharpen the point of Breyer’s inquiries, i.e., though the officers characterized their conduct as “community caretaking,” what they did – versus what they called it – was, in fact, exigency or emergency aid exceptions. However, Dvoretzky noted, the officers’ imminency problem remains, as there was no “true emergency” or need for “immediate action,” given that Caniglia had been removed from the premises.
Justice Elena Kagan explored the possibility of non-criminal administrative warrants, workable schemas, and the proper quantum of evidence to support warrantless governmental home entries. Dvoretzky noted that judicially derived probable cause is the gold standard; Kagan, however, indicated that she sought what would be constitutionally permissible, not the gold standard, citing some states’ reliance upon “red flag laws” (which authorize governmental seizure of guns in control of suspects who may harm themselves or others). Dvoretzky noted that key to any schema is a neutral decisionmaker, not officers on the scene.
Justice Neil Gorsuch wanted to know, given the officers’ waiver, whether the court need even address the exigency or emergency aid question. Dvoretzky concurred but reminded the justice that his client seeks the court’s decision on the 1st Circuit’s application of the community caretaking exception to the search of his home and seizure of his guns. Gorsuch attempted to gauge Dvoretzky’s concurrence with the test set forth in an amicus brief filed by the federal government: “reasonably necessary to protect health or safety.” Dvoretzky regarded it as contravening and cannibalizing the court’s Fourth Amendment doctrine and precedent. Gorsuch wondered how non-criminal administrative warrants that authorize home entry are not similarly culpable, asking, “What’s left of the Fourth Amendment?” Dvoretzky recited the traditional reasons why warrants are preferred: notice, neutrality, detached decisionmaker, lack of arbitrary officer’s determination. Gorsuch proclaimed: “Pretty ‘law of the land’ there, counselor!”
Justice Brett Kavanaugh, returning to the specter of fallen senior citizens and suicidal suspects, asked when can police who are summonsed to check on at-risk populations enter a home, given alarming death-by-falling and suicide-by-gunshot statistics. Why was Kim Caniglia’s seeking police help for her husband’s potential suicide insufficient to allow police to enter the Caniglia home without a warrant? Dvoretzky reminded that police actually “found [Caniglia] okay.” Kavanaugh was unconvinced, warning that the “starkest form” of Dvoretzky’s argument “is not a good result” and will chill the conduct of officers who are eager to assist, given that “time is of the essence.”
Justice Amy Coney Barrett pondered, consistent with the Fourth Amendment, what a neutral decisionmaker might look like in the circumstances of administrative warrants: “It sounds odd to my ears to talk about probable cause to think that someone would benefit from help,” given that such antecedent justification is used in the context of criminal investigations. Dvoretzky was quick to point out that probable cause is also the standard in administrative inspection schemes, including those reflected in Camara.
The officers’ argument
Next up was Marc DeSisto, who argued on behalf of the police officers. His opening sentence was compelling:
The question presented is whether caretaking by police officers and first responders may under certain circumstances take place in the home without a warrant. It should.
In addition to conflating law enforcement with emergency care personnel, DeSisto pitched officers’ need to respond to an exigency or emergency that “could be immediate” which — by the terms of his argument – invited the court to identify and create a window of pre- or proto-imminency opportunity in which the government could act without a warrant. DeSisto negatively characterized Dvoretzky’s cleaving of the extant exigency and emergency aid exceptions as an “all or nothing approach,” which simultaneously managed to cast doubt upon the reasonableness of the court’s own case law in this realm. DeSisto proffered that the risk Caniglia posed to himself or his wife should have sufficed as a “potential” harm where “the need to respond could be immediate.”
But this was not all DeSisto requested of the court. Sharp ears may have picked up on a second tacit request: a new level of antecedent justification that can only be defined as “possible cause.” Possible cause exists “when the advent of the potential harm is not so clear, but the need to respond could be immediate, time could be of the essence.” Per DeSisto’s argument, that the harm has not yet occurred, is not imminent, but, at some point, it could be, gives officers a constitutional basis to conduct a warrantless community caretaking search and seizure within the home. It was an extraordinary ask.
Roberts, however, was more interested in DeSisto’s answer to his hypothetical: An absent neighbor’s cat is stuck in a tree and an observer calls the police to retrieve the animal from the neighbor’s fenced backyard. “Is that community caretaking?” DeSisto answered yes. Roberts corrected him, invoking (without naming) the home’s curtilage, an area that receives Fourth Amendment protection on par with the home. Besides, the chief justice noted, the cat would eventually come down on its own (clearly evidencing familiarity with the species).
Thomas noted Cady governed impounded cars, not homes. DeSisto invoked Cady dicta to decouple the exception from the facts. Thomas seemed unconvinced.
Breyer worried about the breadth of the officers’ position in reading “reasonableness” into the community caretaking exception. “We’re looking for subsidiary standards,” Breyer asserted. Noting Rhode Island’s new, post-Caniglia statute that provides a “reason to believe” standard that authorizes seizure of suicidal suspects without a warrant, Breyer asked several times whether that standard would satisfy the Fourth Amendment. DeSisto ultimately relented: “Yes, yes, I agree.”
Alito, noting DeSisto’s (wrong) answer to the chief justice’s treed cat hypothetical, asked: “Can we narrow this down … to preventing life-threatening injury, or serious injury, or some definable quantity of property damage?” DeSisto was reluctant. Alito then asked about the quantum of evidence that would suffice. DeSisto rejected probable cause, asserting that it is limited to only criminal contexts.
Sotomayor picked up where Alito left off and noted that her reading of the lower courts’ community caretaking cases had left her confused as to the exception’s coverage, given the variety of factors and circumstances to which it has been applied. Moreover, Sotomayor noted, no matter the quantum of suspicion, Caniglia’s officers ignored the facts, i.e., the absence of exigency. “Tell me: What’s the limiting principles?” DeSisto cited his “objective reasonableness analysis,” which Sotomayor quickly rejected, given the actual officers’ conduct to the contrary.
Kagan questioned why the officers didn’t make either the exigent circumstances or emergency aid exceptions arguments. DeSisto confessed that “the timing of the potential harm” was indeterminable, which foreclosed exigent circumstances and emergency aid as options. Kagan circled back to the Cady concern raised by Thomas, given that the community caretaking exception – heretofore applicable only to impounded cars — seemed misplaced, given that “the home is special and that the automobile is distinctly not.”
Gorsuch cited the common law necessity doctrine that privileged private “helping” trespasses and likened it to today’s exigent circumstances; he asked DeSisto if he knew of a common law authority that privileged trespasses, absent exigent circumstances. DeSisto instead cited the Restatement of Torts. Gorsuch, uninterested in that authority, interrupted DeSisto and asked why exigent circumstances do not apply to the underlying facts of this case. DeSisto offered the officers’ lack of certainty regarding the requisite timing of the imminency’s harm.
Kavanaugh wondered if Caniglia’s case was simply “a confusion in nomenclature,” i.e., the 1st Circuit’s misnaming its application of the emergency aid exception (a position taken by nine states in an amicus brief). DeSisto understood the states’ position; however, he distinguished exigency as “reactive” and community caretaking as “proactive” and, per the facts below, inapplicable.
Barrett asked how, under common law, DeSisto justifies the officers’ seizure within Caniglia’s home. She posed a hypothetical that included entering Caniglia’s home and finding a methamphetamine laboratory and asked if police could have seized items therein. DeSisto responded in the affirmative, citing the “plain view” doctrine, which allows for seizure of items evidencing immediate criminality. Changing the hypothetical to a noncriminal matter, Barrett asked if police see inside a home a mask-free crowd in a jurisdiction that has invoked a non-criminal, penalty-free mask ordinance, given the jurisdiction’s high rate of COVID infection: Can the police enter under the community caretaking exception to the warrant requirement? DeSisto answered yes.
The federal government’s argument
On behalf of the United States, which argued as amicus curiae in support of the officers, Assistant Solicitor General Morgan Ratner distinguished the facts of this case as “fundamentally different from most of the court’s Fourth Amendment cases.” She summarized: “The question is not act now or get a warrant first; it’s either act now or not at all.” Why? Because “there is no warrant process in a lot of these non-[criminal] investigatory situations.” If someone is at risk of serious harm, Ratner argued, then it is reasonable to intervene now; there is no calculus, minimum quantum of proof, or warrant process invoked. She identified only a reasonableness standard by which the court has evaluated non-criminal inspections like those at issue here.
The chief justice sought Ratner’s thoughts on his treed cat hypothetical; she politely deferred, choosing instead to center human harm, even when the chief justice invoked the terrifying image of water dripping on a Van Gogh. He asked: “Why aren’t you arguing for an exception? It’s not community caretaking; it’s objectively reasonable grounds to believe life is in danger?” She averred that such a fact-specific test may make sense, given that the community caretaking exception is too bound by Cady’s facts.
Thomas noted that some individuals simply would rather the government not enter their home, even when the entry is a well-meaning attempt to offer help. He asked Ratner for an appropriate historical analog or example that would, nonetheless, allow entrance. Ratner had a ready reference: “the duties of a constable,” which, at common law, included both a peacekeeping role and a law enforcement role. The former did not require a warrant to enter a home; the latter did. Thomas noted the extant exceptions could accommodate Ratner’s common law analog; he did not understand why the court would create a new exception. Ratner offered that the extant exceptions maintain a too stringent timing requirement.
Breyer asked why not take this case “as a common law case” and proffer Rhode Island’s recently promulgated statute as an appropriate standard. Ratner wanted the court to clarify “imminence”; Breyer deferred and, instead, asked Ratner how she would. She was ready: “a current ongoing crisis for which it is reasonable to act now.” Will this be the new standard/refinement?
Alito asked Ratner about affording the community caretaking exception substance beyond her proffered standard. She added “serious physical harm” would also serve a determinative quality in a non-investigatory intervention to prevent the risk, and the quantum of evidence would be specific to the facts.
Sotomayor, untroubled that Caniglia himself was seized (given that officers had reason to believe that he was a risk and there were exigent circumstances), remained troubled that officers had no basis upon which to enter Caniglia’s home, search, and seize his guns. She asked Ratner what to make of this governmental conduct — specifically, their second seizure. After noting that the lower courts determined the police violated Caniglia’s due process rights with respect to the return of his guns, Ratner concluded that, though their entry and seizure of his guns was a close call, it was ultimately reasonable.
Kagan asked Ratner about the community caretaking exception’s application in several lower court cases. Though Ratner believed officers lacked justification in the cited cases for warrantless entry, she also regarded the identified cases as outliers.
Gorsuch sought clarity around the common law trespass rule and its necessity-based harm. Ratner said the community caretaking exception possibly “tripped up” some of the lower courts.
Kavanaugh asked Ratner to complete the following sentence: “Our proposed rule is consistent with common law because …” Ratner replied: “Because the common law drew a line between government officials acting in an investigatory and a non-investigatory capacity, and when they were acting in a non-investigatory capacity, they were allowed to enter homes without warrants in order to address a need, a reasonable possibility of disturbance or serious physical harm.”
Barrett asked what common law trespass rule justified seizing Caniglia’s guns. None, Ratner responded. But she did not want to limit the government to common law rules that applied to private citizens. So, Barrett began, “once you’re in … ?” Ratner responded “of course” plain view applies. “Even if their reason to enter the house is to seize the gun?” Barrett asked. “Yes,” Ratner answered, so long as governmental conduct is “reasonably tailored to the non-investigatory justification” for why they entered the home.
The chief justice offered Dvoretsky additional rebuttal argument. But before Dvoretzky began, the chief justice asked whether he was concerned that Caniglia’s case relied so heavily on the lack of imminency. What about cases where the exigency is not imminent or the emergency is not urgent? Dvoretzky stressed that the “carefully defined temporal limit” of both these exceptions is canon; moreover, it serves as a guardrail against police pretext, the elimination of which risks officer abuse.
Kagan asked Dvoretzky to consider the merits of Ratner’s substantive concerns and proffered “not-necessarily-imminent-harm” standard. Dvoretzky maintained that imminency as a constitutional standard is determinative; the timing element of the extant exceptions should not be diluted. Exigency means what it means; allowing non-exigent circumstances to supplant true exigencies would contravene the court’s precedent and harm privacy interests protected by the Fourth Amendment. Besides, Dvoretzky noted, states have developed administrative warrant schema to address less-than-imminent harm concerns; those should be employed. Kavanaugh, noting officers’ need to make split-second decisions, seemed impatient with Dvoretzky’s insistence that home entry without consent or a warrant requires imminency.
It was, however, Sotomayor who had reached her limit with Dvoretzky’s unwavering adherence to the extant law. She chastised him both for “going too far” and for what she seemed to regard as his failure to offer a rule that would allow for warrantless home entries for potential imminencies: “Why can’t you see the difference?! Why can’t your rule articulate that difference in a more reasonable way?”
A ruling in the case is expected by summer.