At Volokh Conspiracy, Orin Kerr: Thoughts on Case v. Montana and the Standards for the Emergency Aid Exception. From the introduction:
It’s been a long, long time since the Supreme Court heard argument in a real Fourth Amendment case. This Wednesday, the Court will finally break the spell with argument in Case v. Montana. …
… William Case, who lived in a small town in Montana, called his ex-girlfriend and threatened suicide. The police in the small town all knew Case and his mental health problems, and they had reason to believe from past interactions that he was planning “suicide by cop”— a shoot out with the police when they checked on him. Officers eventually decided to enter his home with their guns drawn.
The question in Case is the legality of the officers’ entry, and in particular, what’s the specific standard for entry under the emergency aid exception. Case argues that entry under Brigham City‘s objectively reasonable evidence standard requires probable cause of an emergency. The state argues that probable cause isn’t needed, and that all the officers need is an objectively reasonable belief that they needed to enter to render emergency medical aid.
And on the originalism aspect of the case:
As I blogged last December, back at the cert stage, one of the things that makes Case unusual is that there’s actually a lot of common law authority on the standards for emergency entry. A key question to look out for is how much the Justices focus on that authority. As Justice Scalia emphasized in Kyllo v. United States, the Fourth Amendment must be interpreted to ensure “preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” And the common law standards of search and seizure have long provided the Fourth Amendment baseline of what is “reasonable,” especially where there is “precise guidance from the founding era,” as Riley put it. Given the originalist turn at the Court in recent years, that history may matter a lot.
But there’s a very different approach Justices might take instead. The concurrences in Caniglia suggest that at least some Justices are likely to have quite strong instincts about what kinds of entries officers should be able to make. I think it’s fair to say that those views are rooted not in history but instead in the Justices’ view of common sense and what amounts to reasonable and sensible police practices. It’s not obvious that the history and a particular Justice’s view of sensible police practices will happen to line up. So one thing to watch for is what particular Justices will care about more. Are they focused on figuring out what the 18th Century authorities say, or are they focused on finding a standard that matches their intuitions about what the police should and should not be able to do?
Posted at 6:16 AM