In last week’s decision in Case v. Montana, the Supreme Court held that police officers may enter private homes without a warrant to render emergency aid if supported by an objectively reasonable belief of an emergency. Justice Gorsuch added a brief concurrence on the originalist foundation of that conclusion:
Does the Fourth Amendment tolerate this limited emergency aid exception to the warrant requirement just because five or more Justices of this Court happen to believe that such entries are “reasonable”? Or is this exception more directly “tied to the law”? Carpenter v. United States, 585 U. S. 296, 397 (2018) (GORSUCH, J., dissenting). The answer, I believe, is the latter.
From before the founding through the present day, the common law has generally permitted a private citizen to enter another’s house and property in order to avert serious physical harm. In those circumstances, and many others, courts have historically held that property rights give way to concern for human safety. See, e.g., 37 Hen. 6, pl. 26; Mouse’s Case, 12 Co. Rep. 63, 77 Eng. Rep. 1341 (K. B. 1608); Respublica v. Sparhawk, 1 Dall. 357, 363 (Pa. 1788); Ploof v. Putnam, 81 Vt. 471, 474–475, 71 A. 188, 189 (1908).
Courts have long described property-law necessity defenses like these as turning, too, on the adequacy of the defendant’s judgment, not a post-hoc assessment of necessity in fact. See, e.g., Mitchell v. Harmony, 13 How. 115, 134–135 (1852); Stone v. Mayor of City of New York, 25 Wend. 157, 176 (N. Y. 1840) (opinion of Verplanck, Sen.); Surocco v. Geary, 3 Cal. 69, 72 (1853).
…
Today’s decision echoes both the common-law emergency aid rule and its limitations. It does so, to be sure, in the context of a law enforcement officer, not a private citizen, who sought to enter another’s home. But on this point as well the common law has spoken, long providing that officers generally enjoy the same legal privileges as private citizens. See, e.g., Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (C. P. 1765); 1 J. Chitty, Criminal Law 36 (1819); 2 M. Hale, Historia Placitorum Coronae 91 (1736). And, reflecting the common law here again, this Court has held that the Fourth Amendment usually permits officers lacking a valid warrant to “take actions that any private citizen might do without fear of liability.” Caniglia v. Strom, 593 U. S. 194, 198 (2021) (internal quotation marks omitted). But they normally may do “no more” than that. Kentucky v. King, 563 U. S. 452, 469 (2011); see also Entick, 19 How. St. Tr., at 1066.
It should come as no surprise that our decision today might accord with the accumulated learning of the common law—just as it should come as no surprise that our application of the Fourth Amendment ought to be informed by the common law’s lessons rather than mere intuition. For a period, to be sure, the miasma created by this Court’s Katz era led some to think the scope of the rights guaranteed by the Fourth Amendment depend on nothing more than current judicial instincts about “reasonable expectations of privacy.” See Carpenter, 585 U. S., at 394–395, 405–406 (GORSUCH, J., dissenting). But that confusion cannot last forever, for no one should think the rights of Americans hang on so thin a thread. Instead, and as Justice Story recognized, the Fourth Amendment is made of sturdier stuff, representing “the affirmance of a great constitutional doctrine of the common law.” 3 Commentaries on the Constitution of the United States 748 (1833).
Seems right to me, and with methodological significance beyond this particular case. I’m curious why Justice Thomas, at least, didn’t join.
Posted at 6:08 AM