At Volokh Conspiracy, Orin Kerr: New Cert Petition on Emergency Entry: What Was the Common Law Rule? From the introduction:
A cert petition was recently filed at the Supreme Court in Case v. Montana on the Fourth Amendment standards for entry into a home to help people in an emergency. The question presented:
Whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.
The petition does not address the original public meaning of the Fourth Amendment, or the common law rules on this issue. But this is one area where there are common law authorities on the question, and they seem pretty home-protective. Given the Supreme Court's increased interest in originalism, I thought I might blog about what the established rule was for this issue at the time of the adoption of the Fourth Amendment, which presumably would inform what would have been understood as an unreasonable search and seizure.
And from the conclusion:
… [C]ombining the Hawkins rule from his Pleas of the Crown with the rule from Hale's Historia Placitorum Coronæ, I take the common law authorities to suggest some significant certainty about whether the "affray" is happening inside the house before the constable can enter. Hawkins says the constable has to hear or see the big fight. Hale says it needs to be "likely" that there will be manslaughter or bloodshed, something that to me sounds more suggestive of a probable cause standard. Hale's mention of noise coning from the house seems consistent with a high certainty, too. The constable would hear the noise himself, being sure of it.
I'd need to look in a lot more detail to be sure of this. But at least on a quick look, it appears that there's significant common law support for the idea that the government needs a significant likelihood of harm occurring before entering the home.
Posted at 6:07 AM