Case v. Montana

JUSTICE GORSUCH, concurring.¶verify

Today’s case, like another before it, holds that police officers generally do not violate a person’s Fourth Amendment rights when they enter his house without a warrant, but with an ''objectively reasonable basis'' for believing someone inside is in physical danger and in need of immediate aid. Ante, at 7 (quoting Brigham City v. Stuart , 547 U. S. 398, 400 (2006)). Importantly, the Court observes, this exception to the warrant requirement permits entry only to the extent reasonably necessary to address the apparent emergency and does not authorize officers to search a home more broadly. See ante, at 9. With all that, I agree.¶verify

But to me, a question lingers: Why? 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.¶verify

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;¶verify

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).*¶verify

The common-law emergency rule is now often summarized this way: “One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to . . . the actor[,] . . . the other[,] or a third person . . . unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.” Restatement (Second) of Torts §197(1) (1963–1964). But, of course, this privilege comes with its logical limitations. So, for example, a private citizen who enters a home to render emergency aid lacks license to do so in a manner “which a reasonable man would not regard as necessary to” address the apparent emergency. Id ., §214, and Comment a ; see also id ., §197, Comment a ; Des Moines v. Webster , 861 N. W. 2d 878, 883885 (Iowa App. 2014); State v. Lukus , 149 Mont. 45, 50–51, 423 P. 2d 49, 52–53 (1967).¶verify

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*Contrary to Mr. Case’s argument, King v. Coate , Lofft. 73, 98 Eng. Rep. 539 (K. B. 1772), does not establish that the common law demanded an exacting showing of actual necessity to defeat a claim for trespass. True, Lord Mansfield explained that any necessity defense in that case would need to “stand the strictest test,” with the “necessity manifestly proved.” Id ., at 75, 98 Eng. Rep., at 540. But Coate involved an effort to involuntarily “confin[e] a person in a madhouse” for two months, not a claim over a home entry. Id ., at 74, 98 Eng. Rep., at 539. And it is hardly surprising that the common law would demand a good deal more to justify a serious deprivation of liberty than to excuse an invasion of property rights aimed at protecting human safety.¶verify

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.¶verify

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).¶verify