Advancing Knowledge

Improving Skills

Mr. Caniglia sued, alleging the search and seizure violated his 4th Amendment right to be free of unreasonable searches of his home. In their defense the police relied upoCady’s community caretaking exception to the warrant requirement. (Consent would have been a better argument, had the police not lied to the missus to get it.) The First Circuit agreed, holding that the efforts by police to protect Mr. Caniglia and those around him were distinct from any sort of criminal investigation, were reasonable under the circumstances, and even “sound police procedure.” 

The Supreme Court disagreed. There is no free standing “community caretaking function” exception to the warrant requirement to justify a warrantless search of a home. Stating the obvious, a car is different from a house, and what is reasonable for one is not reasonable for another. Past decisions declined to broaden the exception announced in Cady to include searching one’s home, and the Court was not going to do so in Mr. Caniglia’s case. 

That decision seems, well, reasonable. Its importance lies as much in what was not decided as what was. The majority opinion makes clear that the First Circuit’s ruling, and in turn the majority’s opinion, is limited to the existence of the community caretaking function exception. The well-recognized exceptions to the warrant requirement - i.e., consent, exigent circumstance, reacting to a crime, were not in play. Neither was justifying the search as akin to what a private citizen would have authority to do if Mrs. Caniglia had asked her neighbor for help instead of the police.

CONCURING CONFUSION

The concurring justices then take up the baton to make clear their reasons for joining in the judgment. First comes the Chief Justice’s paragraph explaining that he joins in the decision precisely because of what it doesn’t do. Police officers have many roles that have nothing to do with criminal investigations, explained the Chief Justice, like “preventing violence and restoring order” or giving aid to those who are hurt. Thus, entering a house without a warrant is justified “when there is an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger.” If the Chief Justice’s intent was to uphold the continuing vitality of the exigent circumstances exception when police are reacting to a medical emergency, or protecting another from threatened harm, he is gilding the lily; the majority took a sentence to do just that, citing the very same case as the Chief Justice.

But if it’s redundant, at least it’s only a paragraph long. Justice Alito piles on with a page or two highlighting questions the majority did not decide. According to Justice Alito, holding that there is no overarching community caretaking doctrine is not the same as holding that the reasonableness of searches and seizures done for non-law enforcement purposes must be analyzed using the same rules as are used in criminal cases. In Justice Alito’s view, at least, the Caniglia opinion stands for little. The larger question of what rules apply to searches in the various non-criminal contexts remains to be answered at another time. 

Justice Alito makes a good point. If there’s any ambiguity in the majority opinion it is precisely that larger question. While it is clear that simply raising the community caretaking duties as a justification is insufficient, it isn’t clear what, if anything, is sufficient. Are only those exceptions recognized in criminal cases valid in non-criminal circumstances?  I think we can say with some certainty that it is reasonable for officers to enter a house without a warrant if they reasonably believe that someone inside needs emergency medical care. Is that simply the exigent circumstance exception applied to non-criminal, caretaking functions? Good question, Justice Alito. 

Justice Alito then spends some time addressing something mentioned only in passing by Mr. Caniglia. This case can be seen as falling into a category of law enforcement response that involves that very community caretaking function: a search and seizure to prevent a suicide. Justice Alito is talking here about the temporary seizure of Mr. Caniglia to conduct a mental health evaluation. To fall into that category, it seems that one has to assume that Mr. Caniglia did not in fact consent to leaving in the ambulance. The Court of Appeals assumed that Mr. Caniglia was misled by the police with a false promise that they would not take his guns, thus vitiating any notion of voluntary consent. This calls into question laws in every state permitting a temporary seizure of a person to conduct a mental health assessment to determine if the person meets the requirements for involuntary commitment to treatment. To what extent does the 4th Amendment restrict this kind of seizure? Justice Alito noted that the Court has never addressed the short-term seizure that takes place to allow an assessment of the risk of suicide, and the majority opinion did not take up Mr. Caniglia’s off-hand invitation to do so here. A non-call that Justice Alito characterized as “appropriate.” 

It’s hard to tell what’s going on. Is Justice Alito signaling that he is looking for an appropriate case to take up that issue? That makes some sense when read in the context of the next issue Justice Alito finds implicated in this case, one he says is “glossed over” by Mr. Caniglia: red flag laws. Red flag laws allow judges to issue an order enabling law enforcement to seize firearms to prevent suicide or potential harm to another at the hands of the person “flagged.” Justice Alito correctly points out that some provisions of these laws may in the future be challenged on 4th Amendment grounds, but that the Caniglia case does not address those issues. 

Is this another kind of signaling by Justice Alito? Perhaps he’s hinting to potential litigants not to rely on Caniglia if they chose to challenge aspects of these laws under the 4th Amendment. Justice Alito mentions one more potential problem, one that was the subject of a lengthy fact pattern posited by the Chief Justice. What happens when neighbors begin to worry about the well-being of an elderly woman living next door? The neighbors invite her to dinner at 6:00 PM, and she hasn’t shown up by 8:00 PM. She has never been late before, the neighbors say. They have not seen her leave the house in days. Out of concern for her welfare, the neighbors call the police. Under that set of facts, would the police be justified in breaking into her house to see if she needed assistance?  Mr. Caniglia’s counsel answered that without a warrant, that intrusion into the elderly woman’s home would violate her 4th Amendment rights. 

And therein lies the rub: there isn’t a procedure to secure a search warrant under these facts to look for a person who may need medical assistance. Justice Alito suggests that perhaps the states should create such a procedure. Until then, and perhaps even afterward, the courts are left with shoe-horning such cases into the exigent circumstances exception. But there again, that exception exists for when there is not enough time to get a warrant, and a procedure for such a warrant would take away most of the exigency. Prior cases,Caniglia included, did not address this issue, leaving courts to wrestle with the application of the 4th Amendment in future cases like these and other non-law enforcement searches. 

As Justice Alito said, the majority’s decision settles none of them. But it does settle the case before it, and it does so by rejecting a broad community caretaking exception to the warrant requirement relied upon by the Court of Appeals ruling. Since it goes no further, Justice Alito chose to join the majority’s opinion. 

Why did both the Chief Justice and Justice Alito emphasize the cases that were not decided byCaniglia? Pointing out that the majority opinion too narrowly focuses on just one set of facts, or conversely, suggesting that it is too broad and purports to settle the law in cases not before it, is something usually found in dissent. A cynic might say that Justice Alito, at least during his early tenure on the Court, is so unaccustomed to being in the majority that he has yet to develop his concurrence writing chops. I try not to be cynical, so the best explanation I can come up with is that the concurring Justices see problems ahead unless they reinforce thaCaniglia is a relatively narrow decision. Or perhaps I haven’t read enough concurring opinions to understand the purpose behind these. 

That brings us to longest of the three written by Justice Cavanaugh. He states his purpose upfront: “I write separately to underscore and elaborate on the Chief Justice's point that the Court's decision does not prevent police officers from taking reasonable steps to assist those who are inside a home and in need of aid.” And does he ever! He begins in 1791, with the ratification of the 4th Amendment, and travels full circle through several examples of “heartland emergency-aid situations” that permit warrantless entry into a home. All his examples are of situations where law enforcement is functioning in their non-criminal, community caretaker role. To Justice Cavanaugh, these are simply judged as falling within or without the exigent circumstances exception to the 4th Amendment’s warrant clause. The courts need only ask if the officers had an objectively reasonable basis to believe that there is an on-crisis that demands immediate action. 

EXIGENT CIRCUMSTANCES AND HOT PURSUIT

The Justices kept with the 4th Amendment theme in a few other cases. Somewhat related to the issue in Caniglia is the issue of when police officers may enter a residence without a warrant in pursuit of a suspected misdemeanant. Does “hot pursuit” of a someone suspected of committing a misdemeanor automatically fall into the exigent circumstances exception to the warrant clause? The majority opinion in Lange v. California, __ U.S. __ (June 23, 2021), written by Justice Kagan, gives us the obvious, and probably most frustrating, answer imaginable: it depends. 

Mr. Lange was driving to his home in Sonoma when Officer Weikert’s attention was drawn by the loud music coming from Lange’s car, and the fact that Lange was honking his car’s horn even though the road ahead of him was clear.  Weikert turned on his overhead lights moments before Lange turned into his driveway. Claiming not to have seen the lights, Lange pulled into his garage and started to shut the garage door. Acting quickly, Officer Weikert parked his cruiser in Lange’s driveway, jumped out and followed Lange into his garage. Once with Lange in the garage, Officer Weikert smelled the odor of intoxicants. He began a DUI investigation which involved a hospital blood test – that came back at .245 – which culminated in Lange’s arrest. 

These facts remind me of the kind of case I dreaded as a prosecutor. There are so many questions a defense lawyer could ask that simply in the asking could make the officer look negligent, if not incompetent. If, as a prosecutor, I have to spend my time defending what the officer did, when it was done, and why, my fondness for the case dropped considerably. A good example of this is the Officer’s justification for the warrantless entry into Lange’s garage; he was in “hot pursuit” of Lange. Keeping in mind that the probable cause for the ultimate charge wasn’t developed until after the warrantless entry, the “hot pursuit” must be justified by the loud music and horn honking. This seems neither particularly hot, nor much of a pursuit.

My opinion of the facts notwithstanding, the California courts ruled that the “hot pursuit” of Lange began when the overhead lights turned on, giving the officer probable cause to enter the garage without a warrant. A majority of the U.S. Supreme Court disagreed, vacating the state court’s ruling, and pitching the case back to California to reconsider in light of its opinion. 

In keeping with long-standing practice, the majority refused to create some bright line test for determining when circumstances are sufficiently exigent to justify warrantless entry into a house. Whether the exception applies is decided on a case-by-case basis. You see, it depends.

The real question is whether the police have time to secure a warrant in light of the facts of the case. There are certainly times when pursuing a suspect, even one suspected of a misdemeanor, will with other facts justify quick action from police, possibly including entering onto the premises. The suspect may destroy evidence or continue to flee and pose a risk to the public. The pursuit in this case didn’t justify such a quick response. Once Lange was blocked in by the cruiser, there was plenty of time for Officer Weikert to secure a warrant. Accordingly, the Court vacated the state court’s decision, sending the case back for reconsideration in light of its opinion.

FURTHER REFINING THE DEFINITION OF SEIZURE

This trio of 4th Amendment cases ends on a decision in Torres v. Madrid, 141 S.Ct. 989, 209 L.Ed.2d 190 (2021) addressing the breadth of conduct that constitutes a seizure by police. Real life is messy. Trying to decide when a citizen is “seized” for 4th Amendment purposes reflects that messiness. While arguing over whether this or that conduct is really a seizure, never mind an unreasonable one, is great stuff for late night discussions by 2Ls, court decisions ruling on messy facts sometimes defy common understanding of the words. Torres is one of those decisions.

Police officers in New Mexico had a warrant for the arrest of a wrongdoer. The officers approached Torres as she was sitting in her parked car. Rather than hang around to talk to the police, Torres drove away. Claiming that they feared for their safety, the officers shot at the car. Despite being injured in the shooting, Torres continued to drive away. 

This is actually a civil rights case brought by Torres, seeking redress for her unlawful seizure in violation of the 4thAmendment. Consequently, if Torres was never seized because she kept driving, as the 10th Circuit ruled, Torres’ 4thAmendment rights were not violated. So, was Torres ever seized for 4th Amendment purposes? If so, when was the seizure complete, when the police actually got physical custody of Torres, or at some place between approaching her car and shooting her? Or to casting it in language closer to the Court’s, was the unsuccessful effort to stop Torres a “seizure?”

Chief Justice Roberts, writing for a five-vote majority, decided that Torres was indeed seized even though she fled from police. The Chief Justice notes early in the decision that much of this ground was plowed iCalifornia v. Hodari D, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), when the Court said “[t]he word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” 

All very well and good, but the police never laid hands on Torres. They shot her. That fact drives the Chief Justice to an examination of history and an analysis of the Amendment’s text to “independently reach the conclusions” in the opinion.

It had to be a struggle to find analogous cases in 17th or 18th century English common law. Perhaps a fleeing felon shot with a long bow? (Justice Gorsuch wrote what for him is a scorching dissent mocking the Chief Justice’s historical analysis. Ironically, it can be read as scorching critique of originalism in this context.) Or maybe a case involving touching a noblewoman with a mace? That, in fact, is what he found. A debt collection case from 1605 known aCountess of Rutland’s Case. Apparently, the good Countess, Isabel Holcroft, had a debt-collection judgment against her. The “serjeants-at-mace” sent to execute the judgment touched her with a…uhm, mace, and proclaimed “we arrest you, madam.” The arrest is unquestionably a seizure, but touching with a mace is like shooting someone, and the similarity guides the way to the decision iTorres

One shudders at what a crim law professor would say if a student drew the same analogy in a final exam. So the Chief Justice moved on to more solid ground with his interpretation of the text. From that interpretation some basic principles can be gleaned. First, a seizure is an act, it has a beginning and an end. This is as true now as it was at the time of the drafting; a suspect then, as now, could be physically grabbed by an officer and subsequently break from that grasp and flee. The suspect is certainly seized for that brief period beginning when the police first lay hands on. 

Next, it is that application of force that restrains one’s liberty, no matter how briefly, that can constitute a seizure. With these principles in mind, the ruling inTorres is not that she was continually seized from the moment she was shot. Rather, she was seized “for the instant” she was hit by the bullets. That she in a sense broke the grasp of the police by driving away only proves that the seizure was unsuccessful. “We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.”

The mind boggles at the potential breadth of this holding. A mere touch is seizure? Obviously, the intent of the toucher is a limit to the scope of this ruling. An officer walking down a crowded sidewalk who is jostled into another obviously has not intent to restrain anyone. 

But the limit is itself limited. What can be said about the intent of an officer who approaches a citizen and taps them on the shoulder? The officer intends to draw the attention of the citizen, but is that his only intent. Does he want to ask the citizen about what they are doing there, to ask about a recent reported crime in the area, or ask for directions to a good place to eat lunch? What if the officer wants to question the citizen about his suspicious behavior, and rather than stay to chat the citizen runs away? Is a tap on the shoulder then a seizure, albeit unsuccessful? 

These examples may seem silly, but they are the kind used by Justice Gorsuch in dissent. Add to that other potential touchings: a laser beam, spraying pepper spray, or a loud noise. Or consider the case in Dallas  where a woman participating in a protest after the murder of George Floyd was shot in the chest nearly point-blank with a pepper-ball designed to be shot into the ground to disperse a crowd? She was, for the instant the pepper-ball struck her, seized by the firing officer. That is consistent with, if not compelled bTorres. The issue remaining is whether the seizure was unreasonable and therefore a violation of her 4th Amendment rights.

Print Email

What People are Saying about Herb's Trainings 

"Again, thank you for your time, knowledge, and efforts to share your experiences.  It was a great 2-days and I wish to learn much more."
Program Specialist assisting in Title IX investigations

"I just wanted to say thank you for such an excellent lecture. It was extremely insightful and definitely had me thinking about how I would begin to form how I would conduct interviews on such a difficult topic. It was nice for me (someone who's never interviewed a victim like that) to go in with no knowledge or bias and be able to completely absorb what you were teaching."
Law enforcement intern and future Law Enforcement Office
 

"Thank you so much for the really excellent presentation on Tuesday! Our entire team thought it was spot-on content-wise, and you offered it to the participants in a way that was easy for them to understand."
Program director, national TA provider