Gorsuch Pushes Stronger Fourth Amendment Protections

Can a cop enter a suspect's home without a warrant if they're in pursuit and have probable cause to believe the suspect has committed a misdemeanor?

In 2019, California's 1st District Court of Appeal ruled that a police officer may always enter a suspect's home without a warrant if the officer is in pursuit and has probable cause to believe the suspect has committed a misdemeanor. In February, the U.S. Supreme Court considered whether that ruling should be overturned.

Justice Neil Gorsuch seemed to have a problem with the lower court's decision. Under the common law, Gorsuch pointed out during oral arguments in Lange v. California, the police did not "have the power to enter the home in pursuit of any and all misdemeanor crimes." The Fourth Amendment was built on that common-law understanding. So "why would we create a rule that is less protective than what everyone understands to be the case of the Fourth Amendment as original matter?"

Gorsuch also seemed to have a problem with California Deputy Solicitor General Samuel Harbourt's argument that it is "settled that officers may enter a home without a warrant if they have probable cause to believe a fleeing suspect has committed a felony." The justice offered a different view.

"We live in a world in which everything has been criminalized," Gorsuch told Harbourt. "Some professors have even opined that there's not an American alive who hasn't committed a felony…under some state law. And in a world like that, why doesn't it make sense to retreat back to the original meaning of the Fourth Amendment, which…generally says that you get to go into a home without a warrant if the officer sees a violent action or something that's likely to lead to imminent violence?"

In other words, since many felonies do not involve violence, why should the cops get to categorically evade the Fourth Amendment's warrant requirement whenever they are pursuing a felony suspect? Because common law allowed police to pursue felons into their homes, Harbourt replied.

But "what qualified as a felony at common law," Gorsuch countered, "were very few crimes, and they were all punished by the death penalty usually." By contrast, he emphasized, "today pretty much anything or everything can be called a felony."

In Gorsuch's view, the Fourth Amendment's warrant requirement should apply in such circumstances unless the police are pursuing someone suspected of committing a violent or dangerous crime. If adopted by the Supreme Court, that approach would place real limits on police power.