Law

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?

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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.

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  1. So, know brickbat huh? Did Fist take the day off so it was cancelled?

    1. Libertarian Moment? If they couldn’t find one for today we must extrapolate that no govt across the globe abused their citizenry. Either that or Charles took the day off. I am going with the former since I follow Fauci’s razor – the most likely scenario is the least likely to have occurred.

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    2. Adam, it appears that you do not know the difference between “no” and “know”. Therefore we can conclude that you don’t know nothing.

  2. 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.

    Funny, my copy of the Constitution doesn’t include the exceptions to the Fourth Amendment. And once you allow the government to create exceptions to the Bill of Rights, you’ve established the principle that the government can create exceptions to the Bill of Rights and that is always going to end badly. The Constitution was meant to be a set of chains to bind government, not a set of elastic bands that allow them a surfeit of wiggle room. You may think “hot pursuit” may be a sensible exception to the Fourth, but that’s not what the Supreme Law of the Land says, does it? Do you really think we’re better off creating “sensible” exceptions to the Constitution when you allow government to decide what’s “sensible”? You’re insane.

    1. Amen.

      God bless and keep Neil Gorsuch, first defender of individual rights in the entire Federal bureaucracy.

      1. Gorsuch loves individual rights so much he even invented one in a statute where it didn’t exist. What a time to be alive.

    2. You have to bury your Constitution in the ground, apply water and fertilizer, and before long it will grow into a living Constitution. Or just degrade into a mass of useless paper pulp.

    3. Are there no exceptions in your view, or do you think those found in common law and mentioned by Gorsuch are valid exceptions even though they aren’t enumerated?

    4. Fourth, second, first, they all now have “exceptions”.
      The basic fact that the US Constitution was written to RESTRICT the federal government has been lost in the mists of fascist propaganda.

    5. Read the actual text, and you’ll see it prohibits only “unreasonable” searches. Reasonable ones are not an exception, they’re part of the law. Also, it describes the conditions for issuance of warrants, but it does not say warrants are required for all searches. So certain warrantless searches are allowed by it; these are not exceptions, either.

      1. It makes a difference if he’s fleeing a violent crime he just committed as opposed, say, to someone who voted four times in the same election. The second one can wait for a warrant.

        1. I’ve been told repeatedly there is no such thing as election fraud.

      2. Ya, the problem is that the people who define “reasonable” seem to live in a weird bubble where no government actor is ever suspected of poor practice. As Gorsuch pointed out, the definition of “reasonable” search has indisputably and drastically expended since the 4th amendment was written.

    6. Agreed. When in doubt, look at what the amendment actually says – and just as important, what it does not. You’ll notice that the word ‘except’ int used a whole lot. When you find a current politician who is smarter than the founding fathers, I’ll listen to an alternative argument. Needless to say, I am not holding my breath.

  3. “today pretty much anything or everything can be called a felony.”

    “Oh, very well. A ‘surfelony’, then.”

    1. In adjudicating a felony, you might hang a man.
      In the case of a surfelony, you hang ten.

  4. Even though he got in in the worst way, he’s not been bad. His reasoning here is great and a win for actual liberty.

    1. However he got in he’s generally better for our liberty than Garland would have been. Or any of the other SC judges for that matter.

      1. I think so too but the 3 libs might be better because of their willingness to use substantive due process to restrict state power vis a via the individual.

        1. You’re delusional.

          1. It’s the whiny halfwit aka Tony. Trying to get back into the comments after most everyone else muted his sorry punk ass.

        2. HAHAHAHA

          Modern liberals are dedicated to using the state to provide for the needs of the oppressed and to banishing the undesired. And for them, “individuals” are impediments for the collective good.

        3. “…but the 3 libs might be better because of their willingness to use substantive due process to restrict state power vis a via the individual.”

          Given pod’s demonstrated level of stoooopid, I’m not even allowing for this to be sarc.

        4. Fuck off Jakie.

    2. The worst way? I thought there was only one way to get in, be nominated by the President and confirmed by the Senate. Seem to recall that was the process Gorsuch followed to get the job. The Senate’s rejection of Obama’s choice plays no part in Gorsuch’s hiring. And the Senate was well within their Constitutional duty to reject Garland. We are a Republic after all.

    3. Her TDS keeps her warm at night.

      1. And stupid.

  5. “By contrast, he emphasized, ‘today pretty much anything or everything can be called a felony’.”

    Why can’t the rest of them see this?

    1. Because none of them want to admit that it’s they who enabled our legal system to be that way.

  6. the list of exceptions is entirely too long and distinguished.

  7. Why hasn’t the LP already given this man their 2024 Presidential nomination?

    1. Becaise SCOTUS needs him, 0 EVs dont

  8. Recycling a story from Feb?

  9. Sadly we must assume Gorsuch is always terrible because he is a white, cisgender male, appointed by Trump. I cannot wait for Biden to have the opportunity to appoint transgendered people of color who can have the right opinions.

  10. “…a police officer may always enter a suspect’s home without a warrant if the officer is in pursuit and has probable cause…”
    Any officer can make up “probable cause.”

    “‘We live in a world in which everything has been criminalized,’ Gorsuch told Harbourt.”

    TRUTH!

  11. Tjomas just joined Gorsuch and the 3 libs to overturn a 3 Strikes conviction/ gun posession because one of the previous ‘strikes’ was a “reckless” felony with no criminal intent.

    Seems a tad activist, surprising for Thomas

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