The Volokh Conspiracy

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Caniglia v. Strom was a subtle, and unanimous victory for originalism

The Burger Court made up the "community caretaking exception" to the warrant requirement in Cady v. Dombrowski. Justice Thomas declined to extend that unoriginalist doctrine to the home.


In Garza v. Idaho, Justice Thomas articulated a framework that reconciles stare decisis and originalism: if there is "little available evidence suggest[ing] that" certain precedents are "correct as an original matter, the Court should tread carefully before extending our precedents in this area." I have suggested that lower court judges could adopt a modified version of this theory.

Justice Thomas's unanimous majority opinion in Caniglia v. Strom represented a subtle, and unanimous victory for the Garza principle. This case declined to extend the so-called "community caretaking" exception to the context of homes. Here is the introduction to the decision:

Decades ago, this Court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. Cady v. Dombrowski, 413 U. S. 433 (1973). In reaching this conclusion, the Court observed that police officers who patrol the "public highways"are often called to discharge noncriminal "community care-taking functions," such as responding to disabled vehiclesor investigating accidents. Id., at 441. The question today is whether Cady's acknowledgment of these "caretaking"duties creates a standalone doctrine that justifies warrant-less searches and seizures in the home. It does not.

Cady was a 5-4 decision. Justice Rehnquist wrote the majority opinion, which was joined by Chief Justice Burger, and Justices White, Blackmun, and Powell. This decision was in no sense originalist. It merely curtailed some of the more liberal criminal procedure doctrines from the Warren Court. Justice Brennan lamented this reversal in dissent:

In upholding the warrantless search of respondent's rented Thunderbird, the Court purports merely to rely on our prior decisions dealing with automobile searches. It is clear to me, however, that nothing in our prior decisions supports either the reasoning or the result of the Court's decision today.

Yesterday, the Roberts Court did not restore any of the non-originalist Warren Court precedents that favored the criminal defendant. It merely cabined the non-originalist Burger Court precedent that favored the police.

Justice Thomas's majority opinion was only four pages long. I can't recall reading a majority opinion that was so short. There was no discussion of originalism. But I suspect originalism lurked in the background, at least for Justices Thomas and Gorsuch.

I agree with Professor Mike Ramsey (San Diego):

In a four-page unanimous decision yesterday written by Justice Thomas, the Court declined to extend the exception to the home.  Thomas didn't undertake any originalist analysis (or, really, any analysis beyond saying that the automobile exception of Cady v. Dombrowski, 413 U. S. 433 (1973) was just—as that decision said—a rule for automobiles).  But I'm confident he thinks there's no originalist basis for an extension—and, likely, no originalist basis for Cady either.

So, a small victory for the original meaning.

There were three concurrences in Caniglia, two of which were longer than the majority opinion.

First, Chief Justice Roberts concurred, joined by Justice Breyer. He favorably cited Brigham City v. Stuart (2006). Roberts wrote this unanimous decision during his first term on the Court.

Second, Justice Alito wrote a five-page, teeth-gritting-concurrence. Here we have a rare case where Justice Alito votes in favor of a criminal defendant. But he had lots of things to say.

I join the opinion of the Court but write separately to explain my understanding of the Court's holding and to highlight some important questions that the Court does not decide.

Third, Justice Kavanaugh wrote a five-page concurrence. He discussed issues that were not implicated by Caniglia, but were apparently on this mind:

For example, as I will explain, police officers may enter a home without a warrant in circumstances where they are reasonably trying to prevent a potential suicide or to help an elderly person who has been out of contact and may have fallen and suffered a serious injury.

Justice Kavanaugh proposes a LifeCall exception to the Fourth Amendment.

We are not treated to any sort of exegesis about the original meaning of the Fourth Amendment. Rather, Justice Kavanaugh calls for the creation of more non-originalist doctrine:

This case does not require us to explore all the contours of the exigent circumstances doctrine as applied to emergency-aid situations because the officers here disclaimed reliance on that doctrine. But to avoid any confusion going forward, I think it important to briefly describe how the doctrine applies to some heartland emergency-aid situations. .  . . .

Consistent with that reality, the Court's exigency precedents, as I read them, permit warrantless entries when police officers have an objectively reasonable basis to believe that there is a current, ongoing crisis for which it is reasonable to act now. 

Justice Brennan could not have stated it any better: use the word "reasonable" twice in one sentence! That test should be easy enough to follow.

I don't mind when Justices write about ancillary legal issues that are not presented in a case. But why would a Justice write about ancillary factual issues that are not presented? Here, Kavanaugh includes footnotes listing the number of people who committed suicide and died in falls. I am tempted to chalk this concurrence up to more virtue signaling, or what Justice Kagan called "scorekeeping." (More on Edwards v. Vannoy later). But in all likelihood, Justice Kavanaugh was affected by suicide or an elderly fall, so he decided to write about those issues. No more, no less. This solo concurrence provides a fairly direct window into his jurisprudence. And there isn't much to see. Justice Kavanaugh keeps falling, and he can't get up.