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.

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  1. “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.”

    This essentially reverses the decision because every police officer will be taught about this exception and how to articulate it in their reports. Don’t think this won’t happen, or that it won’t be extended to smelling smoke, or natural gas, or even something like windows being open in January.

    It’s going to be the same thing as the mention of “diversity” in the Baake decision, and look at what that has given us…

    1. This could even extend to discovering an abandoned wrecked car because the driver *might* have a head injury, *might* have wandered off somewhere, and *might* die if not hospitalized.

  2. “made up”

    That describes about 80% of US Constitutional law and about 99% of Warren Court precedent.

    5A in its text uses “unreasonable” which is tailor made for being made up since “reasonable” or “unreasonable” is purely subjective.

    1. 5A in its text uses “unreasonable”


      “reasonable” or “unreasonable” is purely subjective.

      That will be news to the man on the Clapham omnibus.

      1. Sorry, 4th Amendment.

        Old timey English sayings notwithstanding, reasonable is always subjective.

    2. Alright Bob from Ohio is ready to go back to segregation. Give up his right to an attorney.
      I really hope that Mr. Bob is not a hypocrite and evreytime he brushes up against the law he denounces all the criminal procedure rights he received from the warren court.

      1. “evreytime [sic] he brushes up against the law”

        Not a criminal so don’t have brushes.

        Apparently you have a lot of them.

  3. I thought this was a weird case, because the facts seemed to suggest a much simpler resolution. Unless I misread something, the police found the plaintiff sitting on his porch. They took him away to be examined, and only then entered his house. Surely after they took him to the doctors, there was no more caretaking to be done? So regardless of whether the police could in principle enter a house to save someone’s life, in this case it was objectively not necessary for them to do that. Case closed, police loses. What am I missing?

    1. The argument to be made is that the police are “protecting” the potentially suicidal person by taking the guns away from his house. And it’s a community welfare bit.

      1. Sure, but once they took him away from the house his guns are no longer a source of immediate danger any more than any of the hundreds of millions of other fire arms in the US. So why stop at his house? Why not take away all the neighbours’ guns too?

        1. That’s why it’s “community welfare”. It’s not the “immediate” risk in the next 2 hours, but the “immediate” risk in the next few days. This person may be suicidal, and that’s a common reason for firearms to be removed from the household.

          I’m not saying I agree with the choices made. But that’s the logic.

          1. Hence my original question: Why didn’t the Supreme Court simply say that anything to do with exigent circumstances or community welfare has to be based on actual immediate danger, rather than some kind of speculation about a danger that might arise days from now?

            Why instead go down this rabbit hole about the difference between a car and a home? (Which, as Justice Kavanaugh explains, is more a matter of semantics than true difference in 4A doctrine.)

            1. That’s because of the Cady court decision, which was specifically about cars

              Specifically a guy gets into a car accident and claims to be a police officer (who should have a gun on him, but doesn’t). Guy goes to the hospital. Car gets impounded. Goes to a private lot without any guards.

              The cops are worried about a gun just lying around in an impounded car lot without any guards on it, and go to secure the gun. They find a bunch of evidence of murder instead in the car.

              The “Community welfare” bit there is that cops just thinking a gun lying around in an unlocked car in an impound lot may be a bad idea. It’s not an “immediate” danger, but it could be a reasonable danger.

              1. Ah, thanks.

                (Although that brings me back to another hobby horse of mine, which is that American judges should take more time to discuss the fact patterns of the precedents they’re relying on (or distinguishing), because that “X v. Y (holding…)” stuff just won’t do.)

              2. When a vehicle is towed officers conduct an inventory search to document the owners property. Any criminal evidence found during this type of search is admissible.
                In the above situation firearms discovered during an inventory search would be taken for safekeeping or evidence as appropriate.

            2. ” (Which, as Justice Kavanaugh explains, is more a matter of semantics than true difference in 4A doctrine.)”

              Did Kavenaugh get 9 votes for his solo concurrence? Then I don’t think he actually explained anything.

              Justice Thomas however explained a lot, it’s amazing how much clearer 9 votes make things, despite attempts to muddy the waters.

        2. Say one is loaded and a curious 6-year-old wanders into the house.
          And accidentally shoots/kills himself with it?

          I don’t know about legally, but politically it will be that the cops left the door unlocked and the gun there…

          1. Who said anything about leaving a door unlocked?

    2. Say he had a pot on the stove, it boils dry, catches fire and the house burns down. Worse, a FF dies fighting the fire. It’s happened, usually when someone is drunk or high and passes out.

      Or simple burglary — if they leave the house unsecured….

      1. You mean the house that had another occupant, who was of perfectly sound mind? By your logic, why wouldn’t the police simply go door to door, taking everybody’s guns away and checking in on their stoves while they’re at it?

        1. Don’t encourage them — I was just thinking like a cop there.

          But — absent another adult — I don’t know how they could have secured the house without going into it. Windows, cellar bulkheads (aka “rollaways”), there are all kinds of openings that can’t be locked from the outside.

  4. What an odd defense by the state…

    So, for those who didn’t read the case, it involves a man and his wife. The man puts a gun on the table and tells the wife to “shoot him now and get it over with”. Wife declines, goes to a hotel. Next day, she can’t reach him by phone, so she calls the police to get a welfare check. She meets the police at the house and see the guy peacefully sitting on the porch.

    The guy says he’s fine, but ultimately volunteers to go get a psychiatric evaluation, once he gets the police to supposedly promise not to take his guns. Once the guy is gone, guided by his wife, the police enter the house and take the guns.

    Here’s the issue with the state’s defense. Why not just argue the man’s wife let them in the house to take the guns? It’s her house too, and she’s perfectly able to let the police in without a warrant. Why try this “community welfare defense”?

    1. Presumably the plaintiff can prove that his wife didn’t give them permission…

      But yes, that would have been my defense too: implied permission from the wife.

      1. That just turns into a he said – she said defense. Two police officers saying “you guided us in” and the wife says “No I didn’t”. Unless there’s camera evidence or something.

        1. I was thinking more that the wife accompanied the plaintiff to the hospital, and was therefore never in any position to let the police into the house.

          1. The circuit court decision goes into it a bit more into depth.

            Apparently the wife (Kim) guided the officers into the house in person and personally pointed out where the guns were hidden. The cops knew the guns belonged to the husband and knew he didn’t want them taken. The cops apparently didn’t try to say they got a valid consent from the wife to take the guns.


            FWIW, the guy got his guns back.

            1. That is odd. Based on what you’re telling me it sounds like a dispute not about entering the house, but about a seizure of property. But then how did the Supreme Court end up writing all that prose about entering a home?

              1. I’m not sure. It does sound like a seizure of property issue, but one that got wrapped into a larger issue about community welfare.

                Here’s the district court decision. Here the police did argue that the wife said something like “take the guns” and also argued qualified immunity. (This is actually a good case for QI).


                1. What does qualified immunity solve? They probably are protected from personal liability by QI, but it’s now clearly established that community caretaking is not a ticket for gun siezures in the home.

    2. Well maybe the factual record doesn’t support any assertion that the wife approved the search.

      In fact the record shows they lied and told the wife he approved the search so her consent wasn’t needed. That’s why they needed to come up with another basis for the search.

  5. “There was no discussion of originalism [in the majority opinion]. But I suspect originalism lurked in the background…”


  6. Justice Brennan could not have stated it any better: use the word “reasonable” twice in one sentence!

    So an originalist wouldn’t consider whether a search was reasonable to determine whether it violated a prohibition against unreasonable searches?

    I am tempted to chalk this concurrence up to more virtue signaling, or what Justice Kagan called “scorekeeping.”

    I am tempted to chalk this concurrence up to more virtue signaling, or what Justice Kagan called “scorekeeping.”

    That is not, in fact, what Justice Kagan called “scorekeeping”.

  7. Originalism — still less important than Kim Kardashian, less popular than Kim Kardashian, and likely to have roughly the same lifespan as Kim Kardashian.

    Originalism is, however, a few months older than Kim Kardashian.

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