I Think I Know Why SCOTUS Does Not Grant Fourth Amendment Cases Anymore

Search and seizure cases are very fact bound. The Court wants to set general standards.

On October 15, the Supreme Court heard nearly 2.5 hours of oral argument in the Voting Rights Act Case. Without even taking a break, the Court heard the second case, fittingly titled Case v. Montana. It was obvious the Justices were spent. They said so. At one point, Justice Gorsuch referred to a case called Brigham City as Brigham Young. He apologized, and said "Sorry. I am tired." At another point, Justice Barrett apologized for mispronouncing Caniglia, and said "it's been a long day."

Still, for those who managed to slog through the arguments, there was an important takeaway. The Justices did not want to write an opinion based on the unusual facts of this case. They wanted to write a broader rule that would be easy to apply.

Fred Rowley, who represented Case, spent a lot of time discussing the particular facts that the police officers knew about the defendant. He mentioned several officers by name, and referenced what they said on body camera footage. This approach may have been appropriate for this case, but it was unusual. In most Supreme Court cases, the facts on the ground really don't matter. The Justices are trying to set some sort of national rule. In this case, Justice Jackson in particular seemed frustrated with the fixation on the record. At one point, Jackson interrupted Rowley, who was talking about the facts, and said "We're trying to think about a standard here." Later, Rowley was talking about knowledge that one of the officers had about Case. Jackson again said, "Well, setting aside this particular case, let me just try to understand the standard that you want us to apply."

Fourth Amendment caselaw can be very fact-bound. The Justices did not want to get into the weeds. They seemed content to just announce a test, and let the lower courts figure it out. In this case, the test is "objective reasonableness" from Brigham City. Justice Barrett, in particular, did not want to say what that test entailed.

JUSTICE BARRETT: But are you really saying that we should do something different than in Brigham City or --or muddy the waters by saying, oh, you know, objectively reasonable basis but could be reasonable suspicion?

MR. CORRIGAN: You're --you're correct on --on the first part, on your --on the former. We are not saying that they should --that the Court --that Brigham City means reasonable suspicion. What --what we're saying is, in some instances, it could, as you said Justice Barrett, yield a result like reasonable suspicion, just like it could yield a result like probable cause.

JUSTICE BARRETT: Well, we don't need to say that. I think that would be confusing. I think we could just say Brigham City, objectively reasonable basis to believe, and put a period on that.

MR. CORRIGAN: I --I agree, Justice Barrett.

JUSTICE BARRETT: Okay. Thanks.

Put a period on it and wrap it with a bow.

Justice Jackson tried to put forward some sort of "matrix" that would apply different factors. The SG favored a "sliding scale." But those tests didn't get much traction. Justice Gorsuch said, "Yeah, I don't understand the sliding scale thing at all, I'll be honest, so help me out."

The Court is content to speak in bright line rules. Fourth Amendment caselaw is seldom about bright line rules. The Court just didn't seem comfortable here. This case may illustrate why the Court grants so few Fourth Amendment cases.

I still think a DIG is possible. It is not at all clear to me why the Justices took this case. And if they aren't prepared to write a clean opinion applying the facts, I don't know how much can be gained.

Comments

[LawTalkingGuy]

So the justices are bad at judging? Who knew!

[nonzenze]

Orin in shambles.

[MaddogEngineer]

I don't know whether he's in shambles, or even why he would be. But since he recently blogged in response to another Blackman observation, hopefully he does so again here. Since it's his area of expertise.

Blackman is mostly a partisan hack, who loves to play at Real Housewives at the Supreme Court kremlinology, but he's not always wrong. I could believe this theory. But obviously I do not closely follow trends in 4A cases like Professor Kerr does.

[rswallen]

Is he? My first thought was this sounded kinda similar to something Prof Kerr wrote recently: https://reason.com/volokh/2025/09/08/supreme-court-lifts-injunction-in-los-angeles-immigration-enforcement-case/

> By way of context, the usual practice is that courts rarely enter injunctions in Fourth Amendment cases. Fourth Amendment law is just too fact-specific. What the police can and can't do is so dependent on the facts that it's hard for courts to carve out ahead of time a class of things the Fourth Amendment will not allow. This creates a problem for courts wanting to impose broad injunctive relief to prevent Fourth Amendment violations. It forces courts to either say something generic like "don't violate the Fourth Amendment" —something the Fourth Amendment already covers—or to try to come up with prophylactic rules to protect the underlying Fourth Amendment values even if it means enjoining some constitutional acts to prevent other unconstitutional ones.

[Longtobefree]

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This is very specific; only a tyrant or a judge would have a problem with it.
Just like the second amendment.

[Stupid Government Tricks]

You probably think "persons, houses, papers, and effects" is clear enough; your property is yours, and government needs a search warrant signed by a judge to trespass or search or seize your property. Ha! You are wrong.

* The Supreme Court made up the Open Fields Doctrine in 1924 (Hester v. United States), ruling that fields around a house are not listed in that clause, and so not protected. Police have trespassed to set up cameras in hunting areas, with the courts' blessings, including convicting property owners who disabled or removed the cameras.

* The Supreme Court made up the Third Party Doctrine in 1976 (United States v. Miller) and 1979 (Smith v. Maryland), ruling that information turned over to a third party, such as cell phone location and telephone and bank records, is not protected by the Fourth Amendment.

* Wiretapping to the extent of recording who you talk with and for how long is like the addresses on an envelope, and not protected either. Sorry, no case for that, I think there were several. The practice is called "pen and trace" or something.

[MollyGodiva]

You are leaving out the plain view exception, plain feel exception, community caretaking exception, consent exception, mistake of law exception, mistake of fact exception, mistake of law and mistake of fact exception, dog exception, and informant exception.

[Stupid Government Tricks]

No comparison. You continue to miss the point of everything you reply to.

[windycityattorney]

Automobile exception is prolly one of the biggest. As traffic stops are majority of the time done w/out a warrant to search the occupants or the vehicle BUT with reasonable suspicion of a violation of the traffic code.

Exigent circumstances is another (more for homes than vehicles).

Plain-view, plain-feel are a couple more. Why there is a big ol' list of exceptions. It's almost as if a clever law enforcement agent doesn't need a warrant at all for the vast majority of their job. How convenient.

[Kazinski]

And don't forget the customs exception within 100 miles of the border, the workplace inspection exception, Building code enforcement exception, etc.

[SRG2]

I don't see any mention of "no expectation of privacy" there, either.

[Dr. Ed 2]

It's Brown-Jackson, not to be confused with the great Justice Jackson.

[David Nieporent]

It is not in fact Brown-Jackson. You can see that on Wikipedia or the Court's own website: https://www.supremecourt.gov/about/biographies.aspx

No hyphen.

And she goes by Justice Jackson. You can see that in the court's own opinions.

[Stuart]

Finally, a well reasoned article that omits your usually snide comments.

[Life of Brian]

Rather ironic this comment didn't end after the word "article."

[LawTalkingGuy]

That’s not ironic at all.

[John 4]

Per recent interactions, Brian seems to struggle with English. Someone should check that citizenship!

[JimM47]

It's not particularly ironic because it is not particularly snide to observe that Blackman has a problem with making snide comments.

The difference is this: Blackman's snide comments are unnecessary to the point of the posts and they detract greatly from his work; by contrast, Original Parent's comment is not unnecessary, it goes to the heart of the matter discussed in the comment. In other words, it is precisely because Blackman managed to avoid making his "usual[] snide comments" that it could be "well reasoned."

[I am breaking a personal rule by coming to the comments on a Blackman post. But that is due to the unusual fact that, as mentioned above, this post turned out to be worthwhile.]

[MollyGodiva]

SCOTUS has effectively written the 4A out of the Constitution by making up so many "exemptions" that the police can almost always find a way to conduct a warrantless search.

[MaddogEngineer]

And yet, evidence still gets excluded based on what are later determined to be illegal/unreasonable searches.

So no, just because 4A jurisprudence does not conform to your judicial preferences does not mean it has been written out of the Constitution.

[NvEric]

They shot the guy for dubious reasons in his own home.

SCOTUS wants a standard ? Something like blood pressure numbers or 'one size fits all', maybe 'fits most people' ? Medicine by numbers does not work. Why should law be the same ?

[loki13]

How about this?

The Supreme Court has put in SO MANY exceptions to the Fourth Amendment that unless an LEO hits all the bad parts of this trifecta-
a. Exceptionally bad at testilying; AND
b. Caught on camera; AND
c. Happens to catch a judge who might actually rules against an LEO is both a and b happen ....

It almost never matters. Of course, this is so "LEO can get the bad guys, and besides, there's always a civil remedy, amirite?"

EXCEPT there really isn't a civil remedy, because SCOTUS has done their level best to get rid of those. On the VERY RARE occasion when you manage to get one through a maze of procedural and legal hurdles (oh, the precedent was clearly established involving green cars, and this was a red car....) ....

THEN there still isn't a deterrent because LEO is always indemnified anyway.

Rinse, repeat.

[LawTalkingGuy]

“a. Exceptionally bad at testilying; AND
b. Caught on camera; AND
c. Happens to catch a judge who might actually rules against an LEO if both a and b happen ...”

Haha I won a suppression this summer because all of these were present.

I’ll add that A and B are often correlated. When an officer is dumb or aggressive on camera they also tend to testify that way, which helps illuminate the violation for the court. An officer who is friendly and respectful during his constitutional violation tends to be that way on the stand and gets the benefit of the doubt from the court.

[loki13]

Congratulations on winning the suppression hearing!

Some time back, I was friends with a PD, and he said the local PD's office would through a party (with cake) every time there was a victory on one.

[LawTalkingGuy]

Hahaha thank you! Co-counsel and I treated ourselves to a nice lunch.

[TheAmazingEmu]

I don't see the need to DIG the case. There seems to be broad consensus that Reasonable Articulable Suspicion is the wrong standard, so they can reverse and remand to address the issue. I think they will probably draw directly from the language of previous case law to go with "objective reason to believe" (as opposed to "suspect"). I don't think a Probable Cause standard is entirely out of the question, just because there is a well-established history, which would make it easier to apply, but I don't think there's a lot of taste for it.

That being said, it's the wrong case for Petitioner to win. Best case scenario, he gets a remand and will probably lose under any standard. Worst case scenario, they actually apply the test to these facts (urged by the government) and likely affirm the conviction under a different standard. This will depend on whether the record is developed enough, which I wouldn't know.

[wvattorney13]

I agree that is what they will probably do. I think the facts of "Case's case" really get into the weeds and the Court probably won't touch them; just remand for a Brigham City test.

However I am struck by the fact that in this case the police knew that Mr. Case was a drunk who threatened this kind of stuff all of the time. The beer cans, notepad, and holster are fluff, IMHO because the police waited 40 minutes before going in. If it was a true emergency they wouldn't have waited that long. To me, all of this cuts against reasonableness in this case.

The ridiculous part is that the police said right away that Mr. Case was trying to commit suicide by cop. So instead of letting it play out, they bust in and shoot the poor bastard, giving him exactly what he wanted. Real Barney Fife stuff all around and the opposite of reasonable.