Court dilemma: Can cops force their way into homes over misdemeanors?

By Bob Unruh

The castle doctrine protects people in their homes from invasion and assault, but a case before the U.S. Supreme Court could change that.

It would give police unrestricted rights to barge into homes when the dispute is over something as minor as a misdemeanor traffic infraction.

“That can’t be right,” contends a friend-of-the-court brief from the Institute for Justice in the case California vs Lange.

“Start with a simple example: Under the lower court’s categorical rule, a police officer who saw a man jaywalk across the street and enter his home could claim he was in ‘hot pursuit’ – even if the jaywalker was unaware – and burst into his home without a warrant,” the brief says.

“The street could be totally empty, and the officer could have ample time to get a warrant, but as long as jaywalking was a criminal offense, neither fact would matter. All that would matter would be that the officer believed he saw the man jaywalk and started pursuing him.”

The brief argues that in America, “our homes are supposed to be our castles.”

“But that security is in doubt. In California v. Lange, the U.S. Supreme Court will decide if the Fourth Amendment allows police to enter people’s homes without a warrant whenever an officer is pursuing anyone they think has committed any jailable misdemeanor,” IJ says.

“The Fourth Amendment forbids government from conducting ‘unreasonable’ searches and seizures. But how is a court to decide what is or is not ‘reasonable’? Here, the California Court of Appeals held that police could enter Arthur Lange’s home late at night without a warrant just because the officer believed Lange had been honking his horn and playing music too loudly while driving. In that court’s view, it is always reasonable for officers who are pursuing someone for a jailable offense to enter that person’s home—no matter how harmless the offense or how much time they have to get a warrant,” IJ says.

“The Fourth Amendment starts by declaring ‘the right of the people to be secure,’ and history makes clear that the Amendment was designed to protect us from threats to our persons and property. It is this right—the right to be secure from government officers’ unchecked power to search and seize—that should serve as the court’s compass when evaluating the reasonableness of police conduct. In the past, the court has allowed police to enter homes without a warrant (or consent) only when the facts show a dangerous situation requiring immediate action. The court should do the same here and reject the lower court’s fact-free approach that would weaken all Americans’ right to be secure in their homes.”

Joshua Windham, IJ attorney and lead author of IJ’s brief, argues the Fourth Amendment protects “our right to be secure in our property, which means both safe and free from fear that the police will enter without warning or authorization.”

“A rule that allows police to burst into your home whenever they think they saw you commit a harmless offense turns that right on its head. We call on the court to correct the lower court’s error and clarify that only true emergencies rooted in actual facts can justify warrantless home entries,” he said.

IJ Senior Attorney Robert Frommer noted the Founders wrote the Fourth Amendment “to make us secure in our persons and property.”

“But the lower court’s decision treats our security as little more than a speed bump for law enforcement.”

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