The 4th Amendment’s prohibition of unreasonable searches and seizures has long been on the cutting edge between liberty and government abuse, which arose from an important episode in American history.
When the English Crown created Writs of Assistance — broad search warrants enabling customs officials to enter any business or home in the colonies without advance notice, probable cause, or reason — James Otis resigned his post as advocate general in the vice-admiralty court to protest the violation of the celebrated English maxim, “Every man’s house is his castle.” Otis then turned around and represented, without charge, Boston merchants’ efforts to stop the writs.
For five hours, he put forward arguments that “Government … is above all things to provide for the security, the quiet and happy enjoyment of life, liberty, and property. There is no one act which a government can have a right to make, that does not tend to [its] advancement.”
Since “One of the most essential branches of … liberty is the freedom of one’s house,” the writs of assistance were beyond the power of Parliament to impose, because “Everyone with this writ may be a tyrant.” Consequently, he said “I will to my dying day oppose … all such instruments of slavery on the one hand and villainy on the other, as this Writ of Assistance is.”
John Adams later declared that “the child independence was then and there born.”
Over two centuries later, we still face many “search and seizure” issues that put our privacy and security at risk. For instance, Edward Snowden revealed government spying on our citizens. The DIA has admitted tracking innocent people’s movements without warrants since the Obama administration, claiming that because they are not law enforcement, they are exempt from 4th Amendment restrictions. The ability of injured parties’ power to sue officers involved for damages suffered in unlawful searches is not a dead letter.
But Lange v. California, whose oral argument were made last week before the Supreme Court, highlights the particular importance of the Exclusionary Rule ban on evidence gathered in violation of the 4th Amendment, an essential protection of our privacy and security rights. At issue is an exception that could swallow the rule.
As described by the Los Angeles Times, it would “carve out yet another exception — allowing police to enter someone’s home without a warrant when an officer has probable cause to believe that even a minor offense has been committed.”
Retired realtor Arthur Lange had been observed playing loud music and honking his horn as he drove to his home in Sonoma. A California Highway Patrol officer had followed him home, then turned on his flashing red lights just as Lange prepared to pull into his driveway. Lange claimed not to see that. He proceeded into his garage (less than 100 feet). Then as the garage door was closing, the officer stopped it with his foot, then entered the garage. He then observed signs that Lange was intoxicated.
Lange sought to have that evidence suppressed as the result of an “unreasonable” warrantless search. California courts ruled the other way, as a result of “exigent circumstances,” emergencies where an officer must act quickly, as in “hot pursuits” of suspects.
But failing to stop for police lights (which Lange claimed he did not see) is a misdemeanor. The California Appeals Court held that it provided sufficient probable cause for entering the garage without a warrant. But if such a minor (and contested) misdemeanor is sufficient to qualify for an “exigent circumstances” exemption, it is hard to see what protection the 4th Amendment still offers citizens.
That concern was clear to the U.S. Supreme Court Justices, who “worried aloud that the mere fact that the suspect flees into a home in an effort to avoid arrest would create an emergency that would justify allowing police to enter the home without a warrant.”
That is perhaps unsurprising, given that an amicus brief from the National Association of Criminal Defense Lawyers identified about 150 cases roughly analogous to Lange’s, with underlying crimes including public urination and failing to pay a cab fare, which make a mockery of “exigent circumstances.”
Justice Neil Gorsuch had a particularly cogent response. He noted that “We live in a world in which everything has been criminalized.” Consequently, who does not stand at risk of having his rights violated at the discretion of any police officer?
Further, he pointed out that the common law understanding upon which the 4th Amendment was constructed didn’t give police “the power to enter the home in pursuit of any and all misdemeanor crimes,” 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?”
In other words, why don’t we take the 4th Amendment seriously, rather than look for ways to eviscerate it?
Gorsuch here is aligned with the Institute for Justice’s brief in the Lange case, which said “The Amendment was adopted not to make life easier for police, but to protect our security.” Further, failing to overturn the Appellate Court decision “would blow a massive hole in the warrant requirement, leaving us all far less secure as a result.”
Lange v. California is an important case, with the potential to put every American’s 4th Amendment rights in serious jeopardy. If the current California precedent stands, our own government’s warrantless invasiveness will not be much different from under Britain’s Writs of Assistance. And none of us want to live where every police officer “may be a tyrant,” before which essential rights can easily fall.
Gary M. Galles is a professor of economics at Pepperdine University.