The Fourth Amendment Hangs in the Balance

On Wednesday, Feb. 24, the Supreme Court will hear a case whose outcome will weaken or strengthen our Fourth Amendment rights against warrantless searches: Can a police officer enter a home without a warrant for a mere misdemeanor?

The Fourth Amendment is simple enough:

"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."

That means that police can't search you or your stuff unless they have a warrant. However, if the particular circumstances meet one of the few exceptions to the warrant requirement -- such as the plain view and automobile exceptions -- they may do so. Depending on how the Court rules in Lange v. California, an exception to the warrant requirement may go from a pinhole drip to a firehose of police invading private property. That's not hyperbolic. If the Supreme Court rules as California and many other governments and police agencies want, cops could go into the home of someone they saw commit any infraction, from littering to jaywalking.

Let's say a cop is walking down the street and sees someone shoot a few people and run into a nearby house. Does the officer need a warrant to chase after the gunman into the house? No, because the circumstances fall under a “hot pursuit” exception to the warrant requirements. In the 1980 case of Payton v. New York, the Supreme Court ruled police were prohibited "from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest" that did not involve any of the exceptions, or exigent circumstances. In Payton, the Court said, "Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant."

Exigent Littering …

So it was clear that if a felony were committed with exigent circumstances, the police would likely be able to proceed without a warrant. Some courts, however, found that as long as exigent circumstances were present, there need not be a felony crime present, too. They ruled that even misdemeanor traffic offenses, such as the one Arthur Gregory Lange was accused of, would permit a warrantless search. The Supreme Court now takes up this case to clarify what the Constitution requires, which one hopes will honor the home's sanctity as the Founders' vision of liberty requires.

Current justices need to look no further than Justice John Paul Stevens' opinion in Payton, which succinctly presented the reasoning to keep the state at bay absent a warrant. He said:

"To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home, which is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is present."

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Read more from Scott D. Cosenza.