Supreme Court Restricts Warrantless Home Searches

by police without a warrant. During oral arguments, the Justice has had questioned whether the so called community caretaker exception should allow police to enter a home without a warrant, and Chief Justice John Roberts raised some interesting hypotheticals, ranging from an elderly woman who hasn't been heard from to a van go painting about to be damaged. The neighbors say, she hasn't I haven't seen her all day. She didn't come over for dinner. She's never late. Is that enough? Uh?

And they've got this fence around their yard. It's it's locked, but there's a cat up in the tree. Can you can you come and help you get the cap down? Is that? Uh? Community caretaking? Okay? It's water dripping from above, you know, in in someone's home and they happen to own a van Gogh and the water is going to

ruin the painting is that compelling. In an unanimous decision, the Justice is bolster the Fourth Amendment's protection of the home against warrantless searches in a rather odd case involving police seizing guns in a potentially suicidal man's home. Joining me as former federal prosecutor George Newhouse of Richard's Carrington, George tell us about the decision. So the decision that

Knniglia versus Strong, that's a couple of things. It reaffirms that the home is a man's castle and has the highest protection in the Fourth Amendment, So the right of privacy, the Supreme Court has ruled nine zero, which is a remarkable union amity indicates that the police have to be very careful and cautious when entering the home for any really any purpose where they don't have consent or there

isn't a clear what the law calls exigencies. And so this case really was designed to test to see whether another and earlier case called Katie versus Dombrowski would be extended. In seventy three Supreme Court case where an officer found a gun after he searched an impounded car that had

been involved in a traffic accident TOAD. And so the court in that case in Katie articulated something that they call the community caretaking exception, and that's a reference to and it's true the police perform a remarkable number of public safety type tasks that are not law enforcement oriented. They're not searching for criminals. They're trying to protect people. They're helping people who may be injured in their homes.

And of course, during the argument that justices were very concerned that the police have ample authority to undertake these

public safety sort of exercises. But in this decision they made it very clear and Condigulia has sort of unusual facts that they can't just come into a house any time that the police would like to, and they need special circumstances and they need a high degree of articulable reasonable though, so they have to have an objectively reasonable basis for coming into the house, such as, for example, to say, the elderly person who may have fallen and

injured themselves. So it's an important decision and interesting one, very short written by Justice Thomas, and there are a number of concurrences, but only by the conservative block. But we didn't hear from any of the liberal justices. So interesting decisions. Yeah for page opinion and then very short concurring opinions as well, one written by Chief Justice John Roberts with just a paragraph long. What were they trying

to do with these concurrences? Remember, a concurrence is not the opinion of the court only to Justice Thomas wrote that the concurrences the justices want to say. As also Justice Kavanaugh wrote a concurring opinion, they're trying to say,

this is what the opinion does not say. So we want to be very clear, Justice Roberts is very clear that this decision is not interfering or impinging on the ability of the police, acting as public safety personnel to enter a home when they have a reasonable basis to believe that someone requires their assistance or so of non law enforcement purposes. That, of course, we heard extensively during

the argument and the facts of the case. Really there was no reason for the police to go into Conniglia's house. If you recall, he had an argument with his wife, brought out a revolver, put in the table in front of them, and then invited her to shoot him and get it over with, an invitation which she declined. Left the house and spent the night in the hotel. Then when she called the next day, he wasn't answering the phone.

She was concerned had the police come with her, and they found him on the front port, so there was no longer any exigency or emergency. Conniglia said, you can take me to the hospital, but don't take my guns. There was no reason for the police to go into Conniglia's house. Justice Alito talked about the issue of red flag laws allowing gun seizures. Why did he bring that up? That really wasn't an issue in this case, was it,

John is an excellent point. Now, it was not an issue in this case, and I noticed it as well. It's interesting that Justice Thomas, who wrote the opinion, is probably the most profound advocate for Second Amenment rights, second only to Justice Alito. Justice Alito was signaling in a concurrence.

When they say something like that, the Justice is saying, this is something that we may come back to, and he was clearly signaling to the community some of these red flag laws, which are laws passed by the states that make it possible for the states to come in and seize firearms from persons, particularly persons who were experiencing psychiatric difficulties and these laws. Justice Alito basically said, well, this issue isn't before us today, but we may get

a case at the Supreme Court. And indeed he seemed to be implying that he would welcome such a case. So it's really an invitation for a further litigation on Second Amendment rights and a court. Remember, this case involved a man who had not committed a crime and who the police went into his house and took his gun. So I think I've got the attention of the justices that are, shall we say, sensitive to the Second Amendment.

So this comes at a time when the police and their powers have come under scrutiny, and this case had civil liberties groups on both sides of the aisle agreeing. The Americans of the Liberties Union, the Cato Institute in the American Conservative Union Foundation joined in a brief. You don't often see that very strange bedfellows indeed, and you're right, it's really because the facts of the case were unusual.

The conservatives on those people that were concerned about gun rights did not like the fact that the police were coming in on their own without a court order. And seizing firearms. And at the same time, the a c ou was likewise concerned that anytime someone the police or the public authorities go into a private house without consent, they build their strong Fourth Amendment proponents. So it's interesting.

Fourth Amendment is one of the more interesting amendments because it is one that sometimes particularly for example, Justice Scalia was a very strong advocate of the Fourth Amendment, which is to say, restricting the ability of the police or law enforcement to inner homes or do other things that might interfere with the Fourth Amendment. Right. So fourth Amendment is a cherished amendment, and of course the home is the epicenter of that amendment, so it gets the greatest protection.

And everyone in this case agreed. Yeah. Did that come as a surprise to you that it was unanimous? Yes, Actually it was. I think it will surprise a lot of people whenever the Court in these stratified and divisive times where the Court agrees nine zero and they may be agreeing for slightly different reasons. Again that the justices who were concerned about the Second Amendment, I don't like that, and the other justices, of course are eager to or keen on seeing that police powers are checked by by

the due process clause. Let me put a few scenarios to you, and you tell me if this has any relevance this decision. So, the next time a spouse called the police and says, my husband is trying to kill

himself help, can police come in without a warrant? Yes, that probably will be sufficiently objective, reasonable facts that will justify the police, again acting in their public safety mode, to enter the house, particularly if after that call, if they go to the house and they knock and no one answers the door, and no one is there to give them consent, My belief is that would be sufficient to allow the police to come in and ensure that there has not been violence in the house. Again, one

of their primary roles public protection. The l A p d S motto is to protect and serve. So this protection role is key and has been key for a number of years, which of course is one reason why despite the controversy, all reasonable people realize that we need the police. Indeed, we need them better trained, but we need them to be able to do their job and all capacities. So now another hypothetical, someone is running away from the police hut pursuit runs into his home, can

the police follow him in? Absolutely? So that's the classic exception called hot pursuit. So if the police have probable cause to believe that if someone has robbed a bank or has committed a crime, and they are pursuing that person to apprehend him, they're doing that both to protect the public, but they're doing that in their law enforce

of capacity. And that person goes into a house or an apartment or a business, the police may follow and they do not need a warrant, and they do not need and of course can't necessarily stop to ask for consent. So that hasn't changed, and that's one of the time honored exceptions called hot pursuit. So does this case really just leave the law as it was before the first circuit went out on a limb and said that the

caretaker exception applies to the home. That's exactly right, and that's really what the justices we're writing to emphasize that this case does not engender any change in four am amateurisprudence. There are at the moment about ten exceptions to the warrant requirement, and one of them we really had called it the administrative search, but you could call it community caretaker. But the Court was really saying was there is no

special community caretaker exception. We're not endorsing what the first Circuit did. That phrase is mentioned in Katie versus Dombrowski, but Justice Alito was very careful to point out that the Court did not endorse it. So they said, we're

not creating any new law here today. And really what the Court was saying was, if you will, the exigency exception, which is extremely broad meeting exigencies being when the police are responding to emergencies, whether they're chasing a fleeing felon, or there's a fire in a residence, or there's reasonably that someone at a home or a business requires immediate medical care or assistance, they are in no way restricted from basically entering that an individual's home or residents to

provide the aid. So no no law has been changed. A fourth and amateur students per this decision is the same as it was before. Thanks George. That's George Newhouse of Richard's Carrington. The Senate Judiciary Committee advanced five of President Joe Biden's first judicial nominees today, bringing them one

step closer to confirmation. The list included Katangi Brown Jackson, who's considered a potential Supreme Court nominee for the powerful DC Appeals Court, joining me as Carl Tobias, a professor at the University of Richmond Law School, tell us what happened at the Senate Judiciary Committee. Well, it was better than I had expected in many observers thought because some Republicans voted for every nominee. The district nominees easily secured support.

One had a nineteen three vote, but the two appellate nominees for the d C Circuit in the Seventh Circuit, we're closer. Katangi Brown Jackson for DC Circuit had a thirty nine vote and Candice Jackson Akawomi had a ten vote for the Seventh Circuit. But still, at least there was some body partisanship in all of the votes, so that's a promising sign. And all of the nominees were rated highly qualified by the A B A, the highest rating.

Why more division on the circuit court nominees? Is it because their circuit court nominees or is it because of who they are? It's both, but especially for the d C Circuit which is the second most important court in the country. And it's not a very well kept secret that if President Biden has a Supreme Court vacancy, he has promised that he would appoint a black woman, and it certainly looks like Katangi Jackson would be that person.

So that's especially important. And the Seventh Circuit, of course, is very important too. We know people of color on the court. It covers large states Illinois, Indiana, Wisconsin in the Midwest and receives many difficult, complicated cases. And of course, you know that's basically your Supreme Court for the region, the Seventh Circuit, for example, in which the court sits because of Supreme Court grants so few petitions and so

it's critically important. And you know, there's so many, many, many more district judges and they tend to make less policy because they can't even bind judges in their own courthouse with their rulings. Republican Center is Ted Cruz, Josh Holly, and Ben Sas voted no on each nominee. I think that's correct, and some of them aren't even there. They

just voted proxies. I think Sas was not there, So we may expect that though, because certainly Cruise and Holly have made no bones about their own ambitions to be

president in four and they are very local. I've spoken and vigorous critics of President Biden and his nominees, and so it's to be expected, and so it's not surprising that they voted no. Senator Dick Durbin, who is the chair of the committee, told Bloomberg he's fully prepared for opposition from the panel's Republicans, particularly those positioning themselves for a possible White House bid. As I look across the table, with the exception of two or three Republicans, I'm facing

their most aggressive members. Has this become a high profile a very high profile position. Is there a reason why the most aggressive and possible presidential candidates from the GOP or on this committee. Well, they probably choose to be on that committee. And the issues that the committee takes

up are critically important. And remember, we saw three justices appointed by the last administration, each of whom was controversial, and the American people seem to be focused, especially after the court granted certain the abortion case out of Mississippi on the Supreme Court, and so it's not surprising that presidential candidates gravitate to that committee, and they certainly have. You've got Tom Cotton, You've got Ted Cruz, you have Josh Holly and a number of others who are quite

conservative ideologically. And the committee takes up a number of other issues. For example, all a number of the questions about policing and criminal justice reform go through that committee on the way to the floor. So it's an important committee in terms of its subject matter. And then all that it does, all the Justice Department political appointees have

to be confirmed and they come before the committee. All the ninety four U s Attorneys, all of those important positions um have to have the blessed of the committee. And so there's a lot of hot button issues that are addressed in that committee. Do progressive seem to be more concerned about diversity of experience than racial diversity or is it just that they know that Biden is going

to choose candidates who are racially diverse. Well, I think Biden has said and Democrats, I think are committed to having ethnic diversity on the courts. Because there was so little done in the Trump administration. As Durban repeated again today, President Trump couldn't manage to nominate a single black person for the fifty four appellate judges he nominated and confirmed UH, and Biden could manage to find three black women in his first batch, two of whom were sent to the

floor today by the committee. And so I think that you can have and I think Biden reflects in his nominees UH and soon his appointees UM both ethnic, gender and experiential diversity. UM and UM both UH circuit nominees in dis batch, UH sent out a committee today. You reflect that. So in the new batch, if confirmed, the list includes Gustavo Guelpi, who would be the second Hispanic judge to serve on the first Circuit Court of Appeals.

He's an interesting choice. He's the chief judge of the District of Puerto Rico and he was an appointee of George W. Bush. Do you often find presidents nominating judges who have been appointed by presidents of the other party, Well, not usually elevated to the appeals courts. But I assume that UM, the White House is comfortable with the UM

wealth of experience fifteen years or more. Judge Gulpy has and so UM wants to continue the tradition one Torriola served with great distinction on the first Circuit and he was from Puerto Rico. Uh. And there was a for a brief moment a district judge from Puerto Rico whom Trumpet appointed was nominated, but it was too late in Trump's term to confirm that person. Um and UM. So I think that the White House is comfortable with this person. And uh he does have bring a wealth of experience.

Uh and he grew up I think, went to UH college and law school in the US, but is from Puerto Rico. And so nominated him. So the list of the latest list of nominees bring Biden's total list of proposed nominees to lifetime federal judicial appointments to nine, plus one nominee to the DC Superior Court. But there are more than one hundred judicial vacancies. Is Biden moving too slowly? Well, I think he's moving methodically and systematically and just about

as quickly as possible with his third package. And they're moving to the committee as we saw today. Hopefully we might be confirmed even before the recess next week, this group of five, but at least several of them would be. And then they've had another hearing, and another hearing is scheduled next week. So I think both the White House and the Senate are moving the nominees. But you do work against the calendar, as you're suggesting, Uh, and they may try to step that up over the summer and

into the fall, UM, and I think they will. They're partly waiting on senators to make their recommendations to the White House, but those have been expedited it and so I think we're likely to see larger packages more quickly sent over to the Senate and hopefully quickly moved through the Senate. But Um, the tradition is to have hearings every two weeks, and with the various holidays and UM work weeks that the Senate takes outside of Washington, it's difficult.

The calendar is tough, and so I think the White House and Erman are doing all they can. UM. But you're correct, Um, there are many vacancies right now. I think the current vacancies they're seventy on the district bench and seven I believe on the Appeals Court bench. UM. But some will be filled next week. So there have been two sets of hearings I believe of nominees in the second one, it seemed as if the nominee's got a few questions from the senators, there was little pushback.

And in the first one, as we just discussed before, there was not very much pushed back from the senators, and they avoided a lot of the divisive questions that people had expected of the Republican senators. What's happening, Why aren't they taking more interest in these lower court nominees. Well, I that's a good point, especially you saw with the district nominee votes today, who were mostly you know, nominated recommended by senators because they can move the cases at

the district level and so. And they all five today were rated highly qualified by the A, B, A, So it's hard to oppose them. But I agree with what you said about the two circuit nominees that were not very many sharp questions. But part of that may reflect UM, the Katangi Jackson's great skill and answering the questions, UM and her great experience on the DC district and so, UM and the fact she may well be a Supreme Court nominee in the future. UM. And the same with

the seventh Circuit nominee. She was very skilled in answering the questions, and so um it doesn't help to um to ask sharp questions of nominees who have very responsive answers if you're trying to score points, and so you see some of that kind of dynamic. But by and large, I think the district nominees are not going to be controversial and the Republicans are going to vote for them

as they did today. So it's really the pellet nominees, and there are fewer of those pellet vacancies right now, so it isn't expected that the nominees that were advanced

will receive confirmation from the full Senate. Yes, yes, because um, the it'st and so I assume the people who voted yes on the GOP side Graham voted for both of the circuit nominees will vote for them on the floor, and that's all you need unless there is a Democratic defection, and I don't see any reason why that would be the case for either of these circuit nominees, so they'll

certainly go through. In the district nominees, of course, had strong Republican support and committee, so they will have that on the floor as well. Thanks Carl, that's professor Carl Tobias at the University of Richmond Law School. And that's it for this edition of The Bloomberg Law Show. I'm June Grass. Thanks so much for listening, and remember to tune to The Bloomberg Law Show weeknights at ten pm Eastern, right here on Bloomberg Radio.