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April 1, 2021

Will SCOTUS Eliminate the Fourth Amendment?

A case before the High Court could either solidify or undermine our civil liberties.

“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.” —Amendment IV, U.S. Constitution

Democrats and the Biden administration would like to seize Americans’ firearms, apparently by any means necessary. It remains to be seen if the U.S. Supreme Court will collaborate with them.

On March 24, the U.S. Supreme Court began hearing arguments in Caniglia v. Strom. The case arises from a 2015 incident in Cranston, Rhode Island, where police were summoned to do a “wellness check” on Edward Caniglia after his wife reported that he might be suicidal. While Caniglia was arguing with her, he put an unloaded gun on the table and told her to “shoot me now and get it over with.” She responded by calling a non-emergency number, and the police arrived in short order. While at the scene, the police disagreed about whether Mr. Caniglia was acting “normal” or “agitated,” but they convinced him to take an ambulance to the local hospital for evaluation. The police did not go with him.

While he was en route, his wife told the police he kept two handguns in the house. Without first obtaining a warrant, police conducted a search of the house — after obtaining Mrs. Caniglia’s permission by lying and saying her husband consented to the search. They found two guns and seized them. Mr. Caniglia sued, asserting police had violated his Fourth Amendment rights as well as his Second Amendment right to own firearms for self-protection.

The First Circuit Court of Appeals sided with police, citing the “community care taking doctrine” that has already been recognized as an exception to the Fourth Amendment by the United States Supreme Court’s 1973 decision in Cady v. Dombrowski. In that case, the Court held that police officers did not violate the Fourth Amendment when they searched the trunk of a car that had been towed following an accident.The Court acknowledged that police cannot search private property without consent or a warrant, “except in certain carefully defined classes of cases.” Yet it further noted that “there is a constitutional difference between houses and cars.”

A host of cases used that ruling to establish the doctrine of “community caretaking,” which Cady had defined as activities “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” In short, if a police officer might reasonably decide a warrantless search could prevent the community from being endangered, that search was constitutional.

That kind of search was related to vehicles. Caniglia v. Strom is about whether or not it can be extended to homes.

The First Circuit Court of Appeals certainly thought so. “At its core,” the court wrote, “the community caretaking doctrine is designed to give police elbow room to take appropriate action when unforeseen circumstances present some transient hazard that requires immediate attention. Understanding the core purpose of the doctrine leads inexorably to the conclusion that it should not be limited to the motor vehicle context. Threats to individual and community safety are not confined to the highways.”

That giving cops such “elbow room” makes an utter mockery of the “right of the people to be secure in their persons, houses, papers, and effects”? As Forbes columnist Evan Gerstmann points out, “The community caretaking exception is not limited to circumstances where there is no time to apply for a warrant.”

In other words, “immediate attention” and “transient hazard” are extremely malleable terms. Police can simply decide — at their leisure — that an emergency has come into existence, thereby negating the need for a warrant. Thus, Gerstmann wonders, will police be able “to conduct warrantless searches of political protesters’ homes to make sure they aren’t planning on violent behavior at their next political rally?”

Political protesters, or Americans who disagree with the policies of the Biden administration — or those who simply disagree with progressive dogma?

As were are learning, courtesy of a ruling by the U.S. Court of Appeals for the District of Columbia Circuit, political considerations already motivate the U.S. Justice Department. According to the panel, the DOJ abused its power by denying bail to many of the protesters at the January 6 riot, even for misdemeanors, by alleging they were part of a vast conspiracy. As columnist Clarice Feldman so aptly explained, “Keeping in D.C. jails without bail some of the protestors who engaged in no specific violent acts at the Capitol until their cases can be heard was very obviously designed to compel them to plea bargain so they could return home to their families and jobs, and the three-judge panel wasn’t buying it.”

It doesn’t take much of an imagination to envision a scenario where police conduct a warrantless search of someone’s home, find a gun, and subsequently allege that finding to be part of a conspiracy, precipitating the denial of bail — especially when they can conduct an ex post facto search of someone’s social media for what could be deemed “incendiary” statements.

Statements that bring the First Amendment into play as well.

Matt Agorist, an honorably discharged veteran of the USMC and former intelligence operator directly tasked by the NSA, sees the proverbial writing on the wall. “We have already seen tech giants like Facebook hand over the private messages of those who talked about the events of January 6,” he writes. “If [Caniglia v. Strom] is upheld, it could pave the way for cops to raid the home of those who engage in peaceful discourse based solely on the premise that violence might happen.”

The 2002 movie “Minority Report” envisions a future where police have the legal authority to prevent crime before it happens. It was set in the year 2054, and much like George Orwell’s 1984, it was presented as a cautionary tale — not a how-to manual.

Unsurprisingly, the Biden administration and attorneys general from nine states have sided with the police, and as Fox New host Tucker Carlson warns, “The Biden administration is asking the Supreme Court to approve of this and make it a precedent. They’re asking for permission to search any home they want, without a warrant and take what they want.”

We used to call that “tyranny.” What an increasingly feckless Supreme Court will call it is anyone’s guess.

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