New Cert Petition on Emergency Entry: What Was the Common Law Rule?
A cert petition was recently filed at the Supreme Court in Case v. Montana on the Fourth Amendment standards for entry into a home to help people in an emergency. The question presented:
Whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.
The petition does not address the original public meaning of the Fourth Amendment, or the common law rules on this issue. But this is one area where there are common law authorities on the question, and they seem pretty home-protective. Given the Supreme Court’s increased interest in originalism, I thought I might blog about what the established rule was for this issue at the time of the adoption of the Fourth Amendment, which presumably would inform what would have been understood as an unreasonable search and seizure.
Let’s start with what was perhaps the best treatise on common law rules of criminal procedure, William Hawkins, Pleas of the Crown (1787 ed). Here’s how Hawkins summarizes the rule:
Here Hawkins states the rule as allowing entry when the “affray” (somewhat a term of art in the 18th century, but basically meaning a really big fight) is made in the constable’s “view or hearing.” It’s not just that the constable has heard about the fight. He needs to see it or hear it. If he sees it or hears it, he can enter the home to “suppress the affray,” that is, break up the fight.
What makes Hawkins particularly helpful as a treatise writer is that he cites sources. On the side note, he cites five sources. Let’s take a look at them.
The first source is “Sum. 134-35.” That refers to Matthew Hale’s short volume, Pleas of the Crown: or, a Methodical summary of the principal matters relating to that subject, from 1678. The pincite is to Hale’s discussion on the law of affrays, and he states the rule about the power of constables as follows:
Hale’s short volume is less clear on the standard of entry. The constable ought to break up a fight in his presence (somewhere outside, one assumes) but there’s nothing specific about what if the fight is ongoing in a house; does the constable need to see or hear the fight, as Hawkins is saying later on?
Hawkins next cited “2 Hale 95.” That’s a cite to Volume 2 of Hale’s more developed and influential treatise, Historia Placitorum Coronæ, the 1736 edition of which contains the following at page 95:
In this volume, Hale talks of two different situations. First, if there’s an affray in the house, and “there is likely to be manslaughter or bloodshed committed,” the constable can demand entrance, and if no one lets him in but the fight is still ongoing, he can break in. Second, if there’s a lot of noise going on at night, he can basically do the same.
Hawkins also cites “Crompton 170,” which I assume refers to George Crompton’s Practice Common-placed Or, The Rules & Cases of Practice in the Courts of King’s Bench & Common Pleas, although at least on a quick look I can’t find the relevant discussion. It may be that, since Hawkins wrote his treatise in 1719, that the pagination of Crompton was different from the later editions I find on Google books. Or maybe that’s the wrong Crompton treatise? Not sure. I’ll have to look into that more later.
The next Hawkins cite is to “Dalton c.78,” which is to Chapter 78 of Michael Dalton’s Country Justice, the chapter on jails, although it seems to be mostly about who pays for setting up a jail (a big deal in an era where there was no state-provided jail). That’s perhaps relevant to the second common law rule in that Hawkins paragraph, about hot pursuit searches, but it doesn’t seem relevant to the rules about emergency entry.
Finally, there’s a citation to “B.P. Imprison. 6.” I’m not sure what that is, but I wonder if it’s to a Parlimentiary writ of the era, “B.P.” standing for “”Brevia Parliamentaria,” or “Before Parliament.” Perhaps a writ relating to imprisonment powers, akin to the citation to Dalton above? I’m not sure.
Anyway, combining the Hawkins rule from his Pleas of the Crown with the rule from Hale’s Historia Placitorum Coronæ, I take the common law authorities to suggest some significant certainty about whether the “affray” is happening inside the house before the constable can enter. Hawkins says the constable has to hear or see the big fight. Hale says it needs to be “likely” that there will be manslaughter or bloodshed, something that to me sounds more suggestive of a probable cause standard. Hale’s mention of noise coning from the house seems consistent with a high certainty, too. The constable would hear the noise himself, being sure of it.
I’d need to look in a lot more detail to be sure of this. But at least on a quick look, it appears that there’s significant common law support for the idea that the government needs a significant likelihood of harm occurring before entering the home.
Anyway, I have no idea if the Supreme Court will be interested in this case. The Court has not been much interested in its Fourth Amendment docket recently. The state waived its opportunity to file a brief in opposition. But there are some significant common law materials on this question if the Court ends up interested in the issue.
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