Case v. Montana and the General Law Approach to the Fourth Amendment

Justice Gorsuch seems to look to modern general law to flesh out the content of the Fourth Amendment in today's Fourth Amendment decision.

Today the Supreme Court decided Case v. Montana, an increasingly rare Fourth Amendment decision. The case, which concerns the “emergency aid” exception to the warrant requirement, does not break a ton of new ground; it basically just reiterates what the Court said in Brigham City v. Stuart two decades ago: “that police officers may enter a home without a warrant if they have an ‘objectively reasonable basis for believing’ that someone inside needs emergency assistance.”

What’s much more interesting than Justice Kagan’s unanimous majority opinion—to me, at least—is Justice Gorsuch’s 3-page concurrence, which gives an interesting clue about how Justice Gorsuch will address Fourth Amendment cases in the future.

To put that concurrence in context, let’s look back at Carpenter v. United States, a Fourth Amendment case from 2018. In his dissent there, Justice Gorsuch endorsed some kind of positive-law based approach to the Fourth Amendment. Rejecting the Katz test, under which Fourth Amendment protections turn on reasonable expectations of privacy (as measured by the Court), he argued that “the right to assert a Fourth Amendment claim” should be “tied to the law.”

In that opinion, however, Justice Gorsuch expressed uncertainty about what exactly that approach would mean:

We know that if a house, paper, or effect is yours, you have a Fourth Amendment interest in its protection. But what kind of legal interest is sufficient to make something yours? And what source of law determines that? Current positive law? The common law at 1791, extended by analogy to modern times? Both?

The first option—looking to "[c]urrent positive law”—is the one laid out by co-blogger Will Baude and James Stern in their groundbreaking article “The Positive Law Model of the Fourth Amendment.” Under that approach, Fourth Amendment protections would turn on “whether government officials have engaged in an investigative act that would be unlawful for a similarly situated private actor to perform.” Importantly, under the Baude & Stern approach, courts would actually have to look at the positive laws—federal, state, municipal—applicable in the particular jurisdiction in which the police conduct occurred.

The second option—looking to “[t]he common law at 1791”—is what Akhil Amar has called a frozen-in-amber approach. Under this approach, courts would presumably look at exclusively historical sources, trying to determine what common-law rules prevailed at the time of the Fourth Amendment’s ratification (or, perhaps, the time of the Fourteenth Amendment’s ratification when state cases are at issue). On this approach, 17th-century English treatises and cases would be highly probative; post-1791 sources of law would be largely irrelevant (unless they clearly spoke to what the pre-1791 common law would have held).

In “The Fourth Amendment and General Law,” Danielle D’Onfro and I advocated for a third option:

To Justice Gorsuch’s last question[(“Both?”)], this Article offers a different answer: neither. The Fourth Amendment should not be read as freezing specific common-law rules from the Founding Era in constitutional amber. Nor should it be understood as making Fourth Amendment protections wholly dependent on today's positive law—that is, on whether the relevant jurisdiction in which a search or seizure occurs prohibits the conduct at issue for private parties. Instead, courts should interpret the Fourth Amendment by turning to general law. The general law, in Caleb Nelson's words, is a set of “rules that are not under the control of any single jurisdiction, but instead reflect principles or practices common to many different jurisdictions.” In other words, this approach would ask courts to resolve Fourth Amendment questions not by looking to the common law of 1791, but instead by using the tools of the common law to determine the general law of the country today.

We argued that this approach was normatively superior and more consistent with the cases in which the Supreme Court had actually looked to property or positive law. Since Carpenter, however, Justice Gorsuch had not elaborated further on the questions he raised there.

In Case, Justice Gorsuch provided some indication that he may actually prefer the general law option. In his concurrence, he argued that the emergency aid doctrine was legitimate because it was “tied to the law.” He defended that claim by looking to the common law, arguing that it “has generally permitted a private citizen to enter another’s house and property in order to avert serious physical harm.”

Importantly, however, Justice Gorsuch’s methodology in fleshing out his reading of “the common law” seems hard to square with any theory other than the general law method.

First, his opinion does not seem consistent with the frozen-in-amber approach. He explicitly looks to the common law “[f]rom before the founding through the present day.” He cites cases from the 17th, 18th, 19th, 20th and even 21st centuries. He also relies on the Restatement (Second) of Torts, published in 1968. If all that mattered for the Fourth Amendment’s content was 1791 law, it is hard to see why cases postdating those dates by centuries would be relevant. True, he did not have to resolve any conflict between Founding-Era and present-day common law because he saw the two as in harmony. Nonetheless, the fact that he found it appropriate to consult modern sources—especially including the Restatement, given that Restatements are supposed to capture the state of the law at the present, not what the law was at the Founding—is striking.

His approach seems even harder to square with the positive law model. In describing “the common law,” he cited one 1967 Montana Supreme Court decision. But he also cited a 21st century Iowa Court of Appeals case and a 20th century Vermont Supreme Court decision. If he thought that only the positive law applicable to private persons in Montana mattered, it’s again not clear why these sources were relevant. Instead, what he seems to think we should look to “the” common law—not the specific version of the common law defined by the particular jurisdiction where the police conduct occurred.

As noted, Justice Gorsuch did not see any conflict between different potential sources of common-law trespass doctrine. So we don’t know for sure how he might answer the methodological question if such a conflict clearly required him to do so. But I (selfishly) like what I see here, and I’m even more eager to see what Justice Gorsuch says in future Fourth Amendment cases.