Law & the Courts

Today at the Supreme Court: Home Searches and Retroactive Rules

Outside the Supreme Court, December 2013 (Reuters photo: Jonathan Ernst)
Here’s what happened in the two criminal-law decisions the Court handed down today.

While the big headline from this morning at the U.S. Supreme Court was the abortion case that the Court decided to take next year, it also handed down four noteworthy decisions. Twenty-six argued cases remain on the docket for this term, which should end by the Fourth of July weekend; I summarized the cases outstanding heading into today here. Here’s what happened in the two criminal-law decisions the Court handed down today.

Your Home is Your Castle . . . For Now

The police can enter a home with consent, with a warrant, or without one in “exigent circumstances.” On a public road, they can also enter a car for safety reasons — an exception to the Fourth Amendment recognized in a 1973 case, Cady v. Dombrowski, that referred to the many roles of the police in “community caretaking” beyond simply investigating crimes. But can they use that as a reason to enter a home?

In Caniglia v. Strom, the police entered the home of a man reported by his wife to be suicidal. They had no warrant, and no probable cause to investigate a crime. There were a few wrinkles: The police had his wife’s consent to enter the house, and he agreed to go for a psychiatric evaluation, but the man says that he specifically told the cops not to take his guns, and his wife allegedly did not validly consent to a search for the guns. (The man says that the police lied to her about his request.)

Justice Clarence Thomas’s breezy, four-page opinion for a unanimous Court treated the central question as such an easy and obvious one that it required none of his usual detailed historical or textual analysis. Cady did not create a broad, freestanding exception to the Fourth Amendment, and the phrase “community caretaking” should not be read as its own source of police authority, let alone one that justifies entering homes without a warrant. Cady’s holding was, in the Court’s view, driven by the particular situation of a vehicle on the public roads:

Cady’s unmistakable distinction between vehicles and homes also places into proper context its reference to “community caretaking.” This quote comes from a portion of the opinion explaining that the “frequency with which . . . vehicle[s] can become disabled or involved in . . . accident[s] on public highways” often requires police to perform noncriminal “community caretaking functions,” such as providing aid to motorists. . . . But, this recognition that police officers perform many civic tasks in modern society was just that — a recognition that these tasks exist, and not an open-ended license to perform them anywhere. What is reasonable for vehicles is different from what is reasonable for homes. [Emphasis added.]

While the Court rejected a broad reading of Cady, three justices — Chief Justice John Roberts, Justice Samuel Alito, and Justice Brett Kavanaugh — all wrote separate opinions to note that the Court was not foreclosing the right of police to enter homes for various noncriminal purposes. Each stressed that the Court would need to assess the reasonableness of those searches — i.e., how far the police had gone, what procedures had been used to determine whether to enter — on their own facts rather than by a broad rule:

  • Roberts, joined by Justice Stephen Breyer, noted that prior cases had allowed searches of homes to “to assist persons who are seriously injured or threatened with such injury.”
  • Alito noted that the Court has not yet decided when police can enter a home to prevent a suicide; has not yet considered “red flag” laws allowing the confiscation of guns; and has not decided when police can enter the home of an elderly person who may be injured. On the latter example, Alito added that an old woman who has fallen “may have regarded her house as her castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony.”
  • Kavanaugh went further, arguing that both the risk of suicide and an unresponsive, possibly injured elderly person should be ample grounds for police to enter a home.

The terse nature of the unanimous opinion probably derived at least in part from the diversity of the justices’ views on the limits of today’s decision — a consensus-building exercise that is not usually seen in Thomas’s scholarly lone dissents.

No Going Back

The Court’s 2020 decision in Ramos v. Louisiana struck down Louisiana and Oregon laws allowing nonunanimous verdicts in criminal cases. That is good news for people convicted by nonunanimous juries whose appeals are still pending. But would that decision be applied retroactively to habeas corpus cases filed by convicts whose time to appeal ran out years ago? That matters to a bunch of criminal cases. In Edwards v. Vannoy, the Ramos argument was raised by a black Louisiana man who was convicted 15 years ago of a brutal one-night spree of rapes, kidnappings, and robberies and is serving a life sentence. The lone black juror voted to acquit him, but he was convicted 11–1 and 10–2 on the various charges. His appeals were rejected a decade ago.

The Court, in a 6–3 decision along ideological lines, concluded that the Ramos rule would not apply retroactively. The majority opinion, written by Justice Kavanaugh, went further. Since Teague v. Lane in 1989, the Court has held that every one of its new criminal-procedure decisions applied only prospectively, but held out the possibility that there might, someday, be a decision of such “watershed” importance that it would apply retroactively. As Justice Elena Kagan’s dissent noted, one could hardly think of a more fundamental ruling than the requirement of a unanimous verdict — but the majority concluded that the “watershed” exception was always a “false hope,” and that it was time to end the pretense:

How can any additional new rules of criminal procedure apply retroactively on federal collateral review? At this point, some 32 years after Teague, we think the only candid answer is that none can — that is, no new rules of criminal procedure can satisfy the watershed exception. We cannot responsibly continue to suggest otherwise to litigants and courts . . .

No stare decisis values would be served by continuing to indulge the fiction that Teague’s purported watershed exception endures. No one can reasonably rely on a supposed exception that has never operated in practice. And perpetuating what has become an illusory exception misleads litigants and judges, and needlessly expends the scarce resources of defense counsel, prosecutors, and courts.

Justice Neil Gorsuch added:

This Court denied “watershed” status to one rule after another. Rules guaranteeing individuals the right to confront their accusers. Rules ensuring that only a jury may decide a defendant’s fate in a death penalty case. Rules preventing racially motivated jury selection. All failed to win retroactive application. . . . We take this step not because this Court’s criminal procedure rulings are somehow unimportant. Any decision seeking to enforce liberties enshrined in the Constitution has a claim to “watershed” importance. Instead, we abandon Teague’s test because it poses a question this Court has no business asking.

Gorsuch argued that abandoning the possibility of a retroactive ruling brought the Court back in line with traditional rules about the finality of criminal convictions, rather than reviving a series of pre-Teague cases from the Warren Court era that had turned habeas corpus litigation into “little more than an ordinary appeal with an extraordinary Latin name.” He chided the dissenters for their selective view of precedent:

The dissent criticizes today’s decision as a departure from modern habeas precedent. But the dissent’s history is selective. The dissent champions decisions from the 1950s, ’60s, and ’70s. But it disregards how those decisions departed from a century of this Court’s precedents and the common law before that. At the same time, the dissent’s account overlooks this Court’s precedents refusing to afford retroactive application in every case since the 1980s. The dissent may prefer decisions within a particular 30-year window. But it is too much to say this preference is required to “respect[] stare decisis.” [Citations omitted]

Gorsuch also joined the separate opinion of Justice Thomas, who argued that the scope of habeas corpus relief is a creature of statute, and that the statutory text of the Antiterrorism and Effective Death Penalty Act of 1996 “leaves no room for this Court — or any federal court — to grant relief.” Congress could change that rule, or not — as Thomas noted, the Constitution does not actually require retroactive application of new rules in habeas cases. That decision, though, is up to Congress alone.


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