May 5, 2021
The chicken or the egg: temporal primacy and California law
In Caniglia v. Strom, 20-157, the U.S. Supreme Court granted certiorari to decide whether there is a “community caretaker” exception to the Fourth Amendment that authorizes police, in certain circumstances, to enter a home without probable cause or a warrant.
The paradox is as old as the Greek philosophers: If you need a chicken to make an egg, and an egg to make a chicken, which existed first -- the chicken or the egg? Unless both were spontaneously created at the same time, one of them has to have come first -- that is, one of them has temporal primacy.
But is temporal primacy "a thing" in the law?
We may soon find out.
In Caniglia v. Strom, 20-157, the U.S. Supreme Court granted certiorari to decide whether there is a "community caretaker" exception to the Fourth Amendment that authorizes police, in certain circumstances, to enter a home without probable cause or a warrant.
The theory underlying a community caretaker exception is straightforward. Police are expected to be "jack[s and jills]-of-all emergencies" and thus wear many "hats," some of which are "totally divorced from the detention, investigation or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441 (1973); United States v. Rodriguez-Morales, 929 F.2d 780, 784 (1st Cir. 1991). When police are engaged in these other activities, they need more "elbow room." Caniglia v. Strom, 953 F.3d 112, 124 (1st Cir. 2020). In this respect, the community caretaker exception has poached from "special needs" doctrine because it grants government actors engaged in non-law enforcement activities -- such as public schools and public employers -- greater leeway. See Board of Education v. Earls, 536 U.S. 822, 829-30 (2002); City of Ontario v. Quon, 560 U.S. 746, 760-61 (2010).
As a general rule, the Fourth Amendment requires police to have probable cause and a warrant to enter a home. California v. Carney, 471 U.S. 386, 402 (1985). The community caretaker exception does away with both requirements, although the courts disagree on precisely what lesser showing is required.
Some courts have adopted a two-part test: A home entry by police acting in their capacity as community caretakers is valid under the Fourth Amendment as long as the entry is "within the realm of reason," and entry is within that realm if (1) a reasonable police officer in the same situation would entertain a "reasonable belief," based on "articulable facts," that there are "solid, noninvestigatory reasons" for the entry, and (2) the entry is "narrowly circumscribed, both in scope and in duration, to match what is reasonably required to perform community caretaking functions." Caniglia, at 122-32; United States v. Smith, 820 F.3d 356, 360 (8th Cir. 2016); United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006). The "reasonable belief" required is less than probable cause, and entry need not be "the least intrusive means." Quezada, at 1007; Smith, at 360; Caniglia, at 132.
Other courts have held that whether a community caretaking entry is valid depends upon a balancing of "the urgency of the public interest" in safety against "the private interest in preventing the police from interfering with a person's property." Rodriguez v. City of San Jose, 930 F.3d 1123, 1138 (9th Cir. 2019).
The community caretaker exception originates from the U.S. Supreme court's 5-4 decision in Cady. Citing the "community caretaking functions" of police, the court upheld a warrantless entry into an abandoned vehicle where police had reason to believe the vehicle contained a gun that "vandals" might find and use to harm others. Cady, at 437, 441, 444-48. Cady took pains to emphasize that the search there was of a vehicle, and highlighted the longstanding "distinction" in Fourth Amendment jurisprudence "between motor vehicles and dwelling places." Id. at 441, 447-48. In doing so, Cady did not decide whether the community caretaker exception could justify a warrantless and probable cause-less entry into a home.
The need for such entries can and does arise, such as when police have a reasonable belief that a mentally unstable or suicidal person inside a home has access to a gun or to another occupant who could be harmed. Where the situation gives police probable cause to believe they need "to render emergency assistance to an injured occupant or to protect [the] occupant from imminent injury," the court has held that warrantless entry is permissible under the exigent circumstances exception to the Fourth Amendment. Brigham City v. Stuart, 547 U.S. 398, 403-04 (2006) (emphasis added). Where the danger is not so imminent, is entry permissible under the community caretaker exception?
On that question, the lower federal courts have separated. The 1st, 6th and 8th Circuits have held that the community caretaker exception can justify entry into a home. Caniglia; United States v. Rohrig, 98 F.3d 1506, 1520-21 (6th Cir. 1996); Quezada. The 3rd, 7th and 10th Circuits have blanched at that conclusion and instead confined Cady to vehicle searches in order to reaffirm the sanctity of the home. Ray v. Township of Warren, 626 F.3d 170, 177 (3d Cir. 2010); Sutterfield v. City of Milwaukee, 751 F.3d 542, 550-54 (7th Cir. 2014); United States v. Pichany, 687 F.2d 204, 208-09 (7th Cir. 1982); United States v. Bute, 43 F.3d 531, 534-35 (10th Cir. 1994).
The 9th Circuit is scrambled: It initially limited the community caretaker exception to vehicles, United States v. Erickson, 991 F.2d 529, 531-32 (9th Cir. 1993), but more recently applied it to a home entry, Rodriguez, at 1139-41.
California has moved in the opposite direction. In People v. Ray, 21 Cal.4th 464 (1999), a three-justice plurality upheld entry into a home under the community caretaker exception. Twenty years later, the California Supreme Court in People v. Ovieda, 7 Cal. 5th 1034 (2019) unanimously rejected Ray and held that community caretaker exception applies, if at all, only to vehicles. In reaching this conclusion, Ovieda repeatedly cited the absence of any U.S. Supreme Court precedent applying the exception to home entries. Id. at 1038, 1049, 1053.
Caniglia may change that.
If it does -- in other words, if the U.S. Supreme Court holds that there is a community caretaker exception to the Fourth Amendment that can justify some warrantless entries into a home -- what becomes of Ovieda?
To the extent a defendant in a criminal case moves to exclude evidence found in a home entry justified by the community caretaker exception, Ovieda would no longer be good law in light of the California Constitution's Truth-in-Evidence provision, which prohibits California courts from suppressing evidence that would be validly admitted under the federal Constitution. Cal. Const., art. I, section 28(f)(2); People v. Lenart, 32 Cal. 4th 1107, 1118 (2004).
But where a person is suing the police for damages in a civil action arising out of a home entry resting on the community caretaker exception, the continued validity of Ovieda is less clear. The California Constitution also protects against "unreasonable seizures and searches," Cal. Const., art. I, section 13, and this provision has "independent force" that is not "dependent" upon the meaning of its federal counterpart. American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 325 (1997).
Although violations of the California Constitution alone are not actionable under 42 U.S.C. Section 1983, Ritschel v. City of Fountain Valley, 137 Cal. App. 4th 107, 116 (2006), they may be in a tort action -- at least for violation of its "Fourth Amendment." See Julian v. Mission Community Hospital, 11 Cal. App. 5th 360, 392 (2017) (noting split of authority on whether there is a stand-alone private cause of action for damages under Cal. Const., art. I, Section 13).
Will the California Supreme Court keep Ovieda alive by resting it on the California Constitution's "Fourth Amendment"?
People v. Buza, 4 Cal. 5th 658 (2018) may preview how the court might approach the issue. By a 4-3 margin, Buza held that, when interpreting California's "Fourth Amendment," it would give "respectful consideration" to the then-existing meaning of its federal counterpart by asking whether there were good reasons to "reject" that meaning. Id. at 684-686. The dissenters objected to this approach, partly because it would mandate deference to a federal interpretation if it happened to exist at the time -- but not otherwise. Id. at 701-02, 707-09.
Even if one ignores that Buza was decided by two jurists no longer on the court, how would the Buza majority's temporal approach work where, as here, there was no U.S. Supreme Court case on point at the time Ovieda was decided -- but, thanks to Caniglia, there might be at the time Ovieda is reconsidered? Which should be treated as coming first -- Ovieda or Caniglia?
It is a potentially vexing question, one that is certainly not over easy.