Thread by @OrinKerr

Here's thread on today's oral argument in Caniglia v. Strom, on the community caretaking exception. Thread will be thoughts on the argument, not an overview of the case, which others have done.

Briefs: supremecourt.gov/search.aspx?fi…

Oral arg transcript: supremecourt.gov/oral_arguments…

First up, Roberts questioning counsel for petitioner, the plaintiff in the civil case. Roberts starts with what I think is plaintiff's hardest hypo: what about wellness checks on seniors who haven't been heard from? Not a surprising question.

https://twitter.com/OrinKerr/status/1374088006680780801

If I understood P's argument, their position is that you can't search to do a wellness check, but eventually, after a few days, there will be probable cause to get a warrant to search for a missing person.

Not sure I get that answer. If a person is missing, can you get a warrant to search their home, perhaps for the body? Not sure there would be PC for that. And what's the crime? May depend on the state's law, not sure.

I've been enjoying J. Thomas's questions, although I don't think his Qs were as sharp today. First he asks, where in the text of the 4A does it say you can't do a wellness check? But that gets you nowhere: The next says nothing either way. Where does the text say you *can*?

CT then asks about how this is legally different from just ringing on the doorbell, and why entry to check on someone is a search. But ringing on the doorbell is within the implied license of Jardines, and no is disputing that physical entry into the house is a search.

Breyer is focused on the dynamic I discussed yesterday: If you start from a few recurring fact patterns that you want satisfactorily answered, you then need to fit it into the doctrine, and you have scope problems either way.

https://twitter.com/OrinKerr/status/1374087267472482305

Breyer raises one of the more Breyeresque hypos I have seen: If rats were seen leaving a house and there was reason to think the rats had Bubonic Plague, could the house be searched w/o a warrant?

Alito has a lot of hypos for P, focused on how much cause is required under these exceptions and what kind of reasons to enter are permitted. He starts with an interesting hypo: What about entry to stop a suicide? Is that allowed, and when?

Alito's next hypo: What about a situation where a person in need of care has been denied care or is being abused? Does the govt need a warrant, or are there situations in which warrantless entry is permitted?

Sotomayor opens with an answer, not a question -- she has answers to the Chief's and Alito's Qs, of why she thinks those cases can be covered w/o the community caretaking exception.

Note that at this point the argument is unfolding basically as I expected in my recent thread. There are the key hypos the Justices will want covered, and then there's just a matter of which authorities should be construed to fit them.

https://twitter.com/OrinKerr/status/1374086050079895552

Kagan's line of questioning is kinda awesome, but takes some explanation. In Camara v. Municipal Court (1967), the Supreme Court ruled that home entry for safety inspections requires a warrant, but that it can be a special new kind of warrant -- an administrative warrant.

Administrative warrants are pretty murky, but Camara says that can be area warrants, not particularized to homes. They're sort of like warrants, but weird and watered down for safety inspections.

Kagan wants to know, what would a permitted admin warrant scheme for this be?

This is interesting b/c it puts a third option on the board: Not just (a) crim warrants vs. (b) no warrants, but also, a possible (c) administrative warrant scheme.

Gorsuch is pushing back on the admin warrant idea, suggesting it would gut the 4th Amendment too much. That warrant requirement would be too watered down, in light of the 4A's original meaning.

Gorsuch has a strong civil libertarian streak in 4th Amendment cases that is under-appreciated, perhaps because it is phrased in textualist/originalist language that most civil libertarians don't speak.

Kavanaugh returns to the elderly-person-who-needs-help hypo the Chief raised, and the suicide hypo Alito raised. BMK was clearly uncomfortable with P's answers to this so far.

Barrett wants to know how reasonableness changes if the govt sends a social worker instead of a police officer to do a wellness/welfare check.

Barrett also presses counsel on how an administrative warrant scheme might work. (A challenges here is that that counsel is repping an individual, not an institution, which changes the client's interest; as long as *this* is ruled to violate 4A, not obvious why client cares.)

Next up, counsel for respondents, who are the officers and govt officials sued as civil defendants.

The Chiefs opening hypo: Cats in the curtilage! I assume they don't have the plague, just need rescuing.

Counsel doesn't quite understand the question, though, it seems to me.

Thomas has a precedent question: Wasn't Cady specifically about cars? How do you extend it to houses?

Breyer wants to know if a Rhode Island statute on these topics has struck a reasonable balance of interests and might be a useful model.

If I read SGB's Qs correctly, he's considering perhaps saying community caretaking is just about cars but that the court should create another exception that plays a similar role for houses, but with its own balance.

Alito suggests that Respondent's view of community caretaking is too broad; couldn't it be narrowed by limiting it to particular interests? May have to sacrifice the cat in the curtilage, though.

Sotomayor again has more of a comment than a question, ultimately arguing that respondent's position needs limiting principles and hasn't offered any.

Kagan presses Respondent's counsel on why the suicide and elderly hypos couldn't be exigent circumstances.

Gorsuch asks if the common law allowed special rules for entry beyond exigent circumstances.

Gorsuch also suggests he would deal with the elderly and suicide hypos under exigent circumstances.

Kavanaugh asks, is this really about emergency aid, not community caretaking?

Barrett: Can the police enter if they see a lot of people inside a house w/o masks during COVID?

Next up, US as amicus in support of the defendants.

The Chief is back with his cat in the curtilage hypo. Do you let the cat die?

And now it's a Van Gogh that faces likely ruin from a water leak. Can officers enter to save the precious art? In other words, can preserving property interests trigger the exception?

Thomas suggests that the common law doesn't help here, but he wants to know if there are any analogies to common law authorities.

The rest of the questioning was largely repetitive of earlier questioning, although with more discussion from Gorsuch, Kavanaugh, and Barrett about fitting into the common law.

It's not clear common law says much about this case, but if nothing else it's a signal for other 4A cases: You need to brief and know your common law history. (That reminds me, my forthcoming article "Katz as Originalism" is forthcoming in the @DukeLawJournal, more soon....)

In summary, my instincts from my thread earlier this week seem more or less right: There's lots of concern about certain key hypos and how they fit, with lots of interdependence re scope of various exceptions.

https://twitter.com/OrinKerr/status/1374086050079895552

Beyond that, watch out for the escaping rats with the bubonic plague and someone please help the cat stuck in the tree inside the curtilage. Thanks.

BTW, if I had to guess, I would guess that they'll hold that (a) the community caretaking exception of Cady only applies to cars, but that (b) there is a narrower exception to the warrant requirement that applies to homes to deal with the elderly-person and suicide hypos, and....

.... (c) they'll state the test in general terms, (d) analogize it to some common law powers, and (e) remand to the lower court to apply its test. My guess, anyway. As always, stay tuned.