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tv   Caniglia v. Strom Oral Argument  CSPAN  March 27, 2021 4:16pm-6:01pm EDT

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the supreme court heard oral argument in a case deciding whether police can enter a home without a warrant and seized weapons owned by a person perceived to be endangering their own life or the lives of others. the court has through june to issue a ruling in caniglia v. strom. >> the honorable chief justice and the associate justices of the supreme court of the united states. all persons having business before the honorable, the supreme court of the united states authorized to give their attention where the court is now sitting. >> we will hear arguments this morning in case 2157, caniglia v. strom. >> mr. chief justice and maia please the court, the first
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amendment recognizes the sanctity of the home by drawing a line at the door. respondents warrant the seizure of his lawfully possessed gun from his garage violating the fourth amendment. the first circuit tried to get around the warrant requirement by creating a new request, but it required a standardized search of the car in police custody, it does not interest the searching of the home. nearly every page of the court's decision relies on the constitutional differences between houses and cars. respondents in the united states claimed that the warrant requirement is implicated when officers asked for not investigatory reason, but in case after case, the court has applied vista home.
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-- has applied this to home. the line between investigatory and nondomestic -- nine investigatory actions is unclear. this would eviscerate the fourth amendment. finally, there is no good reason to create the sweeping new rule that respondents ask for. where there is a true emergency or people asked to be helped, existing law already allows an exception to the requirement. states respect the fourth amendment, including red flag laws and involuntary commitment procedures. but absent consent or circumstances, the fourth amendment does not allow officers to conduct searches or seizures pursuant to their own discretion. i would be happy to answer the court questions. >> let's say the police get a call, it is 8:00 at night, the
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person says their elderly enable , they invited her to dinner at 6:00 and it is 8:00, she is never late for anything. they have not seen her leave the house, and they are worried, they asked the police if they can come over and check it out, the police do that, they go onto the property. they cannot see much through the windows but the back door is open, they go in. she is not there but she comes back and says, what are you doing here, sues him for violating her fourth amendment rights. that she when? -- does she when? mr. dvoretzky: you have to analyze whether the police had an objective basis. >> do they have an objective basis because the neighbors says that she has not seen her all day, she did not come over for dinner, she is never late, is that enough? mr. dvoretzky: that alone would
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not be enough. you would need some additional facts do it suggest there was a true emergency and there was no other alternative for the police. there are other things that can be done, we could call another family member. >> family members are not answering the phone either. she's an elderly person. when they are not able to reach her by phone, they want to come back to make sure she isn't lying on the floor. >> absent established facts, the police cannot go in without a warrant. that is the basic command of the fourth amendment. >> ok, it's 24 hours later. can they go in then? >> there is a line drawing question and the
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facts added to the hypothetical. 24 hours would not be enough. perhaps they could get a warrant for missing person. just the fact that somebody for 24 hours might choose not to show up for dinner or choose not to answer the phone. >> those aren't the only facts, there are more facts. the neighbors haven't been able to reach her, she's late, never been late. none of that matters. the difference between 8:00 at night and 8:00 the next day, maybe she dies. >> if all you have is 24 hours, that wouldn't be enough. maybe if you have those fact and a couple more days, that wouldn't -- that would be enough. ultimately it comes down to whether the police have an objective basis for thinking there is an emergency requiring them to go in.
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>> community caretaking, doesn't matter what the community is like? could it be that someone like andy mayberry is all right because people expect him to keep track of things but kojak isn't? >> at him think that police would have different license to enter the home based on those sorts of considerations, no. >> justice thomas? >> thank you mr. chief justice. counsel, i'm going to return to the chief justice's point. where in the fourth amendment is a wellness check precluded? >> the basic command of the fourth amendment, its warrantless intrusions of the home unreasonable exigent
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circumstances. if a wellness check were justified based on exigent circumstances in light of the facts and circumstances presented to, the fourth amendment in that circumstance would allow it. >> what does the fourth amendment say? the words that preclude a wellness check. not the -- not the exceptions and not the jurisprudence. >> the right to be secured will not be violated. the court has interpreted the requirement of unreasonable search and seizure to mean search of the home is unreasonable absent a warrant. >> you are skipping a step. the mere fact, what if a police officer simply comes on to european -- porch for a local
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charity? how is that different from a wellness check? >> the police officers are allowed to come onto the porch for a wellness check if all they are doing is knocking on the door to check on you. i don't think they can go farther than that if they don't have consent to go into the home and go inside it. simply coming to the porch and knocking on the door, whether it is to check on wellness or collect for charity, i don't think that is prohibited. >> i think the point of the chief's question is that if the elderly woman doesn't show up, she could be sick, she could be watching television, she could be doing any number of things. but the, you know, maybe we agree that the officer shouldn't through the windows. in search of contraband or
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something that looks like a search. to see if she's ok. how does that become a search? looking for someone to determine whether that person is ok. how is that a search or seizure? >> i think it is a search or a seizure when the home without consent and invade the privacy of the home and violate in that instance the right of the people to be secure in their home. >> he goes in, he finds her unconscious on the floor. can she sue him? >> if he goes in and it turns out that there was an actual emergency? >> yes. i mean he wouldn't know unless he enters the premises. he goes in like the chief said, the neighbors invited her to
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dinner and she's never late and he finds that she has actually fallen and broken her hip. >> while it's not a hindsight inquiry, i think if those were the fact, -- facts, if he goes in and happens to have guessed correctly, that would not absolving a officer of liability, but i do think that if the officer has an objective basis before going in, that would be emergency aid in than that situation there would be no for the moment violation. >> thank. >> justice breyer? >> my factual question is, the police, they went to the porch, they saw and took your client and took him and then they went back and got the guns. how long after they put him in the ambulance or wherever they put him, how long after did they get the gun?
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>> i can't tell you exactly how many minutes or seconds, but it was all part of the same visit. all part of the same visit. >> is 30 minutes too long? is five minutes too short? any idea? in the second question is a legal question that i'm having a hard time with. you could apply exigent circumstances and i think wait a minute, there are so many situations where it's obvious the police should enter. baby crying for five hours, no one seems to be around. rats coming out of the house at a time when rats carry serious disease. a person goes into the house that the police think the people inside the house don't know that this person has a serious communicable disease for older people who live in the house. we can all think of dozens of
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instances and if we call those exigent circumstances, we weaken the circumstances and if we move to a thing like caretaker, i don't know what we do. so what is your answer to my dilemma legally? exigency circumstances, special ones are what? how do we do it? >> the way this court has understood exigent circumstances is a true emergency -- >> to narrow. there are lots of health emergency. what about the baby crying, the old people don't know they will be exposed to deadly viruses, etc.? we can think of lots of circumstances where it's very reasonable for a policeman to go into the house. and you can, too. we both can. am i supposed to move those rules from a different context to this context or what? >> to take a couple of your
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examples, a crying baby i think would be a true emergency. but rats, that's what was at issue in the frank case. >> try reading the plague, something where a rat coming out of the house could give people bubonic plague. it's easy to invent hypotheticals. or do we make no rule and say that this is too much or too little and it was long term a different thing? i'm trying to put my dilemma. i want your answer. >> justice breyer, i think you apply the exigent circumstances doctrine the weather court always has, true emergency. if there isn't one, there may be other alternatives that the police can quickly take advantage of. that's what they contemplated in the housing code issues case and if it is neither a true emergency nor something that can
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be addressed in that sort of manner, i think the fourth amendment requires the police not to go in in that situation. >> thank you. >> mr. salida? >> the way that this case has been presented to us by both sides is most unhelpful. because it conflates several separate issues. one, whether a warrant is needed under certain certain just certain circumstances. i know that's what you want to talk about. i want to put that aside and talk about the issue that comes before that. what are the permissible reasons for a search or a seizure and the amount of evidence that a government officer has to have to conduct the search or seizure? i would like to give you some situations and ask you to tell us as briefly as you possibly can whether a search would be
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permitted under these circumstances and the amount of information that would be needed for a nonconsensual search by some governmental officer, putting aside the question of whether it's police officer someone else. a person in the house may commit suicide where suicide is not a crime. is that a permissible reason for a search? >> for a search by an officer without any other authorization? >> without consent. >> without consent. >> that's not a permissible reason. >> even if they have probable cause to believe the person will commit suicide? >> i mean i think it depends on the immediacy of the situation. >> putting aside the warrant requirement. a person may commit to the probable cause that the person commits suicide, he reason to enter. >> that may be a reason to enter
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. >> does the officer need probable cause, reasonable suspicion or something else? >> i think the officer needs to have an objective basis to believe that the suicide is going to be immediate and therefore the officer must enter an order to prevent it. >> going to the warrant requirement, probable cause, reasonable suspicion or something else? >> i think that they are related because i think for the warrant requirement you are asking something similar to a probable cause inquiry, a very reasonable basis on which to believe that the officer needs to go in. these are all intertwined. >> let me go on to a second example. a vulnerable person in the house , for example a person with a disability, elderly person with dementia denied necessary care.
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mr. dvoretzky: i think you would need probable cause in that situation. but that is a criminal situation. so you could get a criminal warrant there. justice alito: you need to be able to get a criminal warrant? mr. dvoretzky: from the hypothetical as i understood it, that would be criminal abuse of an elderly individual. if the police suspect that, they need probable cause that that crime is being committed. justice alito: a child calls the police and says, i live 500 miles away. my mother has mild dementia. last time i spoke to her, she said something was wrong. she is upset. but it was hard to make sense of it, and now when i call, the caretaker always provides -- gives me excuses why my mother cannot speak on the phone. can the police do anything? mr. dvoretzky: absolutely. i think that is an example of
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having the basis to believe that a crime is being committed. the police could seek a criminal warrant. justice alito: you think that is probable cause? mr. dvoretzky: that sounds to me like probable cause based on -- at least to investigate and perhaps get a warrant based on a tip that a crime is being committed. justice alito: thank you. chief justice roberts: justice sotomayor. justice sotomayor: counsel, i would be hard-pressed to think that any judge would not consider the hypothetical price by the chief justice as justifying a knock and entry by police officers. you have a neighbor who expects -- suspects -- expects an elderly woman to come visit, a known sister who comes and tells the police she is never late. and it is now -- she is really late and there is no answer. i don't see how under any
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circumstance, either the emergency aid or emergency doctrine would not permit that search. if that is the case, then maybe justice buyer -- justice breyer is right. if i disagree with him and believe that both the emergency a doctrine and the exigent circumstance doctrine would permit most entries where there is reasonable cause to believe that someone might be in need, what does that do to your argument? mr. dvoretzky: i don't mean to fight too hard on the hypothetical that the chief justice presented, the emergency aid doctrine, if that could cover that sort of situation, it would also cover lots of other situations that the other side
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is positing today, require a community caretaking exception. the emergency aid dr. covers true emergencies, if there is reasonable cause to believe someone is a need. that does not help the respondents in this case. they have not argued the circumstances. they have waived the circumstances. justice sotomayor: i don't disagree with you and i think you can always posit an argument in the middle. and then officers would have qualified immunity. but my point to you is, aren't you trying to break -- you are right, the community caretaking exception was created because of some of these hypotheticals. but i think at the core, and i thought that was your argument, is that there has to be some sense of eminence he. some sense of a real problem going on, correct? mr. dvoretzky: that's absolutely right.
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the evident circumstances doctor and requires a few -- a true emergency that has to require immediate action. if you had a reasonable cause to believe someone is in need, let's say the emergency -- the circumstances doctrine is satisfied. justice sotomayor: that's what i -- that is what your brief pointed out. that many of the circumstances that have been looked at previously by other courts under the community caretaking exception are covered by either the emergency aid or exigent circumstance doctrines, correct? mr. dvoretzky: yes, that's right. justice sotomayor: thank you. chief justice roberts: justice kagan. justice kagan: you mentioned a bit ago the possibility of administrative warrants. i would like to explore that a bit. suppose a locality, suppose you were to win this case. and the locality said, you want to set up a good skiing of giving permission for the kinds
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of welfare checks that we have been doing. what would that scheme look like? and how far away would it be from what we think of as the kind of scheme that produces criminal warrants? mr. dvoretzky: justice kagan, i think it would depend on what the state is trying to accomplish with the welfare check scheme. the two sorts of schemes that have proliferated in the states are red flag laws and involuntary commitment laws. the red flag laws in many states allow warrants where guns -- where taking guns from people is necessary because they pose a risk of harm to themselves or others. justice kagan: on what standard do those laws operate? is it something lower? could it be something lower? mr. dvoretzky: it is usually a probable cause standard. the laws typically provide specific criteria for a court to consider about whether the person poses a risk. justice kagan: suppose a locality said probable cause is too much.
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we should use a reasonable suspicion standard. would that be appropriate? as long as it went through a third party. some judge for other state official. mr. dvoretzky: i think the fact that it goes through a third party is a key part of that scheme. i think that is a significant factor under the fourth amendment. i think it would be more defensible under the fourth amendment if it required probable cause. i don't know depending on the details of the scheme, whether some slightly lesser standard would be sufficient. probable cause, by a judge, would be the gold standard of such a scheme for fourth amendment purposes. justice kagan: i guess i'm less interested in the gold standard than in the dividing line between constitutional and not. but you also said these red flag laws were about procuring guns in the hands of people who would do harm to themselves or others. do you think constitutional he, you could broaden those laws to encompass schemes like the chief
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justice is hypothetical? mr. dvoretzky: i think you could. i think states can provide for a warrant for a welfare check, as long as there is an objective basis for believing there is a person inside, in need. in that situation, they might not have to be a true emergency, because it is not a police officer making the judgment in his or her discretion on their own, but rather you have a neutral decision maker. i'm not aware of states having done that. i think they probably could as long as you had an objective basis found by a judge by a neutral decision-maker. justice kagan: can a states that have done this, what neutral decision-makers are they using? are they using judges, other people, what would be constitutionally permissible? mr. dvoretzky: they are using judges. justice kagan: do you think that is required? mr. dvoretzky: i think some sort of a neutral decision-maker is a required -- is required. whether they could have some
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kind of dish -- of different decision-maker, that might be fine. justice kagan: one last question on a different subject. you said that the respondents here had waived the arguments that this was a true emergency. putting the waiver question aside, why wasn't this a true emergency? mr. dvoretzky: justice kagan, the only basis the officers had for thinking that he was suicidal was a statement he made the night before. 12 hours had passed since that statement. he was in the home with a gun during that time. nothing had happened. the officer said when they spoke with mr. ken ailey, he seemed calm and normal and polite. those circumstances don't make out an emergency that requires immediate action without involving a mental health professional, a neutral decision-maker and so forth, rather than the officers discretion. justice kagan: thank you. justice gorsuch: good morning, counsel. i want to pick up where justice kagan left off. do we need to or should we
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decide whether act -- extenuating circumstances or caretaking exception applies to these facts, or do you want us to resolve the legal question and remanded to the first circuit? mr. dvoretzky: we are not asking you to resolve it. we don't think it would be appropriate for you to resolve whether circumstances applied it to those facts because of the waiver. as far as caretaking is concerned, we are asking you to hold as a legal matter that the community caretaking -- caretaking doctrine does not justify searches or seizures from the home. because that is the only basis the respondents i've given for the searches or seizures here, there would be no re-manned required that that would be a judgment or favored at that point. justice gorsuch: your friends on the others argued for the fourth amendment permits seizure or home entry that is reasonably necessary to protect health or safety. that is their test. what is wrong with that? mr. dvoretzky: for starters,
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just as gorsuch, that is contravened by a number of this court's cases, including camera and clifford and barlow's and patel, where even though there was a public safety rationale offered for the search, the court nevertheless required an administrative warrant before government officials could search from the home. so it is contrary to this court's caselaw. it is also a rule that would swallow all other sorts of fourth amendment doctrines. virtually any criminal situation can be described in health or safety terms. you would not need the hot pursuit exception because police could always say that they are acting to protect the safety of potential occupants in the home, in light of having a criminal in their midst. it would not have to be in a hot pursuit situation. you would not need a warrant to enter the home in order to arrest somebody, because the police could, in that
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circumstance, say it would be dangerous for the other occupants of the home to have a killer in the home with them. any situation involving drugs and alcohol, police could just say they were going into the home in order to make sure that the suspect was ok. that would be contrary to this court's decision in welch. the governments rule here is contrary to lots of this court's president and would create an exception that swallows rules that are essential to the fourth amendment. justice gorsuch: excepting that that may be the case, and everything can be described as health or safety, i mean, what does the government do that does not involve health or safety? how does it help to have an administrative warrant requirement? i understand the common law requires -- treats the home as an asylum and castle of defense that was virtually impenetrable. absent some sort of an immediate -- immediate concern of physical injuries. as you described in your brief. if the government can get an
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administrative warrant to come into test for illness, check the temperature of the house, whether it is too hot, too cold, install energy saving devices because that helps health or safety, if that is what you are now conceding, what is left of the fourth amendment? mr. dvoretzky: with an administrative requirement, you are involving a neutral decision-maker. justice gorsuch: i understand that. but the neutral decision-maker is employed by the government. state governments can organize themselves how they wish. may be an executive officer on a showing of reasonable suspicion, that the house might be too warm, too cold. is that really a reasonable search or seizure in light of the fourth amendment's history? mr. dvoretzky: if you had one executive officer providing authorization for another, i think that would be problematic. if you had a truly neutral decision-maker like a judge,
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having met decision-maker involved prevents arbitrary harassment by officers. it gives the occupant of the home some notice in assurance that this is approved and is not simply the officer acting on his or her own in a way that goes to the heart of the fourth amendment's concern. justice gorsuch: the law of the land there. my time has expired. chief justice roberts: justice kavanaugh. justice kavanaugh: thank you. good morning, mr. dvoretzky. mr. dvoretzky: good morning. justice kavanaugh: i think the circumstances in which this issue is going to matter are two big circumstances where it will matter, and they are older people who fall and suicide. i want to focus on those two things. the chief justice's questions focused on older people who fall. the statistics on that are quite shocking, as i'm sure, they are huge. and many of us, of course, will, when there is a neighbor you have not seen or a parent who
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lives in a different place will, instead of barging into the house yourself, or calling if the parent lives in a different place, calling a neighbor to barge into the house, you will call the local police officer who you might have a relationship with, particularly in smaller towns and communities and ask them to check in. when can you do that consistent with the for them and? -- fourth amendment? mr. dvoretzky: i think you can always call the police -- justice kavanaugh: when can the police go in? i thought your answer to the chief justice was startling. mr. dvoretzky: i think the police can go in when they have reasonable cause to believe there is someone in need. justice kavanaugh: ok. let's break that down. you have not seen the person in a few hours or you always talk to your parent in florida on a sunday night and they were not there. so on monday, you call the police. what happens? mr. dvoretzky: i think perhaps
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in that situation, the police, depending on how many facts you give them about your parent generally being reliable and not missing calls, not missing appointments, the more facts of that sort you add to the hypothetical, i think the more likely it is that the police could quite possibly invoke emergency aid as a basis for going into make sure the person is ok. but you -- the police would need to have that objective basis to think this is somebody in need. that is what -- justice kavanaugh: it will not be perfect information. it is going to be a neighbor who cares about another neighbor and has not seen them, or a parent. what i'm worried about is the longer you are in the house and no one comes to get you, you're more likely to die. from the fall. the statistics are huge on older people dying from falls. mr. dvoretzky: it is never going to be perfect information, and that is why it requires an objective basis, not a certainty.
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simply an objective basis in the moment. justice kavanaugh: let's talk about suicide. do you know how many suicides by gunshot there are everyday in the u.s.? mr. dvoretzky: don't have the statistics. justice kavanaugh: every day on average, every single day on average, there are 65 suicides by gunshot in the united states. on average. everyday. and police officers are critical, when a neighbor, when a family member as in this instance can help prevent that. so why under the facts here is preventing suicide when a spouse says, i am fearful that my spouse will commit suicide? that is not good enough? mr. dvoretzky: justice kavanaugh, what misses canigila said in this case is she wanted the officers to check on mr. canigila and make sure he was ok. they found him ok.
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he was calm, normal, polite and speaking to them. and 12 hours had passed since the statement that he had made. whether or not somebody in that situation might benefit from help, that is not an -- justice kavanaugh: the police officer is in the moment, and they don't have time to do all of those. they are faced with a spouse, they are reacting to a situation. you know what if they say, that's not enough and the person commits suicide, but is not a good result. that is what your position, unfortunately, the starkest form of your position, will lead to officers backing away from going into houses when older people have fallen or there is concern about that, or when there is a risk of suicide. mr. dvoretzky: justice kavanaugh, in a situation like this, the officers could have involved a mental health professional. justice kavanaugh: time is of the essence. in these cases.
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55 -- 65 a day. mr. dvoretzky: if it is a situation where the officers have an objective basis to think time is of the essence, then they can go in. justice kavanaugh: you don't know ahead of time. that's it. i will let you go. chief justice roberts: justice barrett. justice barrett: good morning dvoretzky. i have a question. you are talking about finding a neutral decision-maker. you said in your brief about police being engaged in the competitive enterprise of sorting out crime. what if, and some communities are doing that because sometimes mental health checks don't go so well, and people end up getting hurt or the police come after someone who is mentally ill, pulls a gun on the police or a knife. things go very poorly. and sometimes need -- and sometimes the person who is the subject of the welfare check ends up being hurt or killed. some communities are creating a situation where social workers go in. would that be reasonable?
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do you need to have an administrative scheme or administrative warrant or something like that? what if it is not the police who goes in bart -- but a community where you have a social worker, and the social worker goes in and the situation that justice kavanaugh is describing? mr. dvoretzky: i think the social worker, if a government official would still be subject to the fourth amendment. justice barrett: i know they would be subject to the fourth amendment, but would it satisfy the fourth amendment? mr. dvoretzky: i think it might because the social worker would be better equipped than a police officer to determine if there is a real emergency. if the social worker shows up on the scene and decides in his or her professional judgment that i have to go in, i think that would go a long way toward showing that there were circumstances. justice barrett: no, no. the police can decide if there are extenuating circumstances. i'm asking you if whether it affects the reasonable miss calculus if you have the kind of neutral person that you are
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positing would be appropriately involved in an administered foreign scheme, if that kind of person shows up and says yes, there is an old person who has been in there and rather than having the police go in, the social worker will go in and check on the elderly parent in florida who has not been heard of. mr. dvoretzky: i think that likely would satisfy the fourth amendment. the framework i would use to think about that is that the social worker is making a determination of exigent circumstances. justice barrett: i think the answer to my question -- you are answering my question by saying no, the same standard would apply to social workers. that's fine. but you are saying exigent circumstances are nothing, no matter which official is making that judgment. mr. dvoretzky: i think that's right. if the social worker were simply going in a stone the judgment that there is no exigent circumstance but this person could benefit from help, know, i don't think that is a determination the government can
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make consistent with the fourth amendment. justice barrett: the administered of schemes you are imagining, it sounds odd to my ears to talk about probable cause, to think that someone would benefit from help. we use the probable cause requirement to doc about probable cause to believe a crime has been committed. are there circumstances where probable cause or reasonable suspicion, those sorts of standards have been used outside of the investigative context, when we are talking about crime? mr. dvoretzky: there are. and that is what this court called for in the camera case. red flag clause and involuntary commitment laws which i mentioned earlier were an example where the probable cause standard is applied. it has been applied in other context, like housing code violations and the like. justice barrett: housing code violations sounded different to me. you have probable cause to believe there has been some sort of violation, even if it is not criminal. it sounds odd to me to apply that probable cause standard to
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the kinds of situations the chief justice or justice kavanaugh where positing, where you have an elderly person who needs help. there is no violation. mr. dvoretzky: there is no violation but the way the states have adopted the probable cause standard, and it is consistent with camera, is probable cause means an objective basis to believe, fill in the blank, that somebody ought to have guns removed, that they pose a risk of harm to themselves and so forth. justice barrett: thank you. chief justice roberts: a minute to rounds upcoming counsel. >> thank you, mr. chief justice. the fourth amendment protects the home in a special way. when it comes to a home, a reasonable search requires a warrant unless there is consent or a true emergency. in number of the court's questions have focused on the practical consequences. as some of the questions suggested, the exigent circumstances doctrine and consent will cover the vast majority of situations that one might be concerned about, where
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police can point to an objective basis to think there is a need to go in, they can do so. where somebody asks for help, they can do so. in some of the other scenarios, states have come up with and continue to come up with administrative warrant type regimes that meet the needs that the respondents and the united states are positing in this case. the problem with the rule the other side is positing is that it would allow people to go into the home, police officers to go into the home without a warrant in situations that would essentially blow up numerous other fourth amendment doctrines that this court has held a very important to protect the sanctity of the home. chief justice roberts: thank you, counsel. mr. to cysto. >> thank you. may it please the court, the question presented to weather caretaking by police and first responders, under circuit -- under certain circumstances, can be placed in the home without a warrant. it should. the petitioner has an absolute
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position under no circumstances should that occur inside a home, except upon exigent circumstances. this absolute all or nothing approach is conjugal to the reasonable standard of the fourth amendment. the very touchdown of the fourth amendment. there may be circumstances that allow for the caretaking of the home to accent a warrant on potential harm is not so clear, but the need to respond could be immediate. time could be of the essence. this court and the questions you have asked have outlined some examples of people who are elderly. i use the example of someone who has not gotten his or her mail for three days and lives alone. the potential harm is not so clear. and the need to respond could be immediate. the facts of this case also
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illustrate this point. the petitioner here demonstrated the potential for suicide or harm to his wife and others. the officers reasonably acted, weighing the intrusions against the risk, and the timing of the harm. in this case, the absolution position taken by the petitioner not allowing the caretaking actions, may have resulted in death or injury. that is why an absolute prohibition against warrantless entry is wrong. community caretaking in the home without a warrant should be allowed when it is objectively reasonable to do some. i thank you, mr. chief justice. i welcome the court's questions. chief justice roberts: let's suppose police get a call from a neighbor and it says the johnsons are away. i know they are not here. and they have got this fence around their backyard. it is locked. but there is a cat in the tree. can you come and help get the cat down?
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is that community caretaking? mr. desisto: yes, i think that is community caretaking. here's why. you look at the intrusion and the intrusion is simply climbing a fence and getting up in a tree. you balance that against the privacy right and to me, finding a tree and getting -- climbing a tree and getting a cat does not in fear the privacy right. i think that would be a caretaking activity. chief justice roberts: common law in our cases, the interest protected by the fourth amendment, i think are a little bit more significant than that. the back yard surrounded by a locked fence is entitled to protection as well. you know, the mere cat caught in a tree, you leave it there for a while, it will probably come down on its own. mr. desisto: that's true. that is weighed in the balance of whether or not it is an
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intrusion. the common law reflects criminal investigation. a criminal entry, and entering into a home for criminal services -- purposes. i'm not sure that is an act of way to look at it. caretaking functions are for benign purposes. not for criminal investigations. chief justice roberts: thank. justice thomas. justice thomas: thank you, mr. chief justice. counsel, when i look back at the cases that led to this, they were all cases involving impounded or wrecked cars. how did we get from that to this case, where no warrant is required to enter a private home
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as opposed to searching a car. mr. desisto: kd does speak of vehicles. but the task of katie is essential in applying -- simply a reasonable objective. even katie indicates that there may be differences in the privacy rights when one looks at -- excuse me, there may be differences in the outcome when one looks at the privacy rights in a home versus a car. justice thomas: i'm sorry for cutting you off, but just this point. here's my point. in kd, chief justice rain asked -- chief justice ryan qwest who posits there is a warrant requirement, and we normally say that the fourth amendment standard when it comes to the home, requirements of the fourth
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amendment are met with the warrant to come, but he says this sentence. he writes the sentence. "one class of cases which constitutes at least a partial exception to this general rule is automobile searches." that sounds to me as though that is an exception to the general requirement for a warrant. and i'm trying to figure out how you got from this case to the general case. to the case that he said, to the general rule. you got from the exception to the general rule. i don't understand how we did that. mr. desisto: that sentence is talking about criminal investigations. i use katie to show the caretaking function, then i go back to cases such as georgia
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versus randolph, where the court says, you can't walk away from things that happen in a house that you have to react to. i think we go from the vehicle, but the test remains the same. the fourth amendment has only one test, and that is that searches and seizures shall not be unreasonable. justice thomas: thank you. my problem is if you take a tear katie -- a caretaker exception and read that into the word reasonable, there is no stopping. we don't know how far we will go. but if you are absolute, you may cause a different problem. so we are looking for subsidiary standards. camera says, you need a warrant
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for administrative surfeit -- searches. he uses words like normally and so forth, so there is wiggle room there. what would you think of the standard that rhode island wrote into its law? we write a case that has to do with suicide threats. period. the american psychological association says you must take those threats seriously. that is what we are writing about. a common-law approach, in this case. rhode island says any police officer, and they wrote this after this case began, any police officer can take an individual into protective custody, if the officer has reason to believe he is in need of immediate care and treatment, and there would be a risk of serious harm by reason of mental disability, if he is allowed liberty. what about that? if the officer has reason to believe that there is an
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imminent likelihood of serious harm by reason of mental disability, suppose we said well, for this case, that is a reasonable standard. mr. desisto: it is in the fourth amendment standard. justice breyer: that's what i'm asking you. it is in general laws 1950 6, 40 .1-5-7 and .1. mr. desisto: yes. justice breyer: what do you think of saying, rhode island here has written a standard that is reasonable as applied to this case? and then i will read the sentence i just read you. it does not say probable cause. it's as if the officer has reason to believe, etc. what do you think of itz? mr. desisto: i would go back to the prayer -- to the question presented. the question is whether the community caretaking exception to the fourth amendment extends. for purposes of suicide in rhode
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island, that makes the fight. but that does not answer the question that is before the court. justice breyer: we would say no, that exception is an automobile exception. that's what we said. but that does not mean there is no exception. there are emergencies, and as a -- as applied to a person who is a suicide threat, rhode island law does come up with a reasonable standard that we think does not violate the fourth amendment. what do you think of that? mr. desisto: i would think that helps for suicide -- suicidal issues in rhode island. justice breyer: there is one standard for the country. if that kind of thing is ok for rhode island, it is ok anywhere. i'm trying to get what you think of it. mr. desisto: yes, i agree. chief justice roberts: justice alito. justice alito. justice alito: council, one of the things that is troubling to a lot of people about the caretaking exception is that it
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does not seem to have any clear boundaries. and when you tell us it includes getting a cat down from a tree, that fortifies that concern. so can we narrow this down? let's talk about the reasons why a search may be conducted or a seizure may be conducted. putting aside the issue of a warrant, can we narrow it down to preventing life-threatening injury, or serious injury, or some definable quantity of property damage? do you think it is possible to give it some structure in any of those ways? mr. desisto: i do. i think the most important, obviously the most important goal is preventing injury to life or death. or destruction. major destruction of property.
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i don't think the test though, is any different. because i think when you weigh the interests involved against the privacy rights, things like climbing up a tree to get a cat don't count for a lot. but i think if it is about someone who might die, that does count for a lot. i do think we have prevented many standards for the community caretaking. justice alito: let me just interrupt. what about the amount of information that the government officer has to have? probable cause, reasonable suspicion, something else? mr. desisto: i think it has to be objectively reasonable. probable cause is particularly related to criminal activity. i don't see where it fits. justice alito: it is a
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calculation of probability. it is not an overwhelming requirement. but it is a pretty substantial requirement. reasonable suspicion has a clear meaning. it could be applied in a lot of different contexts. is that what you are advocating? mr. desisto: no, i'm advocating to use the test of the fourth amendment, which is the touchstone. and that is reasonableness. i think if we stick with objectively reasonable based on the guardrails we put in, that is the proper way to address this. justice alito: thank you. chief justice roberts: justice sotomayor. justice sotomayor: i think justice alito hit the nail on the head. as i've read the decisions of other circuits, they seem all to have different factors that make up community caretaking. and i'm actually not sure what it means. but i am concerned deeply about the first of circuit's claim
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that there is no requirement that officers must select the least intrusive means of fulfilling care community caretaking response abilities. i think when everyone has forgotten here is that at least in this situation, there was no immediate danger to the person threatening suicide. and no immediate danger to the wife. because the suicide person was removed to a hospital. and so the issue is, can the police notwithstanding that, and notwithstanding the ability to ask the wife whether she would consent to giving up the gun and ammunition, that they find it on their own to go in, and sees the gun. -- seize the gun.
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that appears to take away from any of the limiting principles that justice alito put forth. yes, some, whether you call it reasonable suspicion, some suspicion, whatever adjective you put there, there was no immediate danger. there were readily accessible alternatives that were ignored. and you are putting into the hands of law enforcement the ability to use their judgment as opposed to that of the psychiatrists who were, treating this man. they certainly could have asked the psychiatrists whether they should remove the guns are not. they didn't do anything. tell me, what is the limiting principles? how serious does a threat have to be, how much judgment do the police officers have to be, how do we limit them from
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substituting their own? could they have gone into the house and taken not just the gun, but any bat, knife, anything else but in their judgment, this man could have used to commit suicide? mr. desisto: i think that is where the object -- reasonableness analysis comes into play. first of all -- justice sotomayor: no, it doesn't. because the question is, the objective reasonableness has to do with going into the place. and seizing. mr. desisto: yes. justice sotomayor: so what was objectively reasonable under the circumstances and what is the limiting principle? mr. desisto: one of the things to keep in mind is that they were faced with a situation where he was taken to the hospital for evaluation. they did not know when he would be back. justice sotomayor: why couldn't they find out?
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why couldn't they ask the wife? mr. desisto: they could have. justice sotomayor: why couldn't they have taken the ammunition and not the gun? mr. desisto: they could have done all of those things. chief justice roberts: justice kagan. justice kagan: i would think if the police have some good reason to think that a person is going to use a gun or other weapon to take his own life or to take the life of a spouse or other family member, that would count as reason enough for the police to proceed. in other words, it is an exigent circumstance, or you can say it falls within the exception we have set up for emergency aid. so why didn't you make that argument? mr. desisto: we looked at brigham and it was the timing of the potential harm would happen in a minute, could happen in a day, and thought that that distinction made exigent
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circumstances inapplicable. if this court -- justice kagan: could you explain that to me a little bit? you thought it was not an immediate threat? why do you think that? mr. desisto: we thought the timing of the potential harm could not be determined. it is undeterminable. so exigent circumstances, when looking at this court's cases for emergency aid, and there are only two of them, michigan and brigham, where the actions happened immediately right in front of the officers, we thought that may not be the best fit for the community caretaking doctrine, where the advent of the harm does not have to be immediate. in fact, it is unknown. justice kagan: i guess i understand why that would seem a
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community caretaking. that sounds like a phrase that covers a lot of stuff. as justice thomas says, we have only used that phrase with respect to automobile inventories searches. you said while the fourth amendment has only one test, i kind of think if there is anyone principle of the fourth amendment law that this court has created, it is the home is special and the automobile is distinctly not. mr. desisto: yeah, i agree. but i think that goes into the weighing of the balance. the text is saying whether it is an automobile, the privacy left -- privacy right is limited and the home is at the forefront. that makes a difference if an entry into the home is challenged. i think courts take that into consideration. chief justice roberts: justice gorsuch. justice gorsuch: common law at least, when we look at common
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law when we are interpreting the fourth amendment and its reasonable requirement, what did it mean then, people can trespass on property in aid of a public or private necessity. what we today called exigent circumstances. i'm unable to locate any common-law authority privileging a trespass absent exigent circumstances. have you been able to locate anything in the common law that comes close to what you are asking for here? mr. desisto: no, i haven't found anything in the history of the making of the fourth amendment. i think the statement as you have indicated is our best example. and that is you are not a trespasser if you are going in for purposes of helping someone or helping property. justice gorsuch: if the original meaning and history doesn't
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help, let me ask you why -- i'm following up on justin kagan quickly. i would have thought cases of threatened violence against one's self or others, or the prospect that someone is lying, having fallen in a home, would count as exigent circumstances in the vast majority of cases. and it is only when there is a long time delay that that is going to become a problem. so why doesn't the exigent circumstances bucket take care of the practical concerns that have been voiced here today? mr. desisto: i think if this court determines and clarifies that apart from michigan and fisher and brigham, and exigent circumstances account for situations where the officer does not know when harm is going to occur, and does not know if it is in immediate need, but something must be done.
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they can't walk away. then exigent circumstances does apply. chief justice roberts: justice kavanaugh. justice kavanaugh: thank you. good morning, mr. desisto. picking up right there on justice gorsuch's question, it does make this seem as the amicus brief from the states, written by the utah solicitor general, says that this case that is before the court, as the brief says "partly because of confusion and nomenclature." and then that amicus brief also says, although mislabeled a community caretaking warrant, the first circuit applied brigham city's emergency aid standard. i'm wondering if we are just here because of confusion about labeling as that brief says. can you respond to that? mr. desisto: i can. i think if this court looks at brigham and looks at michigan versus fisher, and then
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determines that in situations apart from those where the officer, as i said, cannot tell when the harm is going to happen, and think that the need is imminent, if that term exigent, that is fine. i do think one has to look at a response under caretaking and exigent circumstances. one, it is reactive. and one is proactive. caretaking. look at the facts of this case. they sent him to be evaluated. they obtained the gun. frankly, the hospital record indicates that he was discharged because they were confident the guns had been taken. those are proactive things that fall within the community caretaking doctrine, that may not be applicable to exigent. justice kavanaugh: thank you. chief justice roberts: justice
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barrett. justice barrett: you told justice gorsuch that your best example at common law is that for the trespass come if you entered property because of necessity, there was no liability. is it really the case to say, i'm a neighbor and i go into mr. canigila's home because i understand the wife is concerned about the presence of a gun still in the house? and i take the guns and take them back to my house, that i'm not liable for trespass or conversion? mr. desisto: i did not say conversion. that might be different. don't forget, we are talking about an action. i go by the words of the restatement. under the restatement -- justice barrett: you're not asking just for the entry. you have to justify the seizure. you don't have an example of that for common law. mr. desisto: that's correct. justice barrett: what if the police went into mr. canigila's home and found a meth lab. i assume they can take that and he can be prosecuted? mr. desisto: a camp that's
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plainview. yes. justice barrett: let's talk about how far the exception might go. there is concern about it being an umbrella for a lot of different things. let's say in a town with a high rate of covid infection, police look through the window and they can see a lot of people gathered together that are not wearing masks. can they enter? mr. desisto: yes. but see, i think -- there may be a criminal or a violation for so many people entering that -- justice barrett: i was not part of my hypothetical. no criminal. it is just there is no crime, say there is a mask ordinance that carries no penalty, people are told to wear a mask but there is no penalty. there is a concern about spread. mr. desisto: yes. i look at the community caretaking text as a hazard. as a non-investigatory --
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noninvestigatory reason. they have our ticket both facts. they have seen it. and it depends on what they do. if they go in and disperse the crowd, i think that fits within the community caretaking. justice barrett: thank you. chief justice roberts: a minute to wrap up. mr. desisto: thank you, mr. chief justice. the text in the meaning and the spirit of the fourth amendment is not offended by caretaking activity to the most vulnerable, at the most vulnerable times. the law -- as long as the intrusions are reasonable against privacy interests. the question presented is something that should be answered in the affirmative. an absolute prohibition is not consistent with the fourth amendment. our nation does not abandon those in need. police officers cannot turn their backs and walk away. the circuit decision should be affirmed and the question
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presented should be answered in the affirmative. thank you. chief justice roberts: thank you, counsel. >> mr. chief justice, and may it please the court, this case is different from most of the court's fourth amendment cases per the question is not ask now or get a warrant first. it is act now or not at all. that is because there is no warrant process in a lot of these non-investigatory situations. from welfare checks on elderly residents to current suicide threats. although there have been questions this morning about whether this is emergency aid for exigent circumstances or community caretaking or something else, the label you give it is not nearly as important as the principal. the key principle is if someone is at risk of serious harm and it is reasonable for officials to intervene now, that is -- the officials don't need to show up, or that there is no time to get a warrant, because again, for many of the situations, there is
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no warrant process that could be invoked at all. chief justice roberts: how do you feel about the cat? do you let the policeman bring it down or die in the tree? ms. ratner: your honor, the courts have generally applied three buckets of these types of community caretaking interests. one is various harms to people. two, is various arms to property. three is nuisances. we are here defending the series harms two people which we think is the paramount government interest. chief justice roberts: so no concern about property or animals? ms. ratner: i think it would have to be unusually compelling circumstances for those other types of interests to be sufficiently important to match the important privacy entrance. chief justice roberts: it is water dripping from above -- and someone's home and they have to
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-- and they happen to own a van gogh and the water will ruin the painting. is that compelling? ms. ratner: i hope they can move the painting in those circumstances. chief justice roberts: they are elderly, they are off some boat -- off somewhere and no one can reach them. ms. ratner: there may be circumstances where the court would want to consider those questions, and may want to leave that question open. we think the most important cases for the court to cover here are the protection of risk to human health. there are cases where there is water dripping from above over an electrical box and firefighters are concerned about starting a fire in the home. chief justice roberts: so why aren't you arguing for an exception that is not community caretaking, it is objectively reasonable grounds to believe life is in danger? ms. ratner: that is more or less the test weep -- text we put forward. we think the community caretaking label is misleading. katie was so bound up in the
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particular circumstances of vehicle. and the better rule here is that there be specific facts that objectively establish a noninvestigatory justification, in particular, the need for assistance, and that the scope of the officials actions be reasonably tailored to that interest. chief justice roberts: thank you. justice thomas. justice thomas: thank you, mr. chief justice. as well-meaning as these checks may be, there is always going to be someone who does not want the government's help or does not want the intrusion. normally, when we look at these things under the fourth amendment, we do look for some common law historical analogue. and here it is things that there
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is none. can you give us something to look to for the appropriate text? you have given us a number of suggestions, but normally we look for some analog. what would be your best example? ms. ratner: sure, justice thomas. i think the best analog here is to the duties of a constable. the constable really wears two hats at common law. one was it peacekeeping role and one was a law enforcement role. when he acted in the peacekeeping role, if he looked -- you saw that he could enter a home without a warrant, to break up a fight, to stop late-night noise, deal with a disorderly drinking. and that was different. so i do think that is the best analog that you have here. and i know that the petitioner has not identified a single case in which a noninvestigatory entry was required -- entry
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warrant was required. justice thomas: it seems as though that what you just gave me as analogs would shift under some of our current exceptions. accident -- exigent circumstances, emergencies, things of that sort. i don't know why we would need another category to go -- to cover those examples. ms. ratner: if you think exigent german -- exigent circumstances are broad enough to cover circumstances in which it is reasonable to -- to act now, even though we don't know that someone will be injured in mere moments, then we are perfectly fine with that text. we think that would cover circumstances like welfare checks in the current suicide threats. the problem is when you have lower courts, and a petitioner here saying those are cabined to circumstances in which the emergency is going to come to a head in moments. and that is too restrictive. justice thomas: thank you.
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chief justice roberts: justice breyer. justice breyer: i would like to know what you would think if you accept, at least hypothetically, if you just say, community caretaking, we can't foresee how broad that might be. and if you use the present words that are attached to emergency or exigent circumstances, they might in this situation be too narrow. what would you think, what would the government think, of simply taking this case as a common law case, it does involve threats of suicide, they are serious, and saying the rhode island legislature -- this is a rhode island case, has enacted subsequently a statute that we believe has a constitutional standard. none allows the officers to take this individual, if the
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officer has reason to believe that there is a risk of imminent likelihood of serious harm by reason of mental disability. ms. ratner: justice breyer, we would be fine with that result, if the court clarifies what he means by imminent. justice breyer: we can't. that's the very thing we can't do. i mean, i don't know how to do it. because obviously, a month is ridiculous. a second is too short. so you tell me. what is it we should say? how do you define the word imminent? i know less about this than psychologists. psychiatrists. who say with any utterance of the words threatening suicide should be taken very seriously. i'm not an expert. but i would think laws should take it seriously. what do you want to say? ms. ratner: i think if you say by imminent, we suggest a
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current ongoing crisis for which it is needed to act now and you bounded that description by reasonableness, rather than by mayor moments rule, or by the comparison to a warrant process that does not even exist, then i think that would suffice and give room to encompass these different circumstances. chief justice roberts: justice alito. justice alito: how far can we go in giving a little bit of more substance to what has been labeled community caretaking? what you have said so far gives it some substance. i believe you said it at least encompasses situations where the objective is to prevent life-threatening or serious physical injury. that would be a first step. ms. ratner: i think that is correct. i would put emphasis on serious physical harm because the court
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said in brigham city that it would not require someone to be unconscious. justice alito: ok. serious physical harm. and then how much information does an officer have to have an does it matter whether it is a police officer or mental health professional, or someone else? ms. ratner: the information we think is sufficient to objectively establish a noninvestigatory justification and to make it reasonable to act now, and that would apply both to law-enforcement officials and two others, which i do think is an important part of this case. the petitioner is asking for a warrant process to apply to things that firefighters do and social workers do and mental health professionals do. justice alito: in the risk of suicide, do you think it is in the case of the risk of suicide, do you think it is sufficient someone says my friend said she was so distraught, she was going to jump of the window.
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they question the person and they say, it was just a joke. >> that would likely not be sufficient. you would need facts to establish risk. here, you don't have a statement that might be hyperbole. you have a statement coupled with a live firearm, an individual so scared where she packed a bag, hit a magazine for a gun, and called police the next morning. then you have confirmation that she did see it but they were sick of the fight. and so i do think courts are perfectly capable of drawing the line between those two scenarios. >> thank you. chief justice roberts: justice sotomayor? justice sotomayor: one reason i think the amendment is there is to secure persons in their home.
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that is the language of the fourth amendment. it seems to me that i don't have a problem with them having removed the gentleman and taking him to the hospital, because they have reason to believe that he was threatening suicide. and even though 12 hours had passed, the wife was still concerned and he admitted to the threat calling it a joke. i don't think police officers have to take his description at face value. so seizing him and taking him to the home would seem very much an exigent circumstance. this is the next step, attempt
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to go into the home without securing consent from the wife, seizing the gun, and then keeping it indefinitely until a lawsuit is filed. the wife tried to get it back, he tried to get it back. weeks and weeks went by. when we permit search and seize without some standard, we run the risk of situations like this one repeating themselves. so can you concentrate on the exigency with respect to the second seizure at issue? my colleagues seem concerned with the first one, preventing the suicide, which has to do with seizing the individual or even going in to care for the individual. i am talking about a second seizure.
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one that was not a seizure in plainview. --plain view. >> first, the keeping indefinitely of the gun was found to be a due process violation, so you should take that out of the case. the question was, these officers that should these officers have followed the practitioner, or did they think taking those guns to where they knew the location of the guns was a better or equal choice? i think that's an important part of the case but at the end of the day, it was a reasonable choice for them to think let's temporarily take a hold of these. chief justice roberts: justice kagan? justice kagan: ms. ratner, can i ask you about a few community care cases in the lower courts and what you think of them?
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ignore at first there is a lot noise coming from one house. a neighbor knocks, does not rise to level of a crime. can the officer go in? >> we are not defending cases like that. chief justice roberts: i am just asking, what do you think? >> i think they should leave the question open but now. if we had to decide right now, i would say probably not. we think that the risk of harm to a person is really the court that could match. -- the core that could match. justice kagan: in this case, the officer finds the lights are on the inside and there is a tv on. can the officer go in west
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emerge morgan: probably not -- and the officer go in? morgan: probably not. justice kagan: how about donald? neighbor season open-door, police officer arrives and does not receive a reply because there is in fact there -- is, in fact, nobody there. morgan: that is probably sufficient. most cases involve facts like there's a driveway becoming covered in leaves and that sort of thing. justice kagan: doesn't give you pause it all that they have acquired dimensions in the lower courts to encompass all of these cases? morgan: no, because you have really highlighted a couple of the more unusual ones and the vast majority if you look
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through are things like suicide threats, welfare checks and unattended children, weapons left accessible to children with no adults in the home and risk of explosion. there are just much more obvious circumstances where there is no warrant and of course we want someone to intervene. chief justice roberts: justice gorsuch? justice gorsuch: let me understand. you agree we should look to the common law to inform an understanding of the reasonable test. morgan: we have always agreed that the courts look to kamala for what it can get. justice gorsuch: and there we will find a test that allows trespass for something that looks like exigent circumstances? and by that, grave injury to a person? morgan: there are two differences there.
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you will see trespass for private individual allows both for serious harm to people and to property at the,, and you will see government officials are allowed to enter homes in the service of their peacekeeping. justice gorsuch: you're asking us to rely on the common-law general rule that trespass is permissible in aid of someone in imminent physical injury. morgan: that is not quite how the rule is framed. it is generally as now reasonably appears necessary to prevent harm. justice gorsuch: i thought you said it had to do with physical harm? morgan: the common law extends serious harm to persons and property. justice gorsuch: i am asking about your argument. it does not extend past persons.
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morgan: the argument today is that individual safety is when it can match individual safety in the home. we don't think the courts should get it that should get into harm a property or abatement of nuisance. justice gorsuch: why doesn't that fit under the community caretaking exception that started with cars and mostly has to do with nuisances? morgan: we have not located that itself, but the reason exigent circumstances have tripped up lower courts as it is often thought of as the time available to get a warrant. what if in this jurisdiction, someone can get a warrant within an hour? what and they need to know that person they are doing a welfare check on can break their hips
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within the hour. chief justice roberts: justice kavanaugh? justice kavanaugh: if i am hearing you correctly you're not concerned about the label as long as we get the substance correct. is that accurate? morgan: that is accurate. i think the key part of the substance is timing. if you limit this to mere moments or the time available to get a warrant, when there is no warrant available, that is what you end up saluting a lot of non-obligatory activity. >> and use the phrase current ongoing crisis by which it is reasonable to ask now. did i hear that correctly? morgan: correct. justice kavanaugh: and that term is distinct from search and
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seizure. but if we are writing an opinion here and goes along the lines of the rule that you are proposing, how would be right the following sentence or paragraph? -- we write the following sentence or paragraph? morgan: because the common-law drew the line between government officials and acting in a non-investigatory capacity, and when they were acting in a noninvestigatory capacity, they were allowed to enter homes without warrants to address the reasonable possibility of disturbance or serious physical harm. that matches onto the common law of trespass, which applies beyond government officials and just to private individuals. because that is still the common-law rule government
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officials be allowed to enter the home in fewer circumstances. chief justice roberts: justice barrett? justice barrett: sorry, i was on mute. can you say a little bit about how the common-law rule that justifies a trespass would justify needing the guns? morgan: that is a circumstance where there is obviously no parallel between what public and private individuals are permitted to do. justice barrett: so you would then be ok if the rule we articulated did not include the ability to seize guns or other things? morgan: i would not. my point is talking about the common-law trespass rule that applies to individuals. from that, you can derive the general point, which is that the entry is justified when there is
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serious harm at risk. on the other side, individuals are led to do things all the time -- public individuals are allowed to do things all the time that private individuals are not allowed. justice barrett: so once you are in you sees the guns, the drugs, that sort of thing. morgan: plain view applies. if someone is acting in a reasonable way, something officials are entitled to do -- justice barrett: even if the reason they have entered the house is to seize the guns? morgan: yes. we would expect what they do in the house to be reasonably tailored to the noninvestigatory justification. if it is reasonable to take a hold of some gun, then yes, as
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long as what they do in the homes tailored to that. i would urge them not to focus too much on the guns of this case. in large part because a lot of the cases that are covered by these prints are going to involved firearms -- involved firearms. chief justice roberts: a minute to wrap up. morgan: thank you. i want to emphasize the distinction between investigatory and noninvestigatory activity is nothing new. the court has drawn the distinction in assessing programmatic searches like and tory drug testing and inventory searches, and in those cases, they start by determining an objective purpose in law enforcement. if there is, a warrant is required, and if not, they
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reasonable this review is applied, including protective sweeps, entries to stop the mystic violence, or to provide first aid. requiring -- domestic violence, or to provide first aid. requiring a warrant here the matter the label government officials can address serious threat to lives or health. chief justice roberts: thank you. we have afforded your friends on the other or time than anticipated, so why don't you take up to 10 additional minutes for additional points you might like to make. during that time, colleagues are free to ask additional questions. i would like to start by asking whether you are concerned that
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this reliance -- your answer in a lot of these situations was that is in exigent circumstance or that is an emergency aid. why shouldn't we be concerned that doing that will dilute the limits on those exceptions, as opposed to having a more carefully defined exception for situations that aren't really that exited or that much of an emergency? >> i think if you have a situation that isn't an emergency, then police should not be going in. the reason the temporal limit is so important is it ensures that claiming exigent circumstances does not just become a pretext for law enforcement. chief justice roberts: my concern is not that it is a pretext for law enforcement but community caretaking.
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>> either way, the risk is that officers go in. they say it is because they are looking out for somebody's interest but not in an emergency situation, and end up at a minimum invading the privacy of a home or worse yet it might lead to a criminal fusion pursuant -- prosecution pursuant to the plain view doctrine. in the situation justice kagan brought up, please hurt the television, saw the door was ajar, they went inside because they thought the person inside might need help. they found the person sleeping on the sofa with a sawed-off shotgun and they were criminally prosecuted and the circuit held that was a permissible use of community caretaking. whether you call it committee caretaking or loose exigent circumstances, not having a
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clearly defined temporal limit on what declines circumstances is critical. justice kagan: think about what the sg said today as opposed to some of the statements in the sg brief. as i understood ms. ratner, she said that while we don't care about the label and call it exited circumstance, thing i care about is that it has to be a current ongoing crisis. we should care about that no court should think it has to be really immediate or in the space of time with which to get a warrant, because a lot of places, there is no place to get a warrant in circumstances like these. so what would be wrong with that? >> one, i think it is critical that the officers think the need
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to act is imminent. that imminent requirement that the injuries happening now were about to happen. . it has to be quite imminent. i think it is important to impose that temporal limit to where the problems i was describing. the other point, the states have come up with numerous warrants that would apply in these types of situations. there is one in rhode island in this very case, where if he refused to speak to a mental health professional, police could have gotten an order from a court that in their judgment, there was an emergency there are sending him to the hospital, so are there are these regimes,
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where the court contemplated it was necessary to protect the fourth amendment and states in years since have come up it. i do think states have created these kinds of procedures and that is a significant part of the answer to the question, having those sorts of alternatives. chief justice roberts: could you just back up a moment? explain what the problems are with diluting the imminence requirement. >> i think the problem the cases illustrate this -- the problem, i think the cases illustrate this, if circumstances are not actually exigent, police will in an infinite array of situations the able to say we had reason to believe person inside needed help. take a case like welsh where the
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police went to somebody's home. the person had committed drunk driving but it was not a hot pursuit and the person was not a risk to the public because he was already at home. they nonetheless went into his home and arrested him. they said that violated the fourth amendment. presumably the police could say we are are very concerned this person was inebriated and at home and needed help. if you allow that kind of situation to constitute exit circumstance, to your point i think it dilutes all of the interest that the fourth amendment has. >> on the question of suicide, how is an officer supposed to determine how immediate a person at risk -- is at risk. assuming they have gotten some
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description from someone else. how do they determine it is supposed to have -- supposed to happen tonight? >> when they go to the home. >> so they see nothing when they go to the home. this person is suicidal and some facts would support that. >> the first step is to consult a mental health professional. >> that takes a few hours and in the meantime the suicide has occurred. >> in many states, it would not take a few hours. but if they found they could not consult a mental health professional because they could not reach one for a few hours and if they had a credible reason to believe -- >> these formulas are great, but officers have to make a split-second scission.
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-- decision. they don't have time to figure this out by consulting mental health professionals. they have been told this person is suicidal. and you want them to hesitate and i really question the. -- question that. >> if they have been told the person's suicide, they cannot get in touch they could go in your i think that would constitute an exigency. >> you would impose the mental health requirement? you think the officer can't just take those facts and make a judgment trying to save a life? >> if they can do that in a matter of moments i think they ought to do that. justice sotomayor: counsel, that
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seems to be going too far. let's be realistic. this is like the chief justices question about lady who does not come out of her home. i do understand the difference between the wellness check and what the common law permitted you to do and the seizing of guns from the home where the person is no longer there. there is a big difference between the two. why can't gurule articulate that difference in a more reasonable way? >> justice sotomayor, on the facts of this case, the difference is that they were able to speak to him, he answered the door, he did not want to be helped, and they had no basis to think there was no immediate harm. >> that is a different issue.
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i want you to deal with the two differently and i want you to articulate a rule that deals with two differently. >> justice sotomayor, i think that as your questions earlier suggested, the seizure of the guns is wholly indefensible because they took a next step of going into the home to seize the guns when there was no arguable risk while he was at the hospital. i think the seizure was also a fourth amendment violation, but one could distinguish them along those lines. chief justice roberts: what you take a minute to rep up? >> -- wrap up. >> the point i wanted to add in rebuttal was on the common law. on the common law the only situations where officers could go in is in a hot pursuit situation where they are stopping ongoing violence.
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the restatement provision says the officers cannot trespass if they do not want help. the reason there is not a common-law example requiring a warrant is because these kind of committee caretaking functions are not ones that officers perform at all in common law. the bottom line is we are not saying police officer's can never enter, we are saying they need consent, a warrant, or an emergency. but the exigent circumstances situation ought to be defined they temporal limit in order to ensure protections by the fourth amendment. because the community caretaking exception does not extend to the ho >> american history tv on c-span3.
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exploring the people and events that tell the american story every weekend. coming up this weekend, tonight at 10:00 eastern "reel america," with the recent announcement of the academy award nominees, we feature films were nominated for our won academy awards. library of congress, with these hands from 1950, and why man creates from 1958. sunday at 2:00 p.m. eastern, cleveland sellers recounts the 19 -- orange massacre, where south carolina state troopers fired on students protesting segregation. at 6:00 p.m. eastern on "american artifacts," we visit the national museum of the u.s. army in virginia. at 6:45 p.m. eastern, smithsonian secretary lonnie bunch and acumen three filmmaker ken burns discussed the challenge of telling america's story. exploring the american story.
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c-span3. >> c-span's washington journal. every day we take your calls live on the air on the news of the day and discuss policy issues. coming up sunday morning, brett jacobson discusses the effort to regulate state tech. and former u.s. ambassador to afghanistan will talk about the future of that country and middle eastern policy. watch sunday morning and be sure to join the discussion with your phone calls, facebook comments and tweets. >> former president clinton spoke with kamala harris about the disproportionate impact the coronavirus pandemic has had on women and how the -- will regulate disparities.

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