Tuesday, April 23, 2013

Warrantless Searches of Homes and the Fourth Amendment

Guest Blogger

Albert Wong

Last week, in a determined quest to capture the lone remaining suspect in the Boston Marathon bombing, law enforcement officers defined a 20-block perimeter in the middle of densely populated Watertown, Massachusetts and conducted a thorough, door-to-door search of all residences within those 20 blocks. There is no question that the suspect was dangerous. And it is probably true that many, if not most, of the residents in those 20 blocks were willing to consent to a search of their property to ensure that the suspect had not broken in and secreted himself in some nook or cranny. But absent consent, did heavily armed SWAT teams have a legal right to conduct warrantless searches of every house located within said 20 blocks?

A recent article by Diane Burch Beckham, Senior Staff Counsel for the Texas District and County Attorneys Association, makes clear that according to existing case law, the answer is no. “Four circumstances,” she writes, “must be present when officers enter a home, without consent or warrant, to search under [exigent] circumstances: the offender might escape if police do not make an immediate entry; the offender has demonstrated that he poses a danger to the community (for instance, the crime just committed is a crime of violence); the offender has been pursued into the house continuously from the crime scene; and the warrantless arrest would be lawful if accomplished in a public place but that cannot be done because of the suspect’s decision to retreat into a private place.”

Several of these prongs are clearly satisfied in the instant case. There was ample justification for the arrest of the suspect, there was little question that he posed a danger to the community, and there was a credible flight risk. Importantly, however, the suspect was not “pursued into the house continuously from the crime scene.” He was pursued into a large, general region of a city. Even in cases involving a single house, “[t]he information must be fairly specific … merely investigating a potential danger may not justify warrantless entry.” The lack of specificity here is only more pronounced; officers had no specific or articulable reason to believe that the suspect was present in any given house in the 20-block perimeter. In fact, the suspect was ultimately found by accident, and not by police but by a civilian, safely outside the 20-block area.

Nor do the Fourth Amendment’s requirements evaporate due to the serious nature of the crime being investigated. “There is no precedent” for such a proposition, as Justice Antonin Scalia, writing for the Court, reaffirmed just last Term. And accepting such a “novelty” would lead to a cornucopia of “vexing problems”: in investigations involving “extraordinary offenses,” if it’s okay to conduct nonconsensual warrantless searches of every house in a 20-block area, what of searching every house in a 30-block area? Or a 100-block area? What exactly constitutes an “extraordinary offense”?

As Aaron Zelinsky recently reflected on Concurring Opinions, “[i]n moments like this, it often feels that the process we’re engaged in - the study of law - is a waste of time. After all, one of our country’s greatest cities has come under attack. Over 100 people are injured. SWAT teams are deployed up and down the Eastern Seaboard.” But ultimately, “what separates us from [criminals and terrorists]” is a “belief in human rights and the rule of law.” That “we always try to meet our noblest ideals … [is] what makes our country so special - as we [each] do our tiny bit in moving forward the ‘full weight of Justice’.”

Albert Wong is a Student Fellow at the Information Society Project at Yale Law School. You can reach him by e-mail at albert.wong at