WASHINGTON, DC – Following oral argument at the Supreme Court today in Case v. Montana, a case in which the Court is considering whether police may enter homes without warrants based on less than probable cause that an emergency is occurring, Constitutional Accountability Center Deputy Chief Counsel Brian Frazelle issued the following reaction:

The Fourth Amendment’s most basic purpose is to safeguard the home from intrusion by government officers. But the Montana Supreme Court has suggested that officers may break into homes based on nothing more than suspicion that a person inside needs emergency aid. At oral argument in the U.S. Supreme Court today, the Justices seemed to recognize the error of this ruling, and that warrantless home entries to render aid require at least an “objectively reasonable basis for believing” that emergency aid is needed.

Unfortunately, the Justices seemed reluctant to agree that officers must have probable cause that emergency aid is required before breaking into homes without a warrant. While the Justices expressed concerns about true emergencies going unaddressed, they did not sufficiently recognize the serious threats to human life when police make warrantless home entries without a good reason—as in this case, where the officers ended up shooting the person they ostensibly aimed to protect. Largely absent from today’s argument was discussion of the risk that an overly lenient standard could be exploited by police as a pretext for home intrusions spurred by other motives, just as police have exploited previous Supreme Court decisions curtailing the need for warrants.

In addition, the Court has repeatedly said that common law standards from the time of the Fourth Amendment’s adoption help guide what is “reasonable” under that Amendment. And here, the common law had a clear rule that applied to precisely this scenario. Law enforcement officers needed more than probable cause, not less, before they could break into homes without warrants. If officers claimed necessity as a defense to their unauthorized entry, they had to show that an emergency actually was occurring. The Justices’ apparent resistance to adopting this rule adds fuel to the concern that the Court uses history selectively, only when it aligns with what members of today’s Court view as good policy.