WASHINGTON, DC – Following today’s decision at the Supreme Court in Case v. Montana, a case in which the Court considered 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:

Today’s decision is disappointing. The Supreme Court repeatedly proclaims that common-law standards from the time of the Founding can help guide what is “reasonable” under the Fourth Amendment. Yet today’s opinion—which creates a new situation in which police can forcibly enter private homes without warrants—says not a word about those historical standards, adding fuel to the criticism that the Court uses history only when it aligns with the Justices’ policy preferences.

As we showed in our amicus brief, the common law at the time of the Fourth Amendment’s adoption had a clear rule for when law enforcement officers could forcibly enter homes to stop “affrays” and other emergencies. Under that rule, law enforcement officers needed more than probable cause, not less.

Today’s opinion at least makes clear that police must meet a higher standard to justify emergency-aid home entries than the lenient standard governing investiga­tive street stops. As the Court explained, it is not enough for an officer to have “specific and articulable facts” from which to “suspect” that an emergency is occurring. But it remains to be seen whether the Court’s alternative standard—police must have an “objectively reasonable basis for believing” that an emergency is occurring—is rigorous enough to prevent officers from using emergency aid as a pretext for home intrusions spurred by other motives, just as police have exploited previous Supreme Court decisions allowing warrantless searches.