The Supreme Court Has Another Chance to Restore the Fourth Amendment

Case v. Montana

In June, the U.S. Supreme Court granted the petition to hear Case v. Montana after PPSA filed the only brief supporting the Court’s review of a decision of the Montana Supreme Court.

PPSA has now filed its brief on the merits of the dispute. We made it clear that Case v. Montana is a precious opportunity to restore the Framers’ original vision of sharp limits on exceptions to the Fourth Amendment. The Framers jealously guarded privacy. Exceptions to the warrant requirement – exigent circumstances like chasing a bank robber into his home – had to be so pressing (and so obvious) that not granting them would be unreasonable. 

We've since veered off course. A new doctrine introduced in the mid-20th century, “emergency aid,” has threatened to grow into a catch-all category, a Trojan Horse by which the Fourth Amendment is thoroughly subverted. The temptation for law enforcement (and the courts) to treat everything as an “emergency” has never been greater than in this always connected, instant gratification digital age. 

We therefore ask the Court to remind our institutions to take two deep breaths before brushing aside the Fourth Amendment. We told the Court:

1. “The exception does not apply unless the entry is reasonably expected to alleviate, rather than worsen” the emergency. It is all too easy to say, as the State of Montana and the lower courts did in Case, that the police were just doing their job because they were “there to help.” Under that banner, all manner of constitutional violations could be forgiven. Yet the act of entering someone's home without a warrant was anathema to the Framers.
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2. For the Founders, a “home” was the most sacred – and hence the most protected – place in a person’s life. If the Fourth Amendment condones a violation of that sacred, private space, then it also would logically condone a violation of less protected spaces, such as our digital devices. As we told the Court, “If the police do not violate the Fourth Amendment when they search a home or a phone while acting under a valid warrant exception, then anything incriminating they see in that capacity may be used against a person in a criminal prosecution.”

Then as now, exigencies that permit warrantless searches of persons, homes, and property must be defined narrowly, specifically, and in ways that preserve the Court’s respect for what it has called the “privacies of life.” 

Lowering the standard for warrantless “home” entry lowers it for everything. Just because our effects are vastly more digital (and diffuse) today, we have no less a right to be secure in our personal effects and our very lives.
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We all know how Troy fell. It is time for the Court to take a good look inside the doctrine of exceptions to the Constitution.

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