New Cert Petition on Emergency Entry: What Was the Common Law Rule?
A cert petition was recently filed at the Supreme Court in Case v. Montana on the Fourth Amendment standards for entry into a home to help people in an emergency. The question presented:
Whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.
The petition does not address the original public meaning of the Fourth Amendment, or the common law rules on this issue. But this is one area where there are common law authorities on the question, and they seem pretty home-protective. Given the Supreme Court’s increased interest in originalism, I thought I might blog about what the established rule was for this issue at the time of the adoption of the Fourth Amendment, which presumably would inform what would have been understood as an unreasonable search and seizure.
Let’s start with what was perhaps the best treatise on common law rules of criminal procedure, William Hawkins, Pleas of the Crown (1787 ed). Here’s how Hawkins summarizes the rule:
Here Hawkins states the rule as allowing entry when the “affray” (somewhat a term of art in the 18th century, but basically meaning a really big fight) is made in the constable’s “view or hearing.” It’s not just that the constable has heard about the fight. He needs to see it or hear it. If he sees it or hears it, he can enter the home to “suppress the affray,” that is, break up the fight.
What makes Hawkins particularly helpful as a treatise writer is that he cites sources. On the side note, he cites five sources. Let’s take a look at them.
The first source is “Sum. 134-35.” That refers to Matthew Hale’s short volume, Pleas of the Crown: or, a Methodical summary of the principal matters relating to that subject, from 1678. The pincite is to Hale’s discussion on the law of affrays, and he states the rule about the power of constables as follows:
Hale’s short volume is less clear on the standard of entry. The constable ought to break up a fight in his presence (somewhere outside, o
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