‘Everything Has Been Criminalized,’ Says Neil Gorsuch as He Pushes for Stronger Fourth Amendment Protections

Reason – by Damon Root

In 2019, the California Court of Appeal, 1st Appellate District, ruled that a police officer may always enter a suspect’s home without a warrant if the officer is in pursuit of the suspect and has probable cause to believe that the suspect has committed a misdemeanor. This week, the U.S. Supreme Court considered whether that ruling should be overturned.

Justice Neil Gorsuch seemed to have a problem with the lower court’s decision. Under the common law, Gorsuch pointed out during oral arguments in Lange v. California, the police did not “have the power to enter the home in pursuit of any and all misdemeanor crimes.” The framers of the Fourth Amendment built on that common law understanding. So “why would we create a rule that is less protective than what everyone understands to be the case of the Fourth Amendment as original matter?”

Gorsuch also seemed to have a problem with California’s argument that an officer in pursuit of a suspected felon should always be able to follow that suspect into the home without a warrant. It is “settled,” argued California Deputy Solicitor General Samuel Harbourt, “that officers may enter a home without a warrant if they have probable cause to believe a fleeing suspect has committed a felony.”

Gorsuch offered a different view. “We live in a world in which everything has been criminalized. And some professors have even opined that there’s not an American alive who hasn’t committed a felony in some—under some state law,” Gorsuch told the state’s lawyer. “And in a world like that, why doesn’t it make sense to retreat back to the original meaning of the Fourth Amendment, which I’m going to oversimplify, but generally says that you get to go into a home without a warrant if the officer sees a violent action or something that’s likely to lead to imminent violence….Why isn’t that the right approach?”

In other words, since plenty of felonies do not involve violence, why should the police get to categorically evade the Fourth Amendment in such non-violent felony pursuit cases?

Because the common law allowed the police to pursue felons into the home, Harbourt argued in reply.

But “what qualified as a felony at common law,” Gorsuch countered, “were very few crimes and they were all punished by the death penalty usually.” By contrast, Gorsuch stressed, “today pretty much anything or everything can be called a felony.”

In short, under Gorsuch’s view, the Fourth Amendment’s warrant requirement would only be waived in such cases if the police were pursuing someone suspected of committing a genuinely violent or dangerous crime, a category that necessarily excludes a great many suspected misdemeanants and felons. If adopted by the Supreme Court, that approach would limit police power in these sorts of cases.

Reason