by Frances Prizzia on Feb. 12, 2020

Criminal Other  Power of Attorney 


The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures and requires a warrant based on probable cause to justify a search or seizure. Over time, courts have created exceptions to the warrant requirement. Scholars and criminal defense attorneys call this the “chipping away” of the Fourth Amendment because, for the overwhelming most part, if courts are creating exceptions, they are subtracting from the protections the Constitution provides, not enhancing them.

Despite the broad erosion of Fourth Amendment protections over the years, courts have been uniquely protective of the home. The concept that a person’s home is his or her castle dates back to English common law and the idea that a person’s home is a particularly sacred and private place has informed Fourth Amendment jurisprudence throughout history.

Generally, there are only two exceptions to the requirement that the government has a warrant before it enters your house. The first is rather obvious: consent. If you invite someone into your home, even the government, you have granted them permission to be there. The second is known as an exigency. Here courts have acknowledged that circumstances can arise when it will not be practicable or possible for the government to obtain a warrant but the circumstances justify an exception allowing entry. The most obvious example of this is “hot pursuit.” If a police officer is in pursuit of a fleeing criminal and that person enters a home, it would make no sense if the officer had to simply stop and go apply for a warrant.

However, over the years, the government has tried to justify all kinds of entries as emergencies. Unfortunately, courts have been far too compliant. One such exception, created by the California Supreme Court in 1999 is the community caretaking exception. In People v. Ray, the Cal Supremes, essentially held that circumstances short of an emergency could justify entry into a home. In so doing they expanded the exception that allows police or other emergency personnel to enter a home when someone inside is in need of emergency medical aid or to prevent imminent injury to situations short of an emergency where police justified their entry based on their general community caretaking responsibilities.

For the last 20 years, California has continued to recognize this “community caretaking” exception to the warrant requirement. No longer. Last month, the California Supreme court overruled its own previous opinion in Ray and held that the exception it created “was not supported by our prior jurisprudence.” Either there is an emergency that justifies a warrantless entry or there is not, in which case the government must seek a warrant before entering.

This is that rare time, worth celebrating, when a court has actually reversed the tide of the continual chipping away of 4th Amendment protections.

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