"But to me, a question lingers: Why?"

Writes Justice Gorsuch, concurring, alone, in William Trevor Case v. Montana, issued this morning, which held that "police officers generally do not violate a person’s Fourth Amendment rights when they enter his house without a warrant, but with an 'objectively reasonable basis' for believing someone inside is in physical danger and in need of immediate aid."

Does the Fourth Amendment tolerate this limited emergency aid exception to the warrant requirement just because five or more Justices of this Court happen to believe that such entries are “reasonable”? Or is this exception more directly “tied to the law”? Carpenter v. United States, 585 U. S. 296, 397 (2018) (GORSUCH, J., dissenting). The answer, I believe, is the latter. 

From before the founding through the present day, the common law has generally permitted a private citizen to enter another’s house and property in order to avert serious physical harm. In those circumstances, and many others, courts have historically held that property rights give way to concern for human safety. See, e.g., 37 Hen. 6, pl. 26; Mouse’s Case, 12 Co. Rep. 63, 77 Eng. Rep. 1341 (K. B. 1608); Respublica v. Sparhawk, 1 Dall. 357, 363 (Pa. 1788); Ploof v. Putnam, 81 Vt. 471, 474–475, 71 A. 188, 189 (1908). Courts have long described property-law necessity defenses like these as turning, too, on the adequacy of the defendant’s judgment, not a post-hoc assessment of necessity in fact. See, e.g., Mitchell v. Harmony, 13 How. 115, 134–135 (1852); Stone v. Mayor of City of New York, 25 Wend. 157, 176 (N. Y. 1840) (opinion of Verplanck, Sen.); Surocco v. Geary, 3 Cal. 69, 72 (1853).

I was going to elide the citations, but that would be to eliminate clutter and I think they give a solid historical look to the text. I especially like Mouse's Case, where, I see, looking it up, that "a great tempest happened" and "a hogshead of wine and other ponderous things were cast out for the safeguard of the lives of the men." Ironically, that was a case about eliminating clutter... from a sinking barge.

This is the first appearance of the word "hogshead" on this blog unless you count the time it was someone's name. That was a post about transgender women in women's sports, the topic about which the Supreme Court heard oral argument yesterday. 

Back to Gorsuch:

The common-law emergency rule is now often summarized this way: “One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to . . . the actor[,] . . . the other[,] or a third person . . . unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.” Restatement (Second) of Torts §197(1) (1963–1964). But, of course, this privilege comes with its logical limitations. So, for example, a private citizen who enters a home to render emergency aid lacks license to do so in a manner “which a reasonable man would not regard as necessary to” address the apparent emergency. Id., §214, and Comment a; see also id., §197, Comment a; Des Moines v. Webster, 861 N. W. 2d 878, 883–885 (Iowa App. 2014); State v. Lukus, 149 Mont. 45, 50–51, 423 P. 2d 49, 52–53 (1967).

Sometimes when I'm dreaming, I scream in real life. I don't want the neighbors barging in to help me out of my nightmare, which is usually about someone barging into my private space.  But what does a reasonable man regard as necessary when he hears a woman scream?

Back to Gorsuch:

Today’s decision echoes both the common-law emergency aid rule and its limitations. It does so, to be sure, in the context of a law enforcement officer, not a private citizen, who sought to enter another’s home. But on this point as well the common law has spoken, long providing that officers generally enjoy the same legal privileges as private citizens. See, e.g., Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (C. P. 1765); 1 J. Chitty, Criminal Law 36 (1819); 2 M. Hale, Historia Placitorum Coronae 91 (1736). And, reflecting the common law here again, this Court has held that the Fourth Amendment usually permits officers lacking a valid warrant to “take actions that any private citizen might do without fear of liability.” Caniglia v. Strom, 593 U. S. 194, 198 (2021) (internal quotation marks omitted). But they normally may do “no more” than that. Kentucky v. King, 563 U. S. 452, 469 (2011); see also Entick, 19 How. St. Tr., at 1066. 

It should come as no surprise that our decision today might accord with the accumulated learning of the common law—just as it should come as no surprise that our application of the Fourth Amendment ought to be informed by the common law’s lessons rather than mere intuition. For a period, to be sure, the miasma created by this Court’s Katz era led some to think the scope of the rights guaranteed by the Fourth Amendment depend on nothing more than current judicial instincts about “reasonable expectations of privacy.” See Carpenter, 585 U. S., at 394–395, 405–406 (GORSUCH, J., dissenting). But that confusion cannot last forever, for no one should think the rights of Americans hang on so thin a thread.

Reasonable expectations of privacy are a thin thread — a thin thread and a confusing miasma... as Gorsuch sees it.

Instead, and as Justice Story recognized, the Fourth Amendment is made of sturdier stuff, representing “the affirmance of a great constitutional doctrine of the common law.” 3 Commentaries on the Constitution of the United States 748 (1833).

So what is it "that any private citizen might do"? The police can do that too. And ("normally") nothing more.

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I like the use of the word "miasma." It reminds me of Clarence Thomas's description of his experience going to law school:

Cases and terms of which I knew nothing swirled about me in an incomprehensible miasma. No less puzzling was the way in which some of my new classmates jumped self-confidently into the fray, talking back to he professors as if the tangled complexity of legal doctrine were second nature to them. Where had they learned so much? Would I ever catch up?... Panic and dread threatened to overwhelm me.