Volokh Conspiracy: House-to-House Searches and the Fourth Amendment by Orin Kerr:
Current events in Boston raise the question of whether the Fourth Amendment allows the government to conduct house-to-house searches for an armed and dangerous suspect on the loose. Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment? The answer depends on whether such home entries are “reasonable” under the Fourth Amendment, which requires a case-by-case balancing of the government’s interest in making the searches and the scope of the privacy invasion. The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way. Fortunately there aren’t a lot of cases on anything like we’re seeing in Boston, at least as far as I could find. ...
Kerr notes that the suspect wouldn't have standing to contest the entry and arrest because of wrongful presence, and any civil case against the government by a homeowner would be lost on qualified immunity.
I thought the same thing watching it on TV yesterday. Add this: What would the founders have thought about a house to house search for a wanted terrorist? I don't think it would bother them at all on "reasonableness" because it's something that might happen once in a lifetime. Balancing need against scope of intrusion (akin to a protective sweep and then quickly gone to the next house), it would be reasonable. If they happened on a little dope in their house to house sweep would the police even care? No; they certainly don't have time to seize it and write a report. The homeowner gets a pass.
Kerr doesn't mention this memorable phrase from Justice Jackson in 1949 from Brinegar v. United States, 338 U.S. 160, 182-83, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949) (Jackson, J., dissenting), which pretty much sums it up:
With this prologue I come to the case of Brinegar. His automobile was one of his "effects" and hence within the express protection of the Fourth Amendment. Undoubtedly the automobile presents peculiar problems for enforcement agencies, is frequently a facility for the perpetration of crime and an aid in the escape of criminals. But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.
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