Gorsuch Cites ‘Originalism’ to Limit Police Searches

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During his nearly 30 years on the Supreme Court, Justice Antonin Scalia was perhaps best known for his commitment to originalism, the idea that the Constitution should be interpreted as it would have been understood by the Founders. Scalia’s dedication to originalism extended to the Fourth Amendment, which protects against unreasonable searches and seizures by the government. Judge Neil Gorsuch, whose hearing before the Senate Judiciary Committee to replace Scalia begins today, also describes himself as an originalist. He too has adhered to originalist principles in reaching “pro-defendant” results in several cases, all implicating privacy issues, reports ScotusBlog.

In United States v. Carloss, a federal agent and a local police officer went to Carloss’ house to speak with him. The house had “no trespassing” signs scattered around the property, including one on the front door. Carloss allowed the officers to enter the house, where they saw drug paraphernalia and residue that appeared to be methamphetamines. When the officers later returned with a warrant, they found “multiple methamphetamine labs,” a loaded gun and more drug paraphernalia. When Carloss was prosecuted on drug and weapons charges, he moved to suppress the evidence. Two appellate judges affirmed a ruling denying Carloss’ motion. Gorsuch filed a lengthy dissent. When the officers went to Carloss’ door to investigate, they were indisputably conducting a “search,” he said. The only question was whether Carloss had, as the majority ruled, implicitly agreed to allow the officers to approach his front door and knock on it. Under the government’s rule, Gorsuch suggested, law enforcement officials would effectively have a “permanent easement” to enter a home for a “knock and talk” – “whatever the homeowner may say or do about it.” He said “this line of reasoning seems to me difficult to reconcile with the Constitution of the founders’ design.”

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