In April, the Supreme Judicial Court of Massachusetts expanded the circumstances under which police could enter a home without a search warrant.
The facts of the case are of a nature almost calculated to extinguish sympathy with the defendant. As reported in the Lynn Daily Item, the Duncan family mistreated their dogs and left them outside in January of 2011.
A neighbor called the police, and the police found two dogs dead in the front yard and a third starving to death.
Normally, the Fourth Amendment prevents access to the home or the “curtilage” (surroundings) of a home without a warrant based on probable cause. However, the Fourth Amendment is also honeycombed through with two centuries’ worth of exceptions and special circumstances driven by facts such as these. Here, the court ruled that the already-existing “exigent circumstances” exception to needing a warrant in order to save human life, also applied to animal life. The Massachusetts Society for the Prevention of Cruelty to Animals, among others, were pleased at the outcome.
We are not altogether so pleased at the implications of this ruling. Let me explain why.
Time and again, courts have been presented in Fourth Amendment cases with facts that suggest that a reasonable law enforcement officer should not delay to get a warrant. In Terry v. Ohio, the Supreme Court decided that where a suspect was plainly “casing” a retail store, it was reasonable to use a lower standard of “reasonable suspicion” to detain him, rather than the “probable cause” standard in the Fourth Amendment itself, so long as it seemed clear that the suspect was planning criminal activity.
Did this seem reasonable at the time? Sure. But rulings set precedents, and the Supreme Court’s Terry ruling is now one of the core legal underpinnings for mass surveillance. The entirety of the mass surveillance programs uses the vocabulary of “reasonable suspicion”, or “reasonable articulable suspicion”, instead of “probable cause”, because that concept received Supreme Court blessing in Terry. The justices in the majority did not fully grasp how eagerly authoritarians would seize on and exploit the ruling to enable surveillance on very slight pretexts indeed.
The problem here is similar. The facts in Commonwealth v. Duncan make the ruling seem reasonable and humane. But let’s imagine a little how far this could be taken. Surveillance agencies already have a track record of getting around warrant requirements by using regulatory agencies to effect entry, because regulatory agencies – concerned about immediate hazards such as fire and infectious disease – aren’t as constrained in needing a warrant. Notably, in the infamous case of the shooting of Denis Reynoso (also in Lynn, MA), the police have inconsistently argued that they broke into his apartment without a warrant because they were concerned for the “welfare” of Reynoso’s five-year-old son; that “welfare check” improved the son’s welfare by leaving him spattered with the blood of his shot father.
So, with this case, it’s a dead dog today; tomorrow, an injured dog; next week, a barking dog that “seemed upset”; the week after, an irritable gerbil; any of which can be found after the house search begins and misused by law enforcement to argue that no warrant was needed. Pretty soon, we’re in a world where all you need to access someone’s property without a warrant is a neighbor willing to allege that something seems generally amiss with your household. Set the standard low enough, and it gives law enforcement a blank check for warrantless access to any pet owner’s property.
It seems cruel to make a starving dog a casualty of commitment to constitutional principle. But it also would be absurd to pretend that fidelity to the Constitution will never, in any set of facts, cause any harm. Our perspective is instead that giving law enforcement a blank check to intervene in cases where any sentient being’s welfare may, on a neighbor’s testimony, be at stake, is in fact both unconstitutional and dangerous.
Not only will there be the less tangible harm to householders’ security in their home, but there will also be predictable harm to householders and to police themselves. Even here in Massachusetts, we live in a heavily armed society with heavily armed law enforcement. If police come into your home unannounced, without a knock or a warrant, both the householder and the police officers are more at risk of accidental shooting. It’s easy to conjecture that more lives will be lost by this ruling than saved by it; for every Duncan case that comes to our attention, there are five or more of animals being harmed in the course of a no-warrant raid.
DA Blodgett’s statement indicates that the Duncan case is scheduled to return to Lynn District Court for trial. May the animals in question rest in peace; may the police find a way not resting on a betrayal of the Fourth Amendment to convict the Duncans for their cruelty; and may we all find ways to be more secure, not less, in our homes and our lives.