For over a hundred years, the Supreme Court has employed rhetoric in its Fourth Amendment cases that supports the concept of “home exceptionalism”—that is, the idea that protecting the home is the “very core” of the Fourth Amendment. Two cases from this year’s Supreme Court term, Lange v. California and Caniglia v. Strom, appear at first to support this doctrine, since a narrow reading of their holdings appears to enhance Fourth Amendment protection of the home.
However, a closer examination of Supreme Court doctrine reveals that home exceptionalism is a myth. Although the home does receive small amounts of special protection in some areas, such as the arrest warrant requirement and the protection of curtilage, these special protections are far weaker than the Court’s rhetoric implies. In fact, the recent trend is for the Court to limit the Fourth Amendment protection given to the home. Lange and Caniglia are consistent with this trend, as the Court’s holding in fact did little to increase the protections for the home and re-affirmed many of the doctrines that permit police to enter a home without a warrant.
This essay is one of the first to analyze Lange and Caniglia, the Court’s two most recent Fourth Amendment cases. It does so by placing the cases in the proper historical and doctrinal context, first tracing the roots of home exceptionalism back to the 1800s and separating the broad language that the
Court has often employed in these cases from the narrow legal rules that the cases actually establish. The essay demonstrates that Lange and Caniglia follow a well-established pattern, beginning with bold precatory language about the sanctity of the home, then delivering a narrow holding, and finally
qualifying the reach of that holding with further language limiting its practical effect.