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More on Dog Sniffs

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This may be the Year of the Snake in China, but it's the Term of the Dog in the US Supreme Court.  Last month, the high court decided unanimously in Florida v. Harris that a trained dog's alert is probable cause for possession of drugs without the strict requirements laid down by the Florida Supreme Court.  See prior post here.

Today, the other shoe dropped in another Florida case, Florida v. Jardines.  From the syllabus:

Police took a drug-sniffing dog to Jardines' front porch, where the dog gave a positive alert for narcotics.  Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court's decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

Held: The investigation of Jardines' home was a "search" within the meaning of the Fourth Amendment.

The opinion was written by Justice Scalia and joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.  Justice Alito dissented, joined by Chief Justice Roberts, and Justices Kennedy and Breyer.  This division does not follow the simplistic "liberal/conservative" lineup, but it is not particularly surprising in a Fourth Amendment case where the question is the substantive reach of the constitutional protection as distinguished from the scope of the exclusionary remedy.  This is the kind of case where we sometimes see Scalia and Thomas showing their libertarian streak and Breyer siding with the government.

In the opinions we see some interesting discussion about the Fourth Amendment and property versus privacy and the special status of the home.
Justice Scalia, in accordance with his general approach to constitutional issues, cares more about the text of the Constitution than the judicial gloss added later, especially Warren Court gloss.  The word "privacy" does not appear in the text.  The Fourth Amendment protects "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures...."  Justice Scalia is more concerned with whether there has been an intrusion into one of these listed items than whether the searchee had a "reasonable expectation of privacy," the Warren Court formulation in Katz v. United States, 389 U.S. 347 (1967).  That is not to say that Katz is overruled, but he sees it as an add-on, not a substitute, for trespass analysis, following up on the Jones opinion last term.  (Orin Kerr thinks it is significant that the Jardines opinion uses the term "physical intrusion" rather than "trespass" in the discussion of Jones.)

All kinds of people walk up to your front door, and this is generally not considered a trespass on an implied consent theory.  So the UPS guy, the Girl Scout selling cookies, the proselytizer, and even the police detective who knocks on the door to speak to you are not trespassing.  The five Justices in the majority think bringing a drug-sniffing dog onto the premises exceeds the scope of the implied consent, but the four Justices in the dissent do not.

The property theory makes it easy to distinguish this case from dogs sniffing luggage in an airport or a car stopped on the side of the road.  Though the owners might well have had expectations of privacy in the objects sniffed, the dogs were standing on public property, not private, when they sniffed them.

As it is undisputed that the detectives had all four of their feet and all four of their companion's firmly planted on the constitutionally protected extension of Jardines' home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not.

In a concurring opinion, the three "liberal" Justices in the majority weigh in with a Katz "expectation of privacy" analysis.

So what should the police have done?  Presumably the unverified tip that led them to Jardines' house in the first place was not sufficient for a warrant.  Should they take the dog to the public sidewalk, get enough of an indication to get a warrant to take him on to the property, then after having done so get another warrant to actually enter the house?  Maybe.  Perhaps a conditional warrant that they can take the dog on the premises and then enter the house on condition the dog alerts to the house?  Maybe.

1 Comment

I read a news item today about police in England mailing pot-scented postcards to various neighborhoods (supposedly to help residents of these neighborhoods know what marijuana smells like!)

Without the Florida v. Jardines decision I suspect there would soon be instances of police in the US sending out such mailers and then conducting "random" searches with drug-sniffing dogs.

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