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US Supreme Court: Taking drug-sniffing dog onto porch is a search

Florida v. Jardines, USSC No. 11-564, 3/26/13

United States Supreme Court decision, affirming Jardines v. State, 73 So. 3d 34 (2011)

In this 5-to-4 decision, the Supreme Court holds that using a drug-sniffing dog on a homeowner’s front porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment. Because the search was conducted without probable cause, it rendered invalid the search warrant for the home that was based on information gathered in the search.

Justice Scalia’s majority opinion is grounded on what it calls the “simple baseline” of the Fourth Amendment as articulated last term in United States v. Jones, 565 U.S. ___, 132 S. Ct. 945, 950 n. 3 (2012): “When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a ‘search’ within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’” (Slip op. at 3). Applied here, this baseline principle makes this case “a straightforward one”:

The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner. (Slip op. at 3-4).

Before unpacking the two parts of this conclusion, here are the facts and two notes on the case’s significance.

Detectives had an unverified tip Jardines was growing marijuana in his home. After some surveillance, two detectives, one of whom was handling  a drug-sniffing dog, approached the home. As they approached the front porch the dog began “energetically exploring” the area and, after sniffing the base of the front door, sat down–its “alert” behavior. The police then used this information to get a search warrant. (Slip op. at 1-2).

The first and most obvious take-away from the decision is that if police go onto the curtilage of a home with a drug-sniffing dog they are engaged in a search, so they will either need a warrant or have to justify the conduct based on a exception to the warrant requirement (e.g., consent). The fact this is an intrusion into the curtilage of a home obviously distinguishes the conduct from dog sniffs during traffic stops which, as the concurrence notes, the Court has upheld “over and over” because of the diminished expectations of privacy in cars compared to homes. (Concur. slip op. at 3 n.1). Wisconsin courts have come to the same conclusion regarding dog sniffs during traffic stops. State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748; State v. Miller, 2002 WI App 150, 256 Wis. 2d 80, 647 N.W.2d 348. Note, however, that the Court’s opinion in this case contradicts Miller’s suggestion that because dog sniffs reveal only illegal conduct, they intrude on no legitimate privacy interest “in any setting” (¶9); at the same time, it is just as clear that the Court’s explicit reliance on Jones and the physical intrusion into constitutionally protected area means the sniff itself is not a search.

The second thing to note is the Court’s explicit reliance on Jones, which a number of commentators (including this site) have seen as a significant change in Fourth Amendment case law because of its putative revival of the “trespass” test that predated the “reasonable expectation of privacy” test established by Katz v. United States, 389 U.S. 347 (1967). The Court’s reliance on Jones suggests the consideration of property interests as well as expectations of privacy is here to stay, that Jones was not just a one-off holding good for that situation only (the act of attaching a GPS tracking device to a car). Will this change Fourth Amendment law significantly? One knowledgeable commentator, Orin Kerr, doesn’t think so, for he makes the interesting claim (here) that there wasn’t a “trespass” test before Katz; that Katz didn’t really change the results of the cases; that whatever “trespass” test Jones purports to revive (18th century trespass law? current trespass law?) might be more a change in form than substance; and that both privacy and property interests matter. Whether or not you agree with Kerr on that point, for now it seems safe to say that in formulating Fourth Amendment claims you should consider not only whether your client had a reasonable expectation of privacy, but also whether the police physically intruded on some sort of property interest.

Back to unpacking the Court’s conclusion that the police intruded on a protected area and did so without authority:

First, there is no doubt the police entered the constitutionally protected curtilage of the home, as the porch is “the classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.’” (Slip op. at 5, quoting Oliver v. United States, 466 U.S. 170, 182 (1984)). The “very core” of the Fourth Amendment is the right to retreat into your own home and be free from unreasonable governmental intrusion, Silverman v. United States, 365 U. S. 505, 511 (1961), and “[t]his right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.” (Slip op. at 4).

Second, the police were not authorized to be on the porch. The Court–and custom–recognize “the knocker on the front door” as a homeowner’s limited invitation or license to others to enter onto his or her property, though “[t]his implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” (Slip op. at 6). Likewise, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” (Slip op. at 6, quoting Kentucky v. King, 563 U. S. ___, 131 S. Ct. 1849, 1862 (2011)). But this customary, limited invitation doesn’t include using a trained police dog to explore the area around the home to try to discover incriminating evidence:

An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. (Slip op. at 7).

The dissent (by Alito, joined by Roberts, Kennedy, and Breyer) criticizes the majority’s conclusion that the officer’s presence on the front porch somehow exceeds the same implied license that authorizes an officer to engage in a standard “knock and talk”—which, after all, is also meant to (and may in fact) gather information, whether from talking with the homeowner or from what the officer sees (and, perhaps, smells). (Dissent slip op. at 4-8). For the dissent the only difference between the two situations is the presence of the dog, which by itself doesn’t transform the officer’s authorized approach into a trespass. (Dissent slip op. at 8-9). The majority opinion is far more in line with our sense of the customary limit on the license granted to people to walk up to our front door; that said, its reliance on custom shows that the officers’ physical intrusion on the curtilage is not the dispositive factor it may have initially appeared to be. This supports Orin Kerr’s point that both privacy expectations and property interests matter.

Finally, the Court finds it unnecessary to consider whether the use of the dog to detect the odor of drugs implicates any legitimate expectation of privacy. The “reasonable expectation of privacy” test created in Katz does not subtract from (or supplant) that baseline protection against physical intrusion into a constitutionally protected place, and Fourth Amendment rights do not rise or fall with the Katz formulation. (Slip op at 9, quoting Jones, 131 S. Ct. at 950).

Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred. (Slip op. at 9).

A concurrence by Kagan (joined by Ginsburg and Sotomayor) analogizes the use of the dog in this case to someone standing on the front porch peering into the home with high-powered binoculars, and concludes the search violated both the property and privacy interests protected by the Fourth Amendment, noting that “[i]t is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align.” (Concur. slip op. at 3). For these justices this case is resolved by the line drawn at “the entrance to the house” by Kyllo v. United States, 533 U. S. 27, 40 (2001), which held that police officers conducted a search when they used a thermal-imaging device to detect heat emanating from a private home even though they did not physically intrude on the property:

That “firm” and “bright” rule governs this case: The police officers here conducted a search because they used a “device … not in general public use” (a trained drug detection dog) to “explore details of the home” (the presence of certain substances) that they would not otherwise have discovered without entering the premises. (Concur. slip op. at 4).

The dissent rejects the conclusion of the concurrence that the homeowner had a reasonable expectation of privacy in the odors that might escape the home and be detected by the dog. (Dissent slip op. at 9-11).

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