While much of the attention this week is on the two same-sex marriage cases, an important ruling was handed down on Tuesday that constituted an increasingly rare victory for the Fourth Amendment under search and seizure law. In Florida v. Jardines, the Court ruled 5-4 that police need a warrant to use a drug-sniffing dog on the exterior of a home. It was a surprise ruling for some of us — a surprise magnified by the author, Associate Justice Antonin Scalia.
The case presented a potential disaster for privacy law. Miami police received a tip that a house of Joelis Jardines was the location for a marijuana grow operation. The police only took 15 minutes before calling in a K-9 unit. There was no criminal activity noted, but they later said that they were suspicious that an air conditioner was kept running for the 15 minutes . . . in Miami.
When Franky the dog arrived he alerted his handler on the presence of pot and that was the basis for the warrant used to raid the house.
Jardines was arrested and charged with illegally growing marijuana.
The Florida Supreme Court found the search violated the Constitution. Scalia and four justices agreed. He was joined by Associate Justice Clarence Thomas — not someone viewed as a defender of privacy principles. They relied on the principle of curtilage, an area outside of the house viewed as protected. They were joined by Justice Elena Kagan (with a concurrence) and Justices Ruth Bader Ginsburg and Sonia Sotomayor.
In a statement that distinguished the other recent dog sniff case (Florida v. Harris) where the court allowed the use of a police dog with regard to a stopped truck, Scalia emphasized “[w]hen it comes to the Fourth Amendment, the home is first among equals,” he wrote. The right to be free of unreasonable governmental intrusion inside the home “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.” Scalia’s reliance on the 2013 United States v. Jones decision (barring the use of a GPS tracking device on a car) reinforced his property approach to such questions (a problematic rationale as I previously discussed). Indeed, it was that property emphasis that prompted the concurrence from Kagan. Scalia returns to the notion of trespass as defining the fourth amendment protections — a position once rejected with the infamous trespass doctrine before Katz.
One silver lining is that Scalia reinforces the view of Jones that his trespass rationale was in addition to the Katz test as a basis for finding a violation:
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.
The dissent by Justice Samuel Alito is joined by the usual swing voter on the Court, Justice Anthony Kennedy as well as Chief Justice John G. Roberts Jr. and Justice Stephen G. Breyer. The opinion fails to fully address the implications of rejecting any expectation of privacy in odors. A dog’s nose is many time more sensitive than a human’s nose. If you can use a dog, you could use a machine designed to pick up such trace odors. It would allow another race between technology and privacy.
In my Constitution and the Supreme Court class, we explored this case and, according to our common practice, voted both on the merits and our prediction for the actual court. Eleven members voted to affirm the Florida Supreme Court and only two voted to reverse. On the prediction side, nine believed that the Court would affirm while four believed the case would be reversed. It proved close with a surprising array of justices on either side. However, the result was a badly needed victory for the Fourth Amendment.