Supreme Court Narrowly Rejects Use Of Dog Sniff On Home Without Warrant

AntoninScaliaDog_noseWhile 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.

54 thoughts on “Supreme Court Narrowly Rejects Use Of Dog Sniff On Home Without Warrant

  1. Don’t worry that Thomas is on the right side of this decision. it was only because Scalia was on the same side. I cannot understand why we pay Thomas at all since we could just give Scalia two votes and save on Thomas’ salary.

  2. At first read, I was concerned this was going to be an unrealistic hinderence upon LE that would bar them from even approaching a house to conduct ordinary business or contact of the homeowners. But as I read the court’s opinion it became quite clear this was well construed.

    The poarch of the house is a place that for the most part in our culture, and as was defined in the text of the opinion, unless there is a sign to the contrary the public is invited to knock on the door and query to occupant for contact. But, this invitation is not a license to engage in a search of the residence even if from the outside.

    I think this is certainly workable.

  3. If we are petitioning to have Congress critters wear the logo’s of their corporate sponsors, shouldn’t we be fair and have Scalia and Thomas do the same as well?

    Or at least while we are tackling filibuster reform we can begin to require IQ tests and dementia tests for our elderly justices?

  4. The lawyers missed a good angle on the dog sniff case. Hearsay of the Dog. There is not exception to hearsay of the dog. Therefore, what the dog told the cop is hearsay. Allowing the cop to say that the dog “alerted him” is exactly like saying that JoeBob the big nosed human alerted him by tellling him that he smelled pot in the house.

    Hearsay of the Dog. Use that objection next time for any dog sniffing case whether it is home, hearth, car, boat, backpack on the Tami Ami Trail.

    Here is how you argue it. Take the deposition of the cop. Well, Leo, does Fido tell you when he needs to pee? Does he tell you when he is hungry?

    To make the point, have deaf and dumb interpreter present in court and have the deaf and dumb class from the deaf and dumb school be present for the trial or the oral argument on appeal. When deaf and dumb interpreter is standing there giving out the hand signals from human to human the court will start to connect that a dog is communicating orally to the cop. He is saying something. Therefore, the cop’s articulation as to what Fido said was Hearsay of The Dog. Not an exception to the Hearsay Rules.

    And, Justice Scalia, this is a violation of the Confrontation Clause. Make the dog come to court! Scalia is deeply rooted in the Confrontation Clause.

    That, my dear human and dog friends is the underlying thread of Scalia’s thought process here.

  5. BarkinDog is right on. If you have a dog and you are sitting at home on the couch and your dog wants something from you does he not communicate to you? Is that bark not speech? You dont have to be too lame on your two feet to see that the lawyers in this case missed the boat on the Confrontation Clause and Hearsay objections.

  6. I have been lobbying Professor Carlson to put a section in his book which he does with Myron Bright. The book is called Objections At Trial. Objection: Confrontation Clause. The witness is repeating the statement of the dog Fido. There is no Hearsay of the Dog in civil cases and certainly the Confrontation Clause trumps any repetition by the officer here of what Fido said. Write to Professor Carlson and Judge Bright (8th Circuit Court of Appeals) my fellow bloggers.

  7. Fat Tony on the side of justice? Maybe the Alzheimers will work toward the nations advantage!

    I wonder how long before cases are brought because of false alerts by dogs. Not sure if it was here or someplace else that had the video of the police ‘drug’ dog that had been trained to alert to a hand signal from the human. If the cop didn’t like yo that dog would alert when it was sniffing your car/home &, bingo!, probable cause existed. These “smart” guys may very well undo what can be a valuable tool by being so clever

  8. Frankly,

    Speaking of justice Scaliawag–did you read this?

    Antonin Scalia At Prop 8 Hearing: Justice Makes Strom Thurmond Reference
    The Huffington Post
    By Lisa_Miller
    Posted: 03/26/20
    http://www.huffingtonpost.com/2013/03/26/antonin-scalia-prop-8_n_2957133.html

    Justice Antonin Scalia made an awkward reference to former Sen. Strom Thurmond (R-S.C.) during the Supreme Court hearing on Proposition 8, California’s ban on gay marriage, Tuesday, eliciting laughter from the courtroom.

    The comment came during a conversation about infertility and what Charles Cooper, the lawyer arguing in support of Prop 8, called marriage’s “connection to its historic traditional procreative purposes,” according to the hearing’s transcript.

    Justice Elena Kagan posed the question of whether the government could deny the right to marry to infertile or older couples who are unlikely to produce children. Justice Scalia jumped into the conversation, interrupting Kagan’s questions and referring to Thurmond out of nowhere.

    New York Magazine reports:

    “While listening to pro–Prop 8 attorney Charles Cooper squirm is fun, the real zingers come from Justice Antonin Scalia, who said, “I suppose we could have a questionnaire at the marriage desk asking, ‘Are you fertile?'” and went on to quip about Senator Strom Thurmond, who fathered multiple children between ages 68 and 73.”

    “Strom Thurmond was — was not the chairman of the Senate committee when Justice Kagan was confirmed,” Scalia continued, according to the transcript.

    Thurmond notoriously opposed the Civil Rights Act of 1957, filibustering the bill for over 24 hours on the Senate floor.

  9. To answer Jiustice Kagan, the answer to her question is an obvious NO, just as the SCOTUS Loving decision made it illegal to deny interracial marriage. Back then too, the definition of marriage which the majority opinion declared a right ONLY applied to one man/one woman marriage since gay marriage had not even been thought of. So the other fact is that gay marriage in not a right under Loving. In fact, Kagan question shows that gays are NOT discriminated against since millions of gays HAVE married others of the opposite sex. So to make clear her question, if the law demanded a gayness test to prohibit gays from marriage under the current definition in most states, THEN she would be right, that such a test has no legal reason for being since it would discriminate against gays for no valid state interest and would make gays second class citizens.

    The state has every right to define what constitutes legal marriage, and any restrictions have to meet the rational means test. Such a test does not apply when the very definition of marriage and its legal qualities are the legal perogative of the state. Just as the state can grant subsidies to some companies and not others. Those who do not get such preferences are not denied their rights either.

  10. EM, no I had not seen that but I bet he is a huge fan of Sen. Thurmond. The man almost single-handedly tried to keep America in the 19th century. That is an effort Tony believes in.

  11. I wonder if this will/can have an effect on the use of those scanners that look into a house for radiation to find grow lights and all? How different is that?

  12. So, how does this effect a warrant based on a police officer claiming to smell marijuana while standing on the front porch?

    Surely the Court recognizes that the nose of a K-9 is far more accurate than that of a human. If the search is unreasonable when a dog on the porch is used as the basis for the warrant, wouldn’t it make sense that the same would apply to a law enforcement officer?

    (To be honest, I never liked the idea that a search warrant of a home is issued based on what a law enforcement officer claims to have been able to smell while standing outside the home.)

  13. What about using FLIR to detect grow lights then?

    Whether the instrument used to intrude is biological or technological, I see little difference.

  14. I was surprised by the result… Since they’d already screwed a vehicle search…. But the rational was good….

  15. I too love to hate Thomas, but I have been surprised more than once on his decisions, most notably Raiche v Ashcroft, where he opposed Scalia.

    This case also strongly encourages large curtailages, like 1000′ minimum on all sides of a home.

    Also what lemona said is on point, this decision would seem to maybe limit that kind of probable cause.

  16. Regarding Jude’s comment above regarding mechanical devices which a human can read or decipher that would alert to something in a dwelling. If a cop says that the radar detector read 80 miles per hour then the cop might have to put on some more evidence prior to the testimony that the radar detector had passed inspections. A dog is not a machine. A dog barks and scratches the door when he wants to go out to pee. He is telling you something. You are relating what he told you. It is a dog statement that you relate. Hearsay. Hearsay of the dog is not an exception to the civil rules of hearsay applicable in civil trials. There are no hearsay exceptions in criminal trials and rules invented by judges can be trumped by the Confrontation Clause which requires the witness to be in court before the jury so that the jury can scrutinize the credibility of the witness.

    So, how is the jury going to decide the credibility of Fido and Copo if Fido is not in court to be cross examined before the jury? Huh? It is easy for a cop to say that Fido said there was pot in the house. Did Fido smell it or see it?
    Did someone signal Fido from the house that there was pot in the house?

    This dog alert apCray is demeaning to dogs. Dogs need their place in the sun and their place on the witness stand.

    By the way. Dogs can not smell pot inside a house from the sidewalk unless the window is open and the humanoids are in there smoking pot with a good wind bringing the smell outdoors. This BS (Bull Shavings) about dogs being able to smell pot wrapped up on plastic baggies and hidden under the mattress, in a closed bedroom, far from the smell of a dog is BS. No Supreme Court Justice should buy into this apCray, even on the oohYay.
    I could see why Alito would buy into it. It a cop told him that cows give Milnot he would believe it. Went in dumb, come out dumb too.

  17. It proved close with a surprising array of justices on either side.”

    Indeed.

    Breyer with the righties was a surprise, and as you said, Scalia & Thomas with the girls.

    Whew! for the 4th Amendment.

  18. Lots of good comments but, please, “deaf and dumb” has long been regarded as insulting and demeaning. Deafness has nothing to do with a person’s intelligence. And calling Kagan, Ginsburg, and Sotomayer “girls”? Another insult. C’mon, guys.

  19. It’s quite edifying to read all of the negative comments about Scalia when he makes a decision folks here abide, and no comments about Breyer who came down on the other side. You folks are consumed by hate.

  20. A little knowledge being a dangerous thing, I was not surprised at all that J. Scalia found this to be unconstitutional for the simple reason that I knew he wrote Kyllo.

    Mr. Spinelli,
    It is not the hatred per se that strikes me, but the juvenile way in which it is so often expressed here.

  21. Coming down on the right side of an issue once in awhile does not negate the overall negative impact Scalia has had on jurisprudence as a whole. If you don’t like him being criticized, I suggest you read the 1st Amendment until you understand it. SCOTUS itself suggests that core political speech involves any “interactive communication concerning political change.” Meyer v. Grant, 486 U.S. 414, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). Political speech and any regulation of it is subject to strict scrutiny and impermissible absent a compelling state interest. This is why Citizens United is such an abomination – it ignores the corrupting influence of money on political discourse by pretending that corporations are people by expanding their legal personality far beyond the traditional scope of what was intended by the corporate form. If you want to talk juvenile, consider Scalia’s childish reasoning in his concurrence on CU where he said the 1st Amendment addresses free speech “terms of speech, not speakers” – the implication being that corporations are people when they are manifestly a legal fiction never intended to have full personality at law and employing wishful thinking to conclude that “We the People” somehow equates to “We the Legal Fiction”. Civil rights are for humans. Corporations are creatures of the state and as such may be limited in any way we see fit as a society.

    If you have a problem with this forum, your participation is entirely voluntary.

    Just as you are free to defend Scalia is that is your wont, everyone else is just as free to criticize him whenever and however they see fit.

  22. I have been accused of irrational hatred of teachers unions by some here. Scalia makes a righteous decision and he is still hit w/ venom. That is classic irrational hatred which I merely pointed out. It amazes me how some egotistical people assume they are the Sgt.@ Arms here and constantly cite rules. The simple rule is one can criticize and one can tell the other to go shit in their hat. The first amendment is the first and most important rule. I will never go away so deal w/ it.

    mahtso, Amen.

  23. As long as you stay off the ad homimen attack track here, nick, I don’t give a damn what you do. Neither does anyone else except you and maybe the Mrs. You’ve expressed your opinion. You caught opposition. I suggest you deal with it. Preferably without resorting to your usual tactics of attacking speakers personally but instead offering a cogent fact and logic based rebuttal to the argument proper. Your comment thus far was neither – just more opinion about how others are somehow inferior because they aren’t kissing Scalia’s ass for doing something right for a change. If you think criticizing Scalia is somehow unfair or – even better – impermissible because he actually made a fair ruling? Make your case or don’t.

    If you don’t like that this forum has (very few) rules because you are reminded of them? Again, your participation is entirely voluntary. As I said, you are free to defend Scalia is that is your wont, everyone else is just as free to criticize him whenever and however they see fit. Call it irrational at your own risk. Scalia is widely considered a terrible justice for a variety of reasons, some valid, some not, but your disapproval of others dislike for him and how they present it is irrelevant unless you have an argument as to why such criticism is unfair, unfounded or impermissible.

  24. Examples:

    Unfair Criticism: I don’t like Scalia or his opinion because he molests groundhogs. (Ad hominem and – to my knowledge – factually incorrect.)

    Fair Criticism: I don’t like Scalia because he has a track record that indicates he employs pretzel logic to get outcomes he desires and presents a conflicted picture of Constitutional interpretation. (Fair because it’s about his ideas, not about him.)

  25. bettykath 1, March 27, 2013 at 10:57 am

    Lots of good comments but, please, “deaf and dumb” has long been regarded as insulting and demeaning. Deafness has nothing to do with a person’s intelligence. And calling Kagan, Ginsburg, and Sotomayer “girls”? Another insult. C’mon, guys.

    nick spinelli 1, March 27, 2013 at 11:56 am

    It’s quite edifying to read all of the negative comments about Scalia when he makes a decision folks here abide, and no comments about Breyer who came down on the other side. You folks are consumed by hate.

    nick spinelli 1, March 27, 2013 at 11:56 am

    My bad, Dredd made a mild comment on Breyer.
    ==========================================
    Yeppers … but I was mildly scolded for mildly milding.

  26. Kyllo v. US (cited in the opinion) is worth a read. There, the use of infra-red sensors standing outside of the curtilage were deemed a search within the meaning of the 4th Amendment. The Court ruled that the use of technology not generally available to the public was a search requiring a warrant or exigent circumstances if trained on a private dwelling. In Kyllo, a warrant was eventually obtained but not until after the initial search to find radiating heat from lamps used in marijuana plant production.

  27. http://law.uark.edu/documents/Kyllo_v_US.pdf

    The dissent is interesting. The point about the Kylio ruling being too broad has some merit. Not all radiation is equal. While heat could be caused by a number of legal things going on, gamma rays aren’t indicative of anything other than something dangerous to public safety at a minimum. It’ll be interesting to see how the area of law affecting remote sensing/enhanced sensing plays out with the growth of the technology.

  28. Gene H:

    I’m thinking of using that Kyllo case to attack a “search” by a sound measuring machine for a noise ordinance violation case I have. As you probably guessed, it’s for a kid in my son’s fraternity charged with letting a party get out of hand. Funny thing is he was trying to get the thing simmered down when the cops came and busted them for them noise ordinance.

  29. mespo, Here in Mission Beach we get many Spring Breakers. A couple weeks ago we had some U. of Arizona underclass girls next door. They were good kids and schmoozed us w/ words and gifts[Corona]. Like your son, they tried to keep the noise down. I could hear them trying to run off drunken a-hole boys. The problem is they couldn’t. I told them they needed to give free beer to some righteous men who could enforce. Unfortunately, someone called the cops. Being all underclass students the house looked like it was on fire when the cops knocked..kids jumping out windows. The last few years the number of Spring Breakers have grown exponentially. Parents will pay for their kids to come to SD instead of Mexico. When it’s upperclass students they usually head to the bars after sunset. When their too young is when problems arise vis a vis noise.

  30. Mespo,

    It would be interesting to see if that works. Sound, though, as I’m sure you know, isn’t part of the electromagnetic spectrum, so I guess it would depend on how SCOTUS interpreted the act of “remote sensing” in Kyllo.

    Additionally, many municipalities have maximum dBSPL (usually A-weighted) ordinances. In my experience, as a front-of-the-house mixing engineer for many years for large concerts, they do enforce these ordinances.

  31. mahtso,

    Model Rule of Professional Conduct 8.2(a) only applies to practicing lawyers and members of the bar in jurisdictions that have adopted that particular rule of the MRPC. It is also usually applied only when a commenting attorney has a case before the judge they are discussing. This is what trips up a lot of celebrity seeking attorneys who want to play the “trial by media” card. The “Dogs” have previously indicated they are no longer in the profession and Frankly isn’t in the profession to my knowledge (although I did snicker when he called Scalia “Fat Tony”.). The lawyers posting here by in large keep criticisms technical (bad logic, poor interpretation, political considerations over legal principles, ignoring stare decisis, etc.), but the general public? Are free to say what they like about judges with the noted exceptions already provided by law (threats, etc.). Judges are not sacred and they are subject to criticism, especially when the actions criticized themselves serve to undermine the legal system and the public’s trust in it. Criticism is part and parcel of political discourse.

  32. Unfair Criticism: I don’t like Scalia or his opinion because he molests groundhogs. (Ad hominem and – to my knowledge – factually incorrect.)
    =========================================================

    it might explain why phil was so far off this year.

  33. I like Scalia when he promotes and extols the Confrontation Clause. I do not like the fact that he stops his reverence for the Constitution after the first ten amendments. The notion of Originalism is not very original. If he would embrace the 14th Amendment and become Reconstructed then he would be on the level playing field. There is not one Justice who hits all the cylinders.

    The dog alert case brings some issues to fore that are interesting to discuss on this blog. There is no reason to get mad at each other. If I rant and utter dogpaw then please forgive me. If I utter dogma then I will get yelled at by my mom.

    Judges who sit on courts of appeal need to be scrutinized and criticzed regarding their comments and written opinions that shape our life, our liberty and our pursuit of happiness. Lawyers have a right to contribute to the conversation. If I were to be called on some carpet for criticizing a legal opinion or the mindset of a judge then I would bring the dog pac and expect all Americans to stand up for the First Amendment. When we itchBay about a court decision we are petitioning our government for redress of grievances. That comes under the strongest prong of the First Amendment.

  34. Under lying to Scalia’s thought process is the premise that property rights are sacrosanct, to the exclusion of any consideration of any so called expectation of privacy. The property right box allows him to “objectively” make a decision, the privacy issue necessarily requires incremental steps of judgment. He, by championing the decision through authorship thus avoids taking a stand on the judgment issue.

  35. “In an age in which the actions of the police—militarized extensions of the government—are repeatedly sanctioned by the legislatures and the courts, hard-won concessions such as the U.S. Supreme Court’s 5-4 ruling in Florida v. Jardines that the use of drug-sniffing dogs to carry out warrantless searches of homes is unconstitutional comes as little comfort. After all, it was not long ago that this very same court sanctioned the use of drug-sniffing dogs in roadside stops, a practice that has proven extremely profitable for law enforcement officials tasked with policing the nation’s forfeiture corridors.” John Rutherford, Whitehead Institute

    (https://www.rutherford.org/publications_resources/john_whiteheads_commentary/governmental_highway_robbery_asset_forfeiture_and_the_pillaging_of_the)

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