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.
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“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)
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.
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.
That it does, pete.
Unfair Criticism: I don’t like Scalia or his opinion because he molests groundhogs. (Ad hominem and – to my knowledge – factually incorrect.)
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it might explain why phil was so far off this year.
Lottakatz, I second!
This decision surprised me in a good way, that is something SCOTUS normally doesn’t do.
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.
Regarding comments and the 1st A: Because this is a legal blog, I tend to view comments about the motives of Judges in light of ABA Model Rule 8.2(a).
Here is a link to an ABA opinion regarding the topic that itself links to the rule
http://www.americanbar.org/newsletter/publications/youraba/201110article02.html
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.
AY, Thanks. Good to be back.