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.
“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.
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.
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.
I was surprised by the result… Since they’d already screwed a vehicle search…. But the rational was good….
What about using FLIR to detect grow lights then?
Whether the instrument used to intrude is biological or technological, I see little difference.
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.)
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?
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.
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.
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.
Good. Rein ’em in… (and I don’t mean the dogs.)
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
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.
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.
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.
Scalia has lost his mind, but I’ll take this one.
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?
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.
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.
Amen, but I get worried when Justice Thomas is on the right side of a decision.