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.
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.
Good luck, mespo. Let us know how it turns out.
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.
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.
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.
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.
AY,
As would I if Breyer had a track record like Scalia, but he doesn’t.
Nick,
Good to see you’re back… Yeah I agree with you….with regards to the court…
mahtso, Not just juvenile, Lord of The Fliesish.
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.)
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.
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.
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.
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.
My bad, Dredd made a mild comment on Breyer.
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.
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.
Gene H.,
You’re welcome.
Thanks, gbk. I musta missed that one. 😉
Gene H.
“What about using FLIR to detect grow lights then?”
The Supremes ruled in 2001 that IR scanning without a warrent violates the fourth in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).
http://en.wikipedia.org/wiki/Kyllo_v._United_States