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Supreme Court Holds that “Dog Sniffing” in Area Around the Home Constitutes a Fourth Amendment “Search”

Fourth Amendment Privacy
Florida v. Jardines By Mary Grinman – Edited by Geng Chen Florida v. Jardines, No. 11-564 (U.S. Mar. 26, 2013) Slip opinion [caption id="attachment_3179" align="alignleft" width="150"] Photo By: Charlie Kaijo - CC BY 2.0[/caption] In a 5–4 decision, the Supreme Court of the United States affirmed the Supreme Court of Florida, which had held that the use of a trained narcotics dog to inspect the area immediately surrounding Joelis Jardines’s home, including his porch, constituted a Fourth Amendment “search.” Justice Scalia’s majority opinion held that using drug-sniffing dogs in the area immediately surrounding a home was a search within the original meaning of the Fourth Amendment because the Government physically intruded onto the constitutionally protected “curtilage” of the home. See Jardines, slip op. at 9–10.  Although some intrusion onto curtilage is permissible, the Government’s purpose “to engage in conduct not explicitly or implicitly permitted by the homeowner,” id. at 3–4, rendered this intrusion unlawful. The Court found it unnecessary to decide whether Jardines had a reasonable expectation of privacy under Katz v. United States because this was a much more fundamental Fourth Amendment case. Id. at 9. SCOTUSblog presents a concise summary of the opinion. Forbes questions whether the decision’s focus on property rights lays groundwork for an attempt to overrule Katz. The Cato Institute, one of the amici in this case, applauds Justice Kagan’s concurrence for focusing on the specialized nature of the drug-sniffing dog, but regrets the use of the “reasonable expectation of privacy test.” The majority contended that the police conduct in this case constituted a physical intrusion into Jardines’s home, and that because the Fourth Amendment absolutely protects people from government intrusion into their homes, there was no need for Jardines to demonstrate any reasonable expectation of privacy. This case falls into “the traditional property-based understanding of the Fourth Amendment.” Jardines, slip op. at 9. However, the state of Florida argued that Jardines implicitly gave police officers license to be on his front porch. Id. at 5. The law of trespass recognizes an implied license, based on custom, that permits visitors to approach a home by the usual path. Id. at 6. The Court rejected this argument because “[t]here is no customary invitation to” use “a trained police dog to explore the area around the home in hopes of discovering incriminating evidence.” Id. at 7. Although the majority did not reach the reasonable expectation of privacy test, Justice Kagan’s concurrence claimed that this was an alternate, and equally persuasive, ground for finding that a Fourth Amendment search did occur. If the case were resolved on privacy grounds, then the Supreme Court’s decision in Kyllo v. United States, 533 U.S. 27 (2001) (holding that the use of a thermal imaging scanner to detect heat radiating from a home constituted a Fourth Amendment search), would be controlling. Jardines, slip op. at 3 (Kagan, J., concurring). In Kyllo, the Court found significant “the Government[’s] use [of] a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion.” Kyllo, 533 U.S. at 40. In the present case, the concurrence argued that a trained police dog constituted such a device, making its use an unlawful Fourth Amendment search. See Jardines, slip op. at 4–5 (Kagan, J., concurring). Justice Alito in dissent contested both the majority’s application of the trespass test and the concurrence’s interpretation of Kyllo.  First, the dissent argued that police officers, like the general public, have a license to physically approach a home to ask questions of its occupants, and that “not . . . a single case hold[s] that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash,” and the smell of marijuana is detectable without a physical intrusion. Second, the dissent asserted that “Kyllo is best understood as a decision about the use of new technology,” and a trained police dog “is not a new form of ‘technology’ or a ‘device’” since “the use of dogs’ acute sense of smell in law enforcement dates back many centuries.” Jardines, slip op. at 11 (Alito, J., dissenting). As seen in the concurrence and dissent, what constitutes a “sense-enhancing” device not in “general public use” is a question that, over a decade after Kyllo, continues to divide the Justices. The majority avoided deciding this issue, largely by relying on the physical trespass test revived by last term’s United States v. Jones, and applying the common law property concept of license to Fourth Amendment doctrine. Mary Grinman is a 1L at Harvard Law School.