Mar 27, 2013 Police must keep their drug dogs at bay more than they wish
Yesterday, I kept pinching myself in ecstasy over the Supreme Court’s 5-4 decision requiring police to have probable cause to believe the existence of relevant criminal activity before taking a drug-sniffing dog to the front door of one’s home. Florida v. Jardines, ___ U.S. ___ (March 26, 2013).
Then the dust settled around my ecstasy, with the following sobering thoughts:
Three justices joined Justice Alito’s strenuous dissent, which would permit police to bring sniffing dogs to one’s front door any time of day when people are customarily awake. Two of the dissenters (Justice Alito (62) and Chief Justice Roberts (58)) likely will be on the Supreme Court for at least another decade or two. That leaves at least two of nine Supreme Court seats that will long remain profound hurdles to having a Fourth Amendment with teeth, unless they change their minds.
– I know that President Obama nominates federal judges who are overall much less worse than a president Romney would have picked, but the Obama administration still argued before the Supreme Court to uphold as valid this drug dog sniff in Jardines.
Then again two justices whom I never wanted on the Supreme Court — and still do not — were responsible for penning Jardine’s majority opinion (Justice Scalia) and joining the majority opinion (Justice Thomas).
Now for some of the most thrilling quotes from Jardine:
– But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.Silverman v. United States, 365 U. S. 505, 511 (1961). This right 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; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window. We therefore regard the area immediately surrounding, and associated with the home”what our cases call the curtilage”as part of the home itself for Fourth Amendment purposes. Oliver, supra, at 180. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is as old as the common law,Hester, supra, at 59, so too is the identity of home and what Blackstone called the curtilage or homestall, for the house protects and privileges all its branches and appurtenants. 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769).
– [One’s] front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds. Breard v. Alexandria, 341 U. S. 622, 626 (1951).
– This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer)…
– But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging [meant to say "banging?] a knocker.
– It is not the dog that is the problem, but the behavior that here involved use of the dog. We think a typical person would find it ˜a cause for great alarm’ (the kind of reaction the dissent quite rightly relies upon to justify its no-night-visits rule, post, at 5) to find a stranger snooping about his front porch with or without a dog.
– 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.
Jardine of course talks about what pollice are permitted to do. Otherwise, I would simply be on a different planet:
– [O]fficers could have lawfully approached his home to knock on the front door in hopes of speaking with him [the silly police-named "knock-and-talk].
Concurring, and joined by Justices Ginsburg and Sotomayor, Justice Kagan wrote:
The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests. A decision along those lines would have looked . . . well, much like this one. It would have talked about ˜the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’
Curiously, dissenting Justice Alito underlines that the drug dog was at Jardine’s front door for "less than a minute or two" but that sounds longer than the timeframe that Justice Alito is willing even to allow police to linger at one’s front doorstep. He dissents in Jardine:
Similarly, a visitor may not linger at the front door for an extended period. See 9 So. 3d 1, 11 (Fla. App. 2008) (case below) (Cope, J., concurring in part and dissenting in part) ([T]here is no such thing as squatter’s rights on a front porch. A stranger may not plop down uninvited to spend the afternoon in the front porch rocking chair, or throw down a sleeping bag to spend the night, or lurk on the front porch, looking in the windows). The license is limited to the amount of time it would customarily take to approach the door, pause long enough to see if someone is home, and (if not expressly invited to stay longer), leave.
I am ready to use Jardine for a panoply of warrantless/non-probable cause police approaches to people’s homes. For instance, seeing that Jardine talks about an unspoken license to walk up to one’s home door and knock, under Jardine, a NO TRESPASSING sign would seem to prevent police from even knocking on the door, thus invalidating Maryland’s highest court’s opinion to the contrary in 2008. Jardine also supports invalidating appellate court cases that allow police to search trash cans found on people’s yards (premised on no reasonable expectation of privacy in one’s abandoned garbage) by supporting an argument that police do not have an automatic right to enter one’s land for the purpose of seizing garbage rather than knocking on one’s door, particularly when NO TRESPASSING signs are posted.
In the meantime, Jardine is cause for major celebration. I will drink to that.