Hot Docs: SCOTUS finds warrantless dog sniff of front porch unconstitutional

March 28, 2013

police dogThis week, all of the attention on the Supreme Court focused on oral arguments for Hollingsworth v. Perry and U.S. v. Windsor, the two same-sex marriage cases.

On Tuesday, however, the Supreme Court handed down its ruling in a significant criminal procedure case: Florida v. Jardines.

Jardines is a drug sniffing case from Florida – the second one heard this term.  The first, Florida v. Harris, was decided just last month.

Like Harris, Jardines involved a drug-sniffing police dog that served as the probable cause basis for a broader search.

Unlike in Harris, however, the Court came down on the side of the defendant in Jardines.  This is because of a significant distinction of what was at issue in both cases.

Harris, as discussed in this post, dealt with the sufficiency of a police drug-sniffing dog’s qualifications.  The legal issue revolved almost exclusively around whether the dog was reliable enough to establish the requisite probable cause to conduct a more intrusive search.

Jardines, by contrast, dealt with whether there was a Fourth Amendment “search” conducted by a police officer using a drug-sniffing dog.

The police action under review here was an officer bringing a police dog onto Jardines’ front porch, “where the dog gave a positive alert for narcotics.”

Based on this, the police obtained a search warrant, searched Jardines’ house, and found marijuana plants.  Jardines was subsequently charged with drug trafficking.

Jardines moved to suppress the evidence obtained from the search, claiming that the drug sniff was a Fourth Amendment “search,” and therefore required probable cause before the police could conduct it.  Since they had none, the drug sniff was unconstitutional.

The Florida Supreme Court sided with Jardines, and the U.S. Supreme Court affirmed: the drug sniff was a search.

Hot Doc: Florida v. Jardines

Source: Thomson Reuters News & Insight – National Litigation

The decision was 5-4, but it wasn’t exactly along ideological lines.

The majority opinion was written by none other than Justice Scalia, who was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan.

The majority found that since a physical intrusion by the government took place, “a ‘search’ within the original meaning of the Fourth Amendment” ha[d] “undoubtedly occurred.”

If you’ve been following these Fourth Amendment “search” rulings as closely as I have, this may sound more than a little familiar.  If you haven’t been Court-watching like me, let me fill you in.

The whole “physical intrusion” element to a Fourth Amendment search was most recently discussed in 2012’s U.S. v. Jones, in which the Court unanimously ruled that attaching a GPS tracking device to an individual’s car constituted a Fourth Amendment “search” and therefore required a warrant supported by probable cause (discussed in more detail here).

Just as in Jardines, Justice Scalia wrote the majority opinion in Jones – although, despite the opinion’s unanimity, not everyone was on the same page.

Justice Scalia’s majority held that because there was a physical intrusion on Jones’ car – the placing of the device – a search occurred under the Fourth Amendment

Justice Alito wrote a concurring opinion in which Justices Ginsburg, Breyer, and Kagan joined that held that the GPS tracking was unconstitutional because the government may not intrude – physically or electronically – into any place that a person has “a constitutionally-protected reasonable expectation of privacy” without a warrant.

Justice Sotomayor wrote her own concurrence saying that both standards are applicable.

Now, back to 2013, we see the same thing in the Jardines opinion: Justice Scalia’s majority opinion holds that since an unconstitutional physical intrusion occurred, there was a Fourth Amendment violation.  Scalia’s opinion specifically stated that they don’t have to decide whether there was also a violation of Jardines’ “reasonable expectation of privacy.”

And that’s why Justice Kagan wrote a concurring opinion, in which Justices Ginsburg and Sotomayor joined: they held that it was a Fourth Amendment “search” under Scalia’s “physical trespass” theory and the “reasonable expectation of privacy” theory (finding, in regards to the latter, that the police having dogs sniff for drugs right outside your front door is akin to someone coming “to the front door of your home carrying super-high-powered binoculars” to “peer through your windows”).

The dissent, however, written by Justice Alito and joined by Chief Justice Roberts and Justices Breyer and Kennedy, didn’t recognize that any kind of constitutional violation occurred, instead finding the police officer’s actions perfectly acceptable.

Fortunately for those of us who would prefer not to have police dogs sniff around our doors, the dissenters didn’t get their way.

Maybe the result would have been different had the Fourth Amendment “search” not been a physical intrusion, but it was, and the Supreme Court sided with individual rights.