The Supreme Court Rules Against The Dogs
Jardines v. Florida
2013 U.S. LEXIS 2542
The Miami Police Department received an unverified tip that marijuana was being grown in the home of Mr. Jardines. One month later, the Department and the Drug Enforcement Administration sent a joint surveillance team to Mr. Jardines' home. Detective Pedraja watched the home from the street for a time and could not see inside because the blinds were drawn. The detective then walked down the driveway and up to the front door of the home in the company of fellow detective Bartelt, who had with him a "drug-sniffing" dog on a leash. Later, in a hearing to suppress evidence of marijuana in Mr. Jardines' home, the detectives testified that, upon reaching the front door, "the dog began tracking back and forth" engaged in what the detectives called "bracketing," "back and forth," "back and forth." After sniffing the base of the door, the dog sat. Detective Bartelt left the scene at this point, informing Detective Pedraja "that there had been a positive alert for narcotics."
Note: The whole point here, is that the Government had weeks to seek a warrant from a magistrate—a neutral judge—to "search"Mr. Jardines house. The Government chose to ignore the necessity of a warrant and simply went with a dog to snoop. Justice Alito, Chief Justice Roberts, Justice Breyer, and Justice Kennedy think the choice the Government made was perfectly all right. Five justices—just one vote makes the difference—think the search was a violation of the Fourth Amendment, because the Government not only trespassed but also intruded upon the privacy an ordinary citizen in Mr. Jardines' circumstances would have expected.
On the basis of Detective Bartelt's statement, Detective Pedraja applied for and received a warrant to search the residence. The subsequent search revealed the marijuana. Mr. Jardines was arrested on the charge of growing dope. Jardines moved to suppress the evidence on the ground the dog sniff at his door was an "unreasonable search." The trial court granted the motion, but the Florida Court of Appeal reversed. The Florida Supreme Court reversed the Court of Appeal, holding that the use of the drug-sniffing dog to investigate Jardines' home was a search within the meaning of the Fourth Amendment to the United States Constitution and, since it was unsupported with probable cause, the warrant issued by the magistrate, being based on information gained by the search, was invalid.
Issue To Be Decided
Was The Detectives' Use Of The Drug-Sniffing Dog A
Within The Meaning Of The Fourth Amendment?
Note: a "search" must have a warrant.
Justice Antoin Scalia delivered the majority opinion of the Court which was joined in, for different reasons, by Justices Ginsburg, Sotomayor and Kagen. Justice Thomas signed the opinion.
Under the Fourth Amendment, when "the Government obtains information by physically intruding on persons, houses, papers, and effects, a `search' within the original meaning of the Amendment has undoubtedly occurred." (Citing cases; internal quotation marks have been left out and the italics have been added.)
"By reason of our decision in Katz v. United States, (1967) 389 U.S. 347, property rights `are not the sole measure of Fourth Amendment violations,' but though Katz may add to the baseline, it does not subtract anything from the Amendment's protections `when the Government does engage in a physical intrusion of a constitutionally protected area.'"
Note: In Katz, FBI agents, suspecting that Katz was relaying book-making information through telephone calls made from a public telephone booth, placed a listening device on the exterior surface of the booth. After Katz's conviction, he appealed the trial court's refusal to suppress the evidence obtained in this fashion. The Court of Appeal held that, since there was no physical intrusion, there was no Fourth Amendment violation.
Justice Stewart, writing the majority opinion, said that the Amendment "protects individual privacy against certain kinds of government intrusion, but its protections go no further, and often have nothing to do with privacy at all. The idea, Stewart said, of an "area" being "constitutionally protected"misses the main point of the Amendment: "it protects people not places. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."(underlining added.)
In holding that Katz's expectation of privacy was protected by the Amendment, Stewart said, when Katz shut the booth door behind him and paid the toll, he "surely [was] entitled to assume that the words he uttered into the mouthpiece would not be broadcast to the world."Thus, the reach of the Amendment "cannot turn upon the presence or absence of a physical intrusion into any given enclosure."
"The Government's conduct violated the privacy upon which Katz justifiably relied while using the telephone booth and thus constituted a `search and seizure' within the meaning of the Fourth Amendment" The fact that the device did not penetrate the wall of the booth is irrelevant.
Justice Scalia, then, is saying that when a physical intrusion has occurred, that fact does have relevance, but the absence of such an intrusion does not necessarily mean there is no Fourth Amendment protection. The analysis simply turns from the issue of whether there was an intrusion to the issue of whether the defendant's expectation of privacy is justified under the circumstances.
Query: What "justifies" Jardines' expectation that the Fourth Amendment protected him from the Government bringing drug-sniffing dogs to his door without a warrant?
Justice Scalia now bases his decision—three of the concurring justices base theirs on Jardines' reasonable expectations—on the plain fact that the Government agents gained their information by "physically entering and occupying [a constitutionally protected place—the "curtilage" of the house—] to engage in conduct not explicitly or implicitly permitted by the homeowner." (Italics added.)
Justice Scalia put the idea this way: "The area around the home is "intimately linked to the home, both physically and psychologically, and is where privacy expectations are most heightened. Here there is no doubt the officers entered it. The front porch is the classic example of an area adjacent to the home and to which the activity of home life extends."
Note: So we know that, as far as Scalia is concerned, the particular place upon which the officers stood to gain their information was a "constitutionally protected area."Scalia now focuses on the issue of whether the officers intruded into this area without Jardines' permission, expressed or implied by circumstance. Scalia does not base his decision on the idea that Jardines' expectation of privacy was justified by circumstance. (This is mere twist of semantics.)
"We turn now to the question of whether the officers' investigation was accomplished through an unlicensed physical intrusion. A license may be implied from the habit of the country. We have thus recognized that a knocker on the door is an implied invitation or license to attempt an entry, justifying all matters of persons to walk up to the door."
Note:For example, the mail carrier, girl scouts, peddlers, a police officer wishing to ask if you are growing marijuana inside? How about a stranger wishing to explore the curtilage of the home with a trained drug dog? So the "implied invitation" that creates the "license" which defines the difference between a trespass and an authorized approach turns on the reasonable expectations of the ordinary homeowner? So in the context of trespass the homeowner's expectations do matter? (See, a mere twist of semantics.)
"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. (Original italics.)
Note: Later we will see how the dissenters, of which there are four, explain away this issue of the scope of the implied license to walk up to the door.
"Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search. Here the officer's conduct objectively reveals a purpose to conduct a search, which is not what anyone would think (an objectively reasonable person in the officers' shoes) he had a license to do."
"Just last term the Government argued that a person operating a vehicle on a public road had no reasonable expectation of privacy as to his whereabouts on the road. But because the Government had attached a GPS device to his vehicle, thus intruding physically upon his effects, we held that tracking the vehicle's movement was a search."
Note: See how important are both prongs of the theory: In the GPS case, because the vehicle was on the open road the driver had no reasonable expectation that his whereabouts would be secret, but because the government physically intruded upon his "effects"—the vehicle—the trespass invalidated the search.
"Thus, we do not need to decide whether the officer's investigation of Jardines' home violated his expectation of privacy under Katz; it is enough that the officers learned what they learned only by physically intruding on Jardines' property [without an implied license to do so]."
The Concurring Opinions
Three of the five justices—Kagan, Ginsburg, and Sotomayor—based their decision to affirm the Florida Supreme Court's decision not upon Scalia's analysis of the property license issue, but upon the reasonable expectations of the homeowner to privacy.
Justice Kagan writing for the three said this:
"A stranger comes to your door with high-powered binoculars and uses them to peer through your windows. His uncommon behavior allows him to learn details of your life you disclose to no one. Has your visitor trespassed, exceeding the license you have granted to members of the public to, say, drop off the mail? Yes, he has. And has he also invaded your `reasonable expectation of privacy,' by nosing into intimacies you sensibly thought protected from disclosure? Yes, of course, he has done that too."
"It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property naturally enough influences our shared social expectations of what places should be free from governmental intrusions."
Note: Why then does it matter whether the one or the other theory is used to resolve the issue? Well, what happens when there is no physical intrusion, as in the case of Kyllo v. United States where the government agents stood on the public street and aimed a heat sensing device at the defendant's home, designed to discover the marijuana growing inside; or as in the case of California v. Ciraolo where the government agents hovered in a helicopter overhead the defendant's home looking for the marijuana plants growing in the yard? In either case there was no physical intrusion upon constitutionally protected space; but was there intrusion into the homeowner's reasonable expectation of privacy. In Kyllo the Court majority answered "Yes;" in Ciraolo the majority answered "No."So, as in all things legal, circumstances matter.
The Dissenters' Contrary View Of Things
Justice Alito wrote the dissenters' opinion:
"According to the Court majority, the police officer in this case committed a trespass because he was accompanied during his otherwise lawful visit to the front door of the home by his dog, Franky."
Note: How clever is Alito in this: the Government was "lawfully visiting the front door of Jardines' home," Alito is saying, because, since persons generally may walk up to the door and knock, so too, ordinarily, can police officers. But, of course, the police officer did not walk up to knock did he, Justice? He walked up to sneak a dog sniff at the door. This fact, as Alito grudgingly admits, is the reason the majority held the officer trespassed which resulted in the Court ruling the officer's presence at the door was a violation of the Fourth Amendment.
"Where is the authority evidencing such a rule? Dogs have been domesticated for about 12,000 years. Their acute sense of smell has been used in law enforcement for centuries. Yet the Court has been unable to find a single case that supports the rule on which its decision is based."
Note: What silliness is this? Could it possibly be that, until this case, no police officer was stupid enough to think he could get away with trespassing upon the front porch of a person's home to dog sniff at the door? This guy, Alito, is dangerous to American liberty.
"The Court's decision is also inconsistent with the reasonable expectations of privacy test that the Court adopted in Katz. A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public."
Note: Say huh? Alito builds his sentence on the predicate that the majority rejected; i.e., that the front porch of Jardines' home was "open" to the officer with the sniffing dog because it was generally open "to the public." How about honesty in expression, Justice? Put it the way you mean it: "A reasonable person understands that, if a police drug dog is brought to his front door, odors emanating from the home may be detectable." And with that understanding, would a reasonable person, Justice, permit the police to bring the dog to the door? Of course not. Chief Justice Roberts, and Justices Breyer and Kennedy signed on to this silliness. A sad commentary on the state of Union to be sure.
"As I understand the law of trespass and the scope of the implied license, a visitor who adheres to these limitations is not necessarily required to ring the doorbell, knock on the door, or attempt to speak with an occupant. Mail carriers and individuals distributing flyers may leave the items and depart without making any attempt to converse. A pedestrian looking for an address may walk up to the door to check the house number."
Note: Alito wrote these sentences to simply fill space, as the hypothetical facts the sentences express add nothing to the legal analysis of whether the officer, coming to the door with his drug dog, was searching the constitutionally protected front porch without a warrant, as required by the Fourth Amendment.
"Police officers restricting their activity to areas to which the public is impliedly invited are permitted the same intrusion and the same level of observation as would be expected from a reasonably respectful citizen. Detective Bartelt did not exceed the scope of the license to approach Jardines' front door."
Note: How can this silliness be dignified with the label serious judicial analysis? The public is impliedly invited by the ordinary homeowner to bring their dogs to the door for the purpose, not of leaving mail, flyers, or Girl Scout cookies, but to sniff out what is happening inside. This man's mind emanates the odor of tyranny. He will certainly happily rule the President can kill Americans by drone.
"In the entire body of common law decisions, the Court has not found a single case holding that a visitor to the front door of the home commits a trespass (He's back to that!) if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass. The Court responds that it is not the dog that is the problem, but the behavior that here involved use of the dog. But where is the support in the law of trespass for this proposition. If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years."
Note: Oh! I see. According to Alito, with three justices signing on, the ordinary American citizen invites police officers to walk to the front door of his home and sniff.
Alito is out of ammo; he is repeating himself. What Alito's position boils down to, he admits finally, is this: "I would not draw a line between odors that can be smelled by humans and those that are detectible only by dogs."In other words, I would not draw a line between odors the Government could not have detected but for its unwarranted use of a dog sniffing at an American citizen's front door. You see, Alito would warrant it.