Those aren't Scooby Snacks!
Previously in The Fourth Amendment and You: Supreme Court says
slapping a GPS onto your Jeep Grand Cherokee is a "search" because it's on your property; also held last month
that Aldo the Meth-Sniffing German Shepherd could keep doing his thing at traffic stops because he's pretty damn good at it.
Today: But what about a pot-sniffing dog on your front porch?
In 2006, Detective William Pedraja of the Miami-Dade Police Department received an unverified tip that Joelis Jardines was growing pot at his home. One month later, the MDPD and DEA sent a joint surveillance team to Jardines’ home. Nothing happened for 15 minutes, until Franky the Drug-Sniffing Dog was brought to the house. Franky was trained to detect the smell of marijuana, cocaine, heroin and several other drugs, and went crazy near the door, spinning around all over the place. On that basis, the police obtained a search warrant, searched, and found marijuana plants growing there.
Jardines moved to suppress the evidence on Fourth Amendment grounds. In a 5-4 decision Tuesday, the Supreme Court agreed. The majority opinion was written by Justice Scalia, based on the same "a trespass is a search" analysis which guided him in the GPS case. Writing for himself and Justices Thomas, Ginsburg, Sotomayor and Kagan, Scalia explains:
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.” 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.” 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,” 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.” This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.”
If "Justice Scalia" and "wait, I like this Fourth Amendment decision?" don't square for you, keep reading:
Actually, it's pretty simple, he says, and it deals with what we generally give permission for when it comes to the front porch:
We have accordingly recognized that “the knocker on the 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.” 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) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.”
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 a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search
Justices Kagan, Sotomayor, and Ginsburg concur, basically to re-fight the GPS case in which each had dissented from Scalia's reasoning:
For me, a simple analogy clinches this case—and does so on privacy as well as property grounds. A stranger comes to the front door of your home carrying super-high-powered binoculars. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners. It doesn’t take long (the binoculars are really very fine): In just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one. Has your “visitor” trespassed on your property, exceeding the license you have granted to members of the public to, say, drop off the mail or distribute campaign flyers? 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.
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.’ ”...
I can think of only one divergence: If we had decided this case on privacy grounds, we would have realized that Kyllo v. United States, 533 U. S. 27 (2001), already resolved it. The Kyllo Court held that police officers conducted a search when they used a thermal-imaging device to detect heat emanating from a private home, even though they committed no trespass. Highlighting our intention to draw both a “firm” and a “bright” line at “the entrance to the house,” we announced the following rule:
“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”
Which leaves Justice Alito to dissent, again, writing for himself, the chief justice, and Justices Kennedy and Breyer. He, too, wants to re-fight the GPS case, but mostly he just wants to say "it's a dog! Get used to it."
The law of trespass generally gives members of the public a license to use a walkway to approach the front door of a house and to remain there for a brief time. This license is not limited to persons who intend to speak to an occupant or who actually do so. (Mail carriers and persons delivering packages and flyers are examples of individuals who may lawfully approach a front door without intending to converse.) Nor is the license restricted to categories of visitors whom an occupant of the dwelling is likely to welcome; as the Court acknowledges, this license applies even to “solicitors, hawkers and peddlers of all kinds.” And the license even extends to police officers who wish to gather evidence against an occupant (by asking potentially incriminating questions).
According to the Court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent’s house by his dog, Franky. Where is the authority evidencing such a rule? Dogs have been domesticated for about 12,000 years; they were ubiquitous in both this country and Britain at the time of the adoption of the Fourth Amendment; and their acute sense of smell has been used in law enforcement for centuries. Yet the Court has been unable to find a single case—from the United States or any other common-law nation—that supports the rule on which its decision is based. Thus, trespass law provides no support for the Court’s holding today.
Nor was this search that intrusive:
A critical fact that the Court omits is that, as respondent’s counsel explained at oral argument, this entire process—walking down the driveway and front path to the front door, waiting for Franky to find the strongest source of the odor, and walking back to the car—took approximately a minute or two. Thus, the amount of time that Franky and the detective remained at the front porch was even less....
Detective Bartelt did not exceed the scope of the license to approach respondent’s front door. He adhered to the customary path; he did not approach in the middle of the night; and he remained at the front door for only a very short period (less than a minute or two).
The dissenters also reject the concurrence's argument about there being a reasonable expectation of privacy here:
It is clear that the occupant of a house has no reasonable expectation of privacy with respect to odors that can be smelled by human beings who are standing in such places. And I would not draw a line between odors that can be smelled by humans and those that are detectible only by dogs.
Consider the situation from the point of view of the occupant of a building in which marijuana is grown or methamphetamine is manufactured. Would such an occupant reason as follows? “I know that odors may emanate from my building and that atmospheric conditions, such as the force and direction of the wind, may affect the strength of those odors when they reach a spot where members of the public may lawfully stand. I also know that some people have a much more acute sense of smell than others, and I have no idea who might be standing in one of the spots in question when the odors from my house reach that location. In addition, I know that odors coming from my building, when they reach these locations, may be strong enough to be detected by a dog. But I am confident that they will be so faint that they cannot be smelled by any human being.” Such a finely tuned expectation would be entirely unrealistic, and I see no evidence that society is prepared to recognize it as reasonable.
Bottom line: This dog does
not get his day.