The Supreme Court has ruled in a 5-4 decision that when the government uses trained police dogs to investigate a home and its immediate surroundings it is a “search”  under the Fourth Amendment.

The case involved the Miami-Dade Police Department and Drug Enforcement Administration responding to an “unverified tip that marijuana was being grown in the home” of Joelis Jardines. In 2006, a joint surveillance team watched Jardines’ home and then, seeing there was no activity around the house, Miami-Dade Detective William Pedraja approached the home with Detective Douglas Bartelt, who had arrived at the scene with a drug-sniffing dog.

The dog approached the front porch of Jardines’ house and sense an odor. The dog sniffed the base of the front door and, as trained, sat in front of the door. Bartelt returned to his vehicle and notified Pedraja of a “positive alert for narcotics” and Pedraja used what had been learned to apply and receive a warrant. It was executed and marijuana plants were found in the home.

Charged with “trafficking in cannabis,” Jardines moved to suppress evidence obtained without a warrant. The Florida Supreme Court ultimately determined “the use of the trained narcotics dog to investigate Jardines’ home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.”

Justice Antonin Scalia wrote the decision for the Supreme Court. He determined the officers had gathered information in an area “belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself.” The officers “gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.”

Reaffirming some modicum of privacy protection in spite of the War on Drugs, Scalia declares:

[W]hen 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.

Scalia notes that this case bore some similarity to a case involving warrantless GPS tracking last term, US v. Jones. In this case, the Court ruled “tracking an automobile’s whereabouts using a physically-mounted GPS receiver is a Fourth Amendment search.” The government’s argument was the defendant had “no reasonable expectation of privacy” when traveling on a public road. But, since the GPS receiver was physically mounted on to the defendant’s automobile, the Court ”held that tracking the vehicle’s movements was a search.”

In both cases, evidence was gained by “physically intruding on constitutionally protected areas” and that is the key. The officers learned the information they used by “physically intruding on Jardines’ property to gather evidence.”

The government absurdly argued that “forensic dogs” had been “commonly used by police for centuries” to try and defend the unauthorized search, which Scalia flat-out rejects.

Briefly, Justice Samuel Alito wrote a dissenting opinion in support of granting law enforcement and government agents authoritarian powers:

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)…

Mail carriers or individuals delivering packages typically have no intent to engage in searches that would violate privacy. Visitors a person happens to be expecting are unlikely to conduct searches either. Police officers seeking information on an “occupant” may intend to conduct a search. All of these people can approach the house, but when the person they are looking for is not there, they cannot intrude on the property for their own purposes.

“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,” Alito argues.

Police batons have been in use since the Victorian Era in London. Its history does not give police the right to violate a person and beat him or her with it if the police decide that is what they want to do.

Alito concludes:

…[i]f a dog’s nose is just like a thermal imaging device for Fourth Amendment purposes, a search would occur if a dog alerted while on a public sidewalk or in the corridor of an apartment building. And the same would be true if the dog was trained to sniff, not for marijuana, but for more dangerous quarry, such as explosives or for a violent fugitive or kidnaped [sp] child. I see no ground for hampering legitimate law enforcement in this way…

Authoritarian minds seek unbounded powers for law enforcement, whether it involves warrantless surveillance and/or unauthorized searches. Had police personally asked Jardines about the “unverified tip” that he was growing or trafficking marijuana, they might have witnessed body language or heard something that gave them probable cause to search his home with a warrant.

Finally, as Justice Elena Kagan wrote in a concurring opinion:

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-highpowered 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.

It is that clear and straightforward that a violation of rights occurred, which is why it is alarming that this was a 5-4 decision and Chief Justice John Robert, Justice Anthony Kennedy and Justice Stephen Breyer, along with Alito, dissented.

Photo by Victoria Pickering released under Creative Commons License