March 26, 2013

Supreme Court Rules Dog Sniff at Front Door is a Search; Barred by the 4th Amendment

Prior to hearing oral argument in the Proposition 8 case this morning, the Supreme Court handed down its decision in Florida v. Jardines, the other dog sniff case (Florida v. Harris was decided last month).  In an opinion written by Justice Scalia, the Court affirmed the Florida Supreme Court.  The Court held a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment.  Justice Kagan filed a concurrence joined by Justices Ginsburg and Sotomayor.  Justice Alito filed a dissent joined by the Chief Justice, and Justices Kennedy and Breyer.
Justice Scalia’s opinion for the Court resolved the Fourth Amendment question solely on property rights grounds, holding that bringing a dog to conduct a forensic search on someone’s porch constitutes a trespass at common law and, under the reasoning of last term’s GPS case, United States v. Jones, constituted a search subject to the limitations of the Fourth Amendment.  While the general public, including the police, generally have license to approach a house’s front door (for example, to leave a flier or ask the occupant to answer a question), that license does not include an invitation to bring a dog onto the porch to search for drugs.  If a member of the public did that, Justice Scalia observed, it would “inspire most of us to – well, call the police.”  For that reason, the majority decision found it unnecessary to decide whether the dog sniff also violated the suspect’s reasonable expectation of privacy.  When the police trespass onto private property to conduct a search, the Fourth Amendment applies regardless of whether the trespass also invades someone’s reasonable expectation of privacy.
Justice Kagan’s concurrence was devoted to explaining why, in her view, the case was an easy one under either a property- or privacy-based Fourth Amendment test.  No one would think it reasonable for a stranger to come to one’s porch with a pair of high powered binoculars and peer through the windows.  In the concurrence’s view, the dog sniff in this case was no different and no less an invasion of the occupant’s reasonable expectation of privacy.
The four Justice dissent found no support in the common law for the majority’s conclusion that the police conduct here constituted a trespass.  The majority acknowledged that the public, including the police, have license to approach the front door.  Justice Alito found nothing special about the fact that the police brought a drug sniffing dog with them (after all, “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.”).  The dissenters also did not view the dog sniff as invading any reasonable expectation of privacy given that one can expect that odors will waft outside of a house and, possibly, into public areas where there is no question a dog could sniff for evidence of drugs without constituting a search. a

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