Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


A man's home

Wednesday's oral argument in the Supreme Court featured two-long anticipated cases about what certainly is not man's best friend: drug-sniffing dogs. Florida v. Jardines posed the question of whether a dog sniff constitutes a search, and Florida v. Harris presented the issue of exactly what the state must prove to show the dog is qualified at ferreting out narcotics. As I hinted yesterday, things didn't go so well for the defense in Harris, so we'll shove that discussion into next week. Today, we'll talk about Jardines, because it might present some good news. At least if you own a house.

Joelis Jardines owned one, and in November 2006 someone dropped a dime on him and told the Metro-Dade Police that Jardines was growing marijuana. A month later, they decided to check it out, and took the K-9 unit with them. Franky, the dog, and his handler proceeded to the front door, where Franky alerted. The cops got a warrant based on that, and the resulting search discovered growing 25 marijuana plants. The trial court tossed the search, the appellate court reversed, the Florida Supreme Court reversed that, and so everybody got together in DC on Wednesday to hash it out.

The case hinges on whether what the police did -- bringing the dog to the door and having him sniff around it -- constitutes a search. Greg Garre, Florida's lawyer, began by tossing down his best card, the Court's 2005 decision in Illinois v. Caballes, in which it held that the 4th Amendment wasn't violated by a dog's alert at a car. Garre seized on the language in Caballes that there was no search, because a search must invade some expectation of privacy, and no one has an expectation of privacy in contraband. Garre hadn't got more than two sentences into that point, though, before Kennedy dismissed it out of hand: "That just can't be a proposition that we can accept across the board."

As the argument progressed, it became clear that Garre's problem had less to do with the logical force, or lack thereof, of the contention than the Court's naturally protective instinct toward the home, one of the last bastions left standing from the general assault on the 4th Amendment that's gone on for the past three decades. And that's where everybody, including the justices, ran into trouble. Just two terms ago in Kentucky v. King the Court found no problem with the new police tactic of the "knock and talk": going to the door of a house or an apartment and knocking on it, in the hope that the owner will come to the door and allow something to be observed in "plain view," or give answers to the officer's questions which might provide probable cause to conduct a search. (Or, as in King, not answer the door at all, but make sufficient noises that lead the police to believe that something's afoot, so they can break down the door and immediately enter the premises.) Roberts and Alito pressed Howard Blumberg, Jardines' lawyer, with constant questioning: doesn't a homeowner expect people -- salesman, Girl Scouts selling cookies, just about anybody, including police officers -- to come to his front door? What difference does it make if the officer brings a dog along? Doesn't the homeowner "impliedly consent" to just that?

Ah, but what exactly does the homeowner "impliedly consent" to? Several justices focused on that, Kagan noting that the dog sniff involved "a lengthy and obstrusive process" (although the record isn't entirely clear, it apparently took about one or two minutes of sniffing before the dog alerted), and Ginsburg observing that "this is not any dog, this is a drug detecting dog." Kagan also posed the question of whether this might be a case of police using technology, analogizing it to the use of infrared technology to surveil the home for excessive heat indicative of drug cultivation, which the Court had declared impermissible in its 2001 decision in Kyllo v. US. Garre argued that "Franky's nose is not technology," and Kagan countered with a hypothetical about the invention of a "smell-o-matic" -- and no, I'm not making this up -- which would do the same thing a drug-sniffing dog would do. Whether that argument gains much traction is dubious; as Alito noted, people have been using dogs because of their superior olfactory senses for centuries.

While the rest of the justices focused on the privacy interest, Scalia broke from the pack. As I mentioned in my discussion of last term's decision in US v. Jones, Scalia had held that the placement of a GPS device on the defendant's car was a search, not because it intruded on the defendant's privacy interest, but because it intruded on his property interest: it constituted a trespass. He raised the same issue here. Blumberg's argument had two parts, his first being that when police conduct reveals any details inside a home which an individual seeks to keep private, that is a Fourth Amendment search. That general argument fared no better with Kennedy than Garre's had. Nor with the other justices, who urged him to move on to his second argument, which was that the use of the dog in this fashion constituted a physical trespass upon the curtilage, and Scalia was not in the least bit circumspect in buying into this rationale. Indeed, Scalia was willing to go further than Blumberg. At one point, Blumberg had appeared to concede that it would not be a search if the officer had come to the front door alone with the intent of trying to detect the odor of marijuana. Scalia to the rescue:

JUSTICE SCALIA: But, Mr. Blumberg, I think you're, with respect, misguided to concede that if it was just the officer alone without the dog, it would be perfectly okay.

MR. BLUMBERG: I did not mean to concede that, and I was going to say that.

JUSTICE SCALIA: And I would assume you would say that if the officer walks up there with no intention to knock and talk, but just walks up to the door with the intention of sniffing at the door, you would consider that to be a violation, wouldn't you?

How this all shakes out is up in the air, although you've got to feel pretty good if you're arguing a 4th Amendment issue for a defendant and you've got Scalia in your corner. But there's a subtle point that comes through from the Court's obvious veneration here for the home, and its treatment of apartment-dwellers in Kentucky v. King. (And here; everybody more or less acknowledged that taking Franky into an apartment building and walking him down the hall to sniff at each apartment door would pose no 4th Amendment problems.) It may be that the result in Jardines is to do a slight reworking of Anatole France's observation: that the 4th Amendment, in its majestic equality, forbids the police to bring drug-detecting dogs to sniff at the mansion doors of both the rich and the poor alike.


Recent Entries

  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech