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Round 2 on drug-sniffing dogs

Lost in the hullabaloo over the argument in the gay marriage cases this week was the fact that the Court issued an opinion in Florida v. JardinesThis was the "other" dog-sniffing case; a month ago, the Court in Florida v. Harris rejected the idea that the state was compelled to produce a wide variety of records in every case to substantiate a drug-sniffing dog's qualifications and credentials.  (Opinion discussed here.)  The result in Jardines was more favorable to the defense, and provides some movement toward what I think is emerging as the real issue here.

The facts in Jardine are simple.  Cops got a tip that Jardine was growing marijuana in his home, and decided to investigate.  A month later, they went to the house, observed it for fifteen minutes, saw no activity, and so approached the door with a drug-sniffing dog.  The dog alerted when he got onto the porch, and the police used that to get a warrant.  Drugs were found, the trial court granted a motion to suppress, the appellate court reversed, the Florida Supreme Court reversed that, and here we are.

The Court affirms, by a scant 5-4 vote, with Scalia writing for the majority.  The opinion is certainly one of his shortest:  it clocks in at barely over three pages, with no mention of what James Madison had for breakfast on the day the Congress debated the 4th Amendment and how that might have impacted his views toward the use of drug-sniffing dogs. 

The opinion has faint echoes of the one Scalia wrote last year in US v. Jones.  In Jones (discussed here), the Court had struck down the warrantless attachment of a GPS device to the defendant's car.  The government had argued that it wasn't a search at all, because one does not have a privacy expectation as to the exterior of his automobile.  (The device had been attached to the car's undercarriage.)  Scalia's opinion for the majority was based on a property law analysis -- the attachment was a "trespass" forbidden by the 4th Amendment -- rather than the privacy analysis that has largely been the focus in search and seizure cases since the Katz decision in 1968. 

Scalia, writing for the 5-4 majority, does the same thing here.  The area surrounding the home -- the "curtilage" -- is part of the home itself, for 4th Amendment purposes, and whatever Katz had added to the baseline by way of "privacy" interest, the baseline still was property:  an intrusion on the curtilage was an intrusion for 4th Amendment purposes, and required a warrant.

Of course, as Scalia readily concedes, the law has long been that there's no violation where a police officer comes onto your property and knocks on your door.  "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."  How to get around that?  To Scalia, it's all about the homeowner's "implicit" invitation:

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.

Kagan's concurring opinion, which is joined by Ginsburg and Sotomayor (Thomas provided the 5th vote for the majority), finds that the search is equally forbidden under a privacy analysis, but it's really a you-say-tomahto-I-say-tomayto sort of thing in this context:  calling the use of the dog an unlicensed intrusion on Jardine's property interest isn't far removed from calling the use of the dog an invasion of his privacy.  Katz was right:  privacy is at the heart of the 4th Amendment.

Kagan suggests that the outcome here is dictated by the Court's 2001 decision in Kyllo v. US, where the Court struck down a search where the police had used a thermal imaging device to detect the heat levels emanating from a private home, and announced a 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.

A couple of comments here.  First, Jardine, like Jones and Kyllo, represent the challenges in accommodating the 4th Amendment -- which was written at a time when public police departments, let alone the investigative techniques they use, were unknown -- with modern technology.  Kagan's reliance on Kyllo and its bright-line rule has merit here, especially in response to the dissenter's claim that the police were doing no more than relying on an animal which had been domesticated 12,000 years ago.  (As Kagan noted, the Babylonians weren't using them to sniff out drug caches.  Well, she didn't say that, but when she reads this, I'll bet she wishes she had.)  Drug-sniffing dogs are indeed a "device that is not in general public use," and there's a world of difference between the cops coming up on your porch with K-9 Joe, and the neighbor walking up to your door with his Shih Tzu in tow.

Second, despite his focus on property interests, Scalia comes close to recognizing the problem with the standard "expectation of privacy" test.  The 4th Amendment was not intended to regulate the interaction between private citizens; it was intended to regulate the interaction between private citizens and the government.  Privacy expectations have unquestionably been reduced by modern technology.  I have a card I use at the grocery store which allows me certain price breaks, but I know that in return I'm giving the store access to the information of exactly what I buy.  That the store has that information does not trouble me; if the government had it, it would.  I wouldn't want my internet service provider to go through my emails, but I'd be far more troubled if the government was doing that.  The focus of the 4th Amendment's privacy interest should be what the person's expectations are vis-à-vis the government, not the public at large.

Still, you take what you can get.  Jardine, especially Kagan's concurring opinion, does put another brick in the wall between police use of technology and the private citizen's privacy interests, and that's all to the good.

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