Wednesday, March 27, 2013

Canine Sniff of Home is Fourth Amendment Search

Florida v. Jardines, No. 11-564, _ S. Ct. _, 2013 WL 1196577 (Mar. 26, 2013)

Majority (Scalia, Thomas, Ginsburg, Sotomayor, Kagan)
"The government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment." Here, based on an unverified tip, officers surveilled the house in question. Approximately fifteen minutes after beginning the surveillance, without having seen any suspicious activities, the officer approached the house with a canine on a six-foot leash. The canine detected an odor and alerted at the front door. The officers used the canine alert to obtain a warrant to search the house. Scalia wrote that, while background norms invite a person to come to the front door and knock,
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.

Basically, officers have an implied license to approach a door and knock, just like other citizens. Officers do not, however, have an implied license to enter the porch to conduct a search.

Concurrence (Kagan, Ginsburg, Sotomayor)
Justice Kagan argues the case could have been decided on the reasonable expectation of privacy test to arrive at the same conclusion. She compares the canine to a sense-enhancing device such as the thermal-imaging device in Kyllo, which cannot be used to search a home without a warrant or exigent circumstances.

Dissent (Alito, Roberts, Kennedy, Breyer)
Justice Alito disagrees with the majority’s approach since the officer and canine did not commit any sort of trespass by approaching the front door, remaining there a few seconds, and then leaving. He disagrees with the concurrence’s conclusion, finding that the occupant of a house does not have a reasonable expectation of privacy in odors emitted from the house that are detectable by dogs. He distinguishes canines from the thermal-imaging devise in Kyllo by focusing on the use of technology.

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