The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

U.S. Supreme Court Holds that Government’s Use of Trained Police Dogs to Investigate Front Porch is a “Search” within the Meaning of the Fourth Amendment

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On March 26, 2013, the U.S. Supreme Court affirmed the decision by the Florida Supreme Court that suppressed evidence obtained following a trained police dog’s positive alert for narcotics from the defendant’s front porch. See Florida v. Jardines, 569 U.S. ____ (2013).   Writing for the majority in a 5-4 opinion, Justice Scalia focused on the government’s physical intrusion into the constitutionally protected area immediately surrounding the home and declined to consider whether the search violated the defendant’s reasonable expectation of privacy. 

Law enforcement had received an unverified tip that marijuana was being grown in the home of respondent/defendant Joelis Jardines.  Agents arrived at Jardines’ home with a drug-sniffing police dog and stood on the porch while the dog was given 6 feet of slack to sniff for narcotics.  The dog signaled an airborne odor that was emanating from base of the front door.  Based on the alert, the officers obtained a search warrant, found marijuana plants inside the home, and charged Jardines with trafficking in cannabis.  The trial court suppressed the evidence as the product of an unreasonable search under the Fourth Amendment, which ultimately was upheld by the Florida Supreme Court.

The majority (Justice Scalia, joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan) affirmed, holding that law enforcement’s use of trained police dogs to investigate the home and its immediate surroundings constituted a “search” within the meaning of the Fourth Amendment.  The constitutional violation was based on what the Court characterized as “the traditional property-based understanding of the Fourth Amendment.”  Otherwise put, the act of “march[ing] a bloodhound” to “trawl for evidence” was a physical intrusion on constitutionally protected areas that defied the Fourth Amendment’s “very core” of “the right of a man to retreat into his home and there be free from unreasonable governmental intrusion.” 

A concurring opinion from Justice Kagan (with Justices Ginsburg and Sotomayor) went one step further, calling the police action both a constitutional trespass and an invasion of privacy, as defined in Kyllo v United States, 533 U.S. 27 (2001) (finding a constitutional privacy violation for the government’s use of a thermal imaging device that was “not in general public use”).  Justice Kagan classified drug-detection dogs as specialized law enforcement tools for discovering objects not in plain view and likened their use to “super-high-powered” binoculars.   

In a scathing dissent, Justice Alito (joined by Chief Justice Roberts and Justices Kennedy and Breyer) wrote the conduct of the police officer neither constituted a trespass nor violated Jardines’ reasonable expectation of privacy.  The officer did not exceed the scope the implied license under Fourth Amendment jurisprudence to approach the front door, the license being limited to the amount of time it would customarily take to approach the door, pause long enough to see if someone is home and (if not expressly invited to stay longer), leave.  On the contrary, the officer adhered to the customary path, did not approach in the middle of the night, and remained at the front door for less than a minute.  Justice Alito likened this action to the standard “knock and talk” that has been deemed permissible police activity under the Fourth Amendment, and stated that residents do not have a reasonable expectation of privacy in odors that emanate from the dwelling and reach spots where members of the public may lawfully stand.  Finding no difference between odors that can be smelled by humans and those that are detectible only by dogs, Justice Alito rejected the analogy of the use of a drug-sniffing dog to the use of a thermal imaging device or other forms of technology, as advanced in Justice Kagan’s concurrence.

This sharply divided opinion presages more complicated constitutional privacy cases to come.  Had the canine detected the smell from a public sidewalk and not the curtilage of private property, the case would have been outside the scope of the majority’s property-focused holding.  And if law enforcement’s use of a police dog does not qualify as a “specialized law enforcement tool” to violate reasonable expectations of privacy, as suggested by Justice Alito, the question remains how “specialized” or “high-tech” a police device must be to constitute an unreasonable search under the Fourth Amendment.  

Author: Sherrie Kim Schiavetti

Associate, Advertising and Marketing, Litigation, Kelley Drye & Warren LLP

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