The Supreme Court just handed down its decision in Florida v. Jardines. The Court agreed with the Florida Supreme Court that bringing a drug-sniffing dog onto a person's front porch constitutes a search of a residence that requires a search warrant. The events that birthed this case are pretty straightforward: police brought a drug-sniffing dog onto a guy's front porch, where the dog "alerted" to the presence of drugs. Cops then got a search warrant based on that evidence, and found marijuana plants growing inside when they searched the house. The Florida Supreme Court said that the cops violated the 4th Amendment of the US Constitution when they brought the dog onto the porch. The 4th Amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." You will note that the 4th Amendment doesn't say that all searches of homes need a warrant; it merely says what conditions must be met for a warrant to be issued. The first part, restricting when searches can happen, forbids "unreasonable" searches, not warrantless searches. For a long time, the Supreme Court has reconciled the tension between the "reasonableness" part of the amendment and the "warrant" part of the amendment by saying that searches of homes are "presumptively unreasonable" unless the police have a warrant. Then they've found that there are exceptions, which have become numerous enough that they threaten to make the rule meaningless. However, in recent years the Supreme Court has been emphasizing that the home is special, and expanding the protection of the home against government searches. Justice Scalia, one of the most "conservative" of the justices, has led this approach. (He wrote the majority opinion in this case.) Traditionally, there are two ways to analyze searches: the "property" approach look at whether the search involved a government intrusion onto private property and, if so, finds the search illegal (generally) without a search warrant. The other approach stems from a case called US v. Katz, and involves checking whether the area that the government invaded was one in which a person had a "reasonable expectation of privacy." If so, then the cops needed a warrant; if not, then invading that space without a warrant will likely be reasonable. (In the Katz case, the Court decided that Katz had a reasonable expectation that he wouldn't be eavesdropped on while using a closed telephone booth, and found the recording of his call without a warrant to be an illegal search.) Under the "property" approach, a search warrant is needed to search a home unless there's some exception -- for instance, if a murderer is chased into the home by cops, or the house is on fire and the cops need to save kids inside and stumble upon a kilo of heroin, or if there is a marijuana plant on the windowsill in plain view of the public street. There is also an ambiguous area around the house -- the porch, the yard, the walkway, etc. It goes by the quaint name of the "curtilage." This area gets some protection from government intrusion. It's been a while since there were major cases about this area, and the last bundle of them eroded the protection of the curtilage quite a bit: a police helicopter can fly over and spy weed in your backyard without a warrant, a cop on a ladder on a public street can peer over your backyard fence and use what he sees, cops can use what they see when they walk across your yard to knock on the door like anyone else could do. In some ways, Jardines is a curtilage case, but in some ways it's a case about the use of forensic tools to peer inside homes. The Court said that the cops were OK going up on Jardines' porch to knock on the door as any other visitor would do. But the Court referred to the permission the public has to enter the curtilage to approach the house and knock as a "license." And that license, says the Court, is limited in scope. It is not a license to bring a dog into the curtilage. Justice Scalia wryly observes that coming onto someone's curtilage with a dog is the sort of thing people would usually call the cops over. It's an intrusion. Because of this, Justice Scalia writes, use of the dog in the curtilage is a violation of the privacy of the home (the curtilage is considered a quasi-part of the home). For this reason, Justice Scalia doesn't believe it necessary to decide whether Jardines had a reasonable expectation of privacy -- this is strictly a property case, in Scalia's view. Justice Kagan wrote a concurrence, agreeing with the result reached by Scalia but explaining that she believed that Jardines was illegally searched whether on a property analysis or a reasonableness analysis. Jadines has a reasonable expectation of privacy in the curtilage. Justices Ginsburg and Sotomayor joined that opinion. Dissenting was Justice Alito, who wrote that dogs have been domesticated for 12,000 years and that there's nothing outré about bringing one with you when you approach someone's front door to knock on it. Justice Alito points out the weakest part of Scalia's argument, but perhaps the point where real change in search and seizure doctrine may grow. The Supreme Court has long held that a dog sniff outside a vehicle or near a person's baggage is not a search at all. But here, Scalia hinges his analysis on the entry of a dog into the curtilage. He wants to say that's a trespass and therefore bad, but as Alito points out, there's nothing weird about bringing a dog with you when you go knock at someone's door. The really weird thing, the thing that makes the homeowner rightly enraged, is that the dog is a drug-sniffing dog. If someone brings one onto your property, you know they are searching you for drugs. Three justices (Kagan, Ginsberg, and Sotomayor) were on-board with saying that it is reasonable to expect privacy from a dog-sniff on your property. Justice Kagan compared this to the cops bringing a high-powered telescope onto your front porch and setting it up to look through your windows -- implicitly acknowledging that a dog-sniff is a search. Justices Scalia and Thomas disagree -- a dog-sniff is NOT a search, they want to maintain, but bringing a dog onto a front porch to do it is a trespass and therefore makes the entry onto the porch (as opposed to the sniff itself) an illegal search. Justice Alito, joined by Chief Justice Roberts and Justices Kennedy and Breyer, disagree and don't see this as a search. Their position is consistent with prior cases on dog sniffs. So what's the real takeaway? Perhaps -- just perhaps -- there's a chance that the Court might finally acknowledge the error underlying all of this mess: that a dog sniff is, and always has been, a search. It's exactly what Kagan called it -- the same as the use of an advanced forensic tool to search an area inaccessible without the use of that technology.
