Tuesday, March 26, 2013

How To Use The Supreme Court's Jardines Opinion Beyond Dog Sniff Cases

Sometimes the Supreme Court decides what looks like a narrow case in a way that has a much broader impact. Jardines is just such a case. A Florida police officer walked Franky, his drug sniffing dog, onto the porch of Joelis Jardines. After the dog bracketed the door, Franky sat down, indicating drugs were present in the house. The officer returned to his vehicle, requested a search warrant, and, pursuant to the search warrant, found Mr. Jardines’ marijuana grow. The Florida Supreme Court held that a Fourth Amendment search had occurred without a warrant when the dog sniffed at the door.

Justice Scalia wrote for a 5-to-4 majority holding that the officer’s behavior on the porch constituted a search within the meaning of the Fourth Amendment. In doing so, he builds and elaborates on the GPS decision in Jones and the infra-red heat detection decision in Kyllo, both of which Justice Scalia also authored. Justice Scalia begins by firming up the foundational approach to Fourth Amendment issues set out in Jones: although the Katz reasonable expectation of privacy analysis may add to the baseline, it does not subtract anything from the Fourth Amendment’s protections when the government engages in a physical intrusion on a constitutionally protected area. In other words, the starting point is to determine whether the government infringed upon a protected property interest, then address the additional layer of analysis of whether there is an intrusion upon a reasonable expectation of privacy.

The Court then provides some very useful language on the sanctity of home and the immediately surrounding area – the curtilage. “The front porch is the classic exemplar of an area adjacent to the home and to which the activity of home life extends.” Once the intrusion upon property was established, the remaining question was whether there was permission to do so: “As it is undisputed that the detectives had all four of their feet and all four of their companion’s firmly planted on the constitutionally protected extension of Jardines’ home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not.” Contrasting the dog sniff with Girl Scouts and trick-or-treaters, Justice Scalia found no implicit invitation for a search on the porch because “the background social norms that invite a visitor to the front door do not invite him there to conduct a search.”

In linking the decision to the officers’ purpose, Justice Scalia had to address the general rule – elaborated by Justice Scalia in Whren – that the subjective intent of the officer is irrelevant. The distinction depends upon the stage of analysis. In Whren, an objectively reasonable search was not vitiated by the improper motive of the officer – probable cause for the traffic stop rendered its pretextual purpose irrelevant. Here, in contrast, the question was whether there was an objectively reasonable search in the first place, which “depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.”

Justice Scalia then addressed the argument that dog sniffs in general do not implicate an expectation of privacy. The Court explicitly applied the Jones formulation of the reasonable-expectations test as in addition to, not a substitute for, the traditional property-based understanding of the Fourth Amendment. Based on that analysis, the Court did not need to rule on the reasonable expectation of privacy: “One virtue of the Fourth Amendment’s property-rights base line is that it keeps easy cases easy.” Even so, Justice Scalia went on to address the argument that the long-standing use of forensic dogs dissipated any reasonable expectation of privacy, which the State apparently invoked to address language in Kyllo about technological innovations. Here’s the stake in the heart of that argument: “[W]hen the government uses a physical intrusion to explore details of the home (including its curtilage), the antiquity of the tools that they bring along is irrelevant.”

The breakdown of the Justices in this case is fascinating. Justice Scalia was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan. Justice Kagan, joined by Justices Ginsburg and Sotomayor, provided a cheerful concurrence finding that the search also violated the Fourth Amendment under the reasonable expectation of privacy test. Justice Alito’s dissent finds no problem with officers intruding upon porches with a dog in tow, even where no conversation ensues. This case was surprisingly close: Justice Breyer – who was part of the Kyllo majority – joined with Justice Kennedy and the Chief Justice in Justice Alito’s dissent.

We’re not going to see a lot of cases that match the Jardines facts (and how often are we going to find a marijuana grow case in which the defendant’s name means “gardens” in Spanish?). But I suspect that the Jardines opinion will be showing up in a lot of our memoranda in support of motions to suppress. We will be analyzing Fourth Amendment issues under both property-rights and privacy-expectations. We will be using language on the importance of protecting the home, including the curtilage, from unwarranted governmental intrusions. We will be taking a second look at knock-and-talks and other visual intrusions from outside the home. We will be analyzing when the purpose of the law enforcement officer is relevant to determine the objective reasonableness of the intrusion. And we will be incorporating the Court’s treatment of the dog’s nose as – in Justice Kagan’s words – “a super-sensitive instrument” when we are confronted with technologically advanced government intrusions.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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