Friday, March 29, 2013

SCOTUS Stops Cops With Dogs From Searching Homes at Will

SCOTUS Stops Cops With Dogs From Searching Homes at Will:
This week, as Brian Doherty
noted
on Tuesday, the Supreme Court
ruled
that deploying a drug-sniffing dog at the doorstep of a
home qualifies as a search under the Fourth Amendment, meaning it
generally requires a warrant. The case involved a Florida marijuana
grower, Joelis Jardines, whose house was searched after a police
dog alerted to his front door, thereby providing the basis for a
warrant. Since the Court already had ruled (in
Florida v. Harris
, decided last month) that such an alert
provides probable cause for a search, its decision in Florida
v. Jardines
 is especially important. If it had ruled that
police and their drug-detecting canines may visit people's homes at
will, any cop with a dog would have been able to obtain a warrant
to search anyone's house simply by asserting that the animal had
signaled the presence of contraband.
The majority in Jardines is an interesting mix:
Antonin Scalia and Clarence Thomas, conventionally identified as
the most right-wing members of the Court, joined by Ruth Bader
Ginsburg, Elena Kagan, and Sonia Sotomayor, three members of the
Court's "liberal" wing. All five agreed that bringing a police dog
to a home with the aim of discovering illegal drugs amounts to
trespassing. As Scalia puts it in the majority opinion:

The officers were gathering information in an area belonging to
Jardines and immediately surrounding his house—in the curtilage of
the house, which we have held enjoys protection as part of the home
itself. And they gathered that information by physically entering
and occupying the area to engage in conduct not explicitly or
implicitly permitted by the homeowner.
Because "the officers learned what they learned only by
physically intruding on Jardines' property to gather evidence,"
Scalia explains, it is not necessary to decide whether their
investigation violated Jardines' "reasonable expectation of
privacy," the standard established in
Katz v. United States
, a 1967 case involving eavesdropping
by FBI agents who bugged a telephone booth. Kagan, joined by
Ginsburg and Sotomayor, goes further in a concurring opinion,
saying a drug-detecting dog at the dooorstep also meets the
Katz criterion.
In
U.S. v. Jones
, a 2012 decision involving GPS surveillance,
Scalia likewise emphasized
the physical intrusion involved in attaching a tracking device to
the suspect's car, while a concurring opinion by Samuel Alito
(joined by Kagan and Ginsburg) preferred the
reasonable-expectation-of-privacy approach. Although the trespass
test and the expectation test led to the same outcome in these two
cases, they have different implications in other situations. By
using cellphone geolocation, surveillance cameras, or drones,
police can obtain evidence similar to the tracking data at issue in
Jones without touching the target's property.
Similarly, police can subject a residence to a canine smell test
without trespassing as long as they remain on public property, as
opposed to someone's porch or the private path to his door. So if
you live in a townhouse or apartment that abuts a public sidewalk,
Scalia's analysis in Jardines does not help you.
Likewise if you live in an apartment building whose landlord
lets cops roam the halls with their dogs.
As Steve Chapman
noted
in a recent column, Scalia could have provided more
protection for privacy by applying the logic of his opinion in

Kyllo v. United States
, a 2001 decision that said using
thermal imaging to identify the homes of marijuana growers
qualifies as a search even though it does not involve trespassing
on anyone's property. Kagan suggests as much in her concurrence,
quoting this seemingly relevant sentence from Scalia's majority
opinion in Kyllo: "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."
One reason Scalia chose not to put a drug-detecting canine in
the same category as a thermal imager may be that doing so would
sit uneasily with decisions in which the Court has held that using
a police dog to sniff out drugs in a car or a suitcase does not
constitute a search. As I
argue
in the March issue of Reason, those rulings are
based on an exaggerated view of canine capabilities, according to
which an alert by a "well-trained narcotics detection dog" signals
nothing more or less than the presence of contraband. In reality a
police dog's alert may indicate nothing more than its handler's
suspicions, magically transforming a cop's hunch into probable
cause. The
upshot
, given all the pretexts that police can use to pull
people over, is that a cop with a dog can search any vehicle he
wants. Although the justices missed an opportunity to restrict
that power in Harris, at least they did not extend it to
homes in Jardines.