Today, most Supreme Court watchers are focused on the oral argument in the same-sex marriage cases. But the Court also released an important opinion in Florida v. Jardines, ruling that an officer conducts a Fourth Amendment search when he brings a drug dog onto the porch of a house to sniff the front door. Jardines is the second drug dog case of the Term, following Florida v. Harris, which I discussed here.
Facts. A Miami officer received a tip that marijuana was being grown in a specific residence. A “surveillance team” subsequently went to the residence. The officers saw no activity, so two, plus a drug dog named Franky, approached the house using the driveway and a paved path. As the dog neared the front porch, he began to “track” back and forth, apparently detecting the smell of drugs. He ultimately alerted at the base of the front door.
After a minute or so, the officers left, then obtained a search warrant based on the alert. During the ensuing search, they found marijuana plants. The defendant was present at the scene, and he was arrested and charged with drug trafficking.
The defendant moved to suppress, arguing “that the canine investigation was an unreasonable search.” The trial court agreed, the Florida appeallate courts split, and the case made its way to the Supreme Court.
Majority opinion. The Court divided 5-4, with Justice Scalia writing the majority opinion and ruling for the defendant. Justice Scalia based his reasoning on the “physical intrusion” theory of the Fourth Amendment that he advanced in United States v. Jones, 565 U.S. __ (2012), the GPS tracking case. He viewed the case as “straightforward,” because the officers entered the curtilage of the defendant’s home seeking to gain information. (I blogged about Jones here.)
Justice Scalia rejected the argument that there was an “implicit license” for the officers to approach the home with Franky. He stated that custom “typically permits [a] visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave,” but does not allow a visitor to engage in investigative activity such as bringing a trained drug dog on the porch and allowing it to sniff around. In other words, the scope of the implicit invitation that allows visitors to come to the front door of a home “is limited not only to a particular area but also to a specific purpose.”
Finally, Justice Scalia distinguished Illinois v. Caballes, 543 U.S. 405 (2005) (holding that the use of a drug dog during a traffic stop does not violate the motorist’s reasonable expectation of privacy because the dog can only detect contraband). He emphasized that the Jones physical intrusion test is a separate analysis from the reasonable expectation of privacy test. Therefore, even if the use of a drug dog cannot impinge on a reasonable expectation of privacy, it can – and in this case, did – constitute a physical intrusion.
Concurrence. Justice Kagan wrote a concurrence arguing that the case could also be decided for the defendant under the reasonable expectation of privacy test, comparing the use of a drug dog to a situation in which “[a] stranger comes to the front door of your home carrying super-high-powered binoculars” and uses them to peer into the recesses of your dwelling, thereby exposing what you reasonably believed was private.
Dissent. Justice Alito wrote the dissent. He reasoned that visitors, welcome or not, friends or peddlers, have an implied “license to use a walkway to approach the front door of a house and to remain there for a brief time,” regardless of their purpose. And he found this case indistinguishable from a “knock and talk,” which both sides agreed are permitted and which also involve an officer approaching the front door of a residence with the intent to gather evidence. He also rejected Justice Kagan’s expectation of privacy theory.
Comments. A few brief thoughts about the significance of the ruling:
- Lineup. The lineup of Justices was interesting, with Justices Thomas, Ginsburg, Sotomayor, and Kagan joining Justice Scalia, and the Chief Justice and Justices Kennedy and Breyer joining the dissent. The case once again illustrates the fact that Fourth Amendment cases make strange bedfellows.
- Apartments. The Court didn’t ponder how its ruling would apply to apartments, townhouses, and other kinds of dwellings. Since some residences have no curtilage at all, it may be that a drug dog can be deployed at their front doors, while the same conduct is prohibited at a detached home.
- Backyards. Both the majority and the dissent noted that visitors’ implied license to approach a home extends only to the front entrance. As Justice Alito put it, “[a] visitor must stick to the path that is typically used to approach a front door,” and may not “meander into the backyard.” That may call into question some officers’ practice of going to the back door if no one answers the front door. (I addressed this issue here.)
- New theory. If there were any doubt after Jones about the importance or durability of the physical intrusion theory, this case settles it. It’s a major development in Fourth Amendment doctrine.