In a earlier posts, I wrote about the Supreme Court’s “dog sniff” cases, the former in which the Defendant was stopped while driving his truck and a drug dog eventually alerted to the presence of dogs, the latter case where (based on a “tip”) the police walked a drug detector dog on the Defendant’s porch, the pooch alerted, and based on that they got a warrant to search the house. As I predicted, the Supreme Court affirmed the search of the truck, and yesterday, they sided with the homeowner in the sniff that took place on the porch of the home. Yesterday’s case is Florida v. Jardines, and by a 5-4 margin the Court held that the sniff on the porch was illegal as being a search not done pursuant to a warrant.
The opinion resulted in a somewhat unusual alignment of justices. Justice Scalia, perhaps the Court’s most conservative member, wrote the majority decision. He was joined by Justice Clarence Thomas, a frequent ally, and three of the court’s more liberal members, Justices Ginsburg, Sotomayor and Kagan.
Justice Scalia said the Fourth Amendment, which prohibits unreasonable searches, is particularly concerned with the home and its immediate surroundings. When a dog on a leash roams around the outside of a residence, this is a tremendously different intrusion than visits from Halloween trick-or-treaters. “To find a visitor knocking on the door is routine (even if sometimes unwelcome),” Justice Scalia wrote. “To spot that same visitor exploring the front porch with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to – well, call the police.”
Justice Scalia grounded his opinion in property rights. This is the same theory he espoused when he wrote the opinion last year in Jones v. United States, the now-famous GPS case where a unanimous Court overturned years of practice by holding that placing a GPS monitor on the underside of a suspect’s vehicle is a “search” that must be supported by a warrant.
In yesterday’s case, Justice Kagan wrote a concurring opinion, joined by Justices Ginsburg and Sotomayor. They would also have relied on the “usual” rationale that looks to a person’s “reasonable expectation of privacy.” This seems to set up future battles, as noted by Justice Sotomayor’s spirited concurrence in the GPS case where she wrote: “[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. …This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. … I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”
Again, we watch these cases closely, not only to help our clients, but also to predict future cases. Stay tuned!