No more snooping on the stoop
A month after the U.S. Supreme Court unanimously expanded the constitutional search powers of police drug-sniffing dogs, a divided court on Tuesday ruled that a canine’s snooping ends at a homeowner’s stoop, thus restoring some common sense to privacy rights.
In a 5-4 decision, the court said that the use of trained police dogs to investigate the home and its immediate surroundings constitutes a Fourth Amendment search and therefore requires a warrant. The opinion did not fall along normal ideological lines, with the majority composed of conservative justices Antonin Scalia and Clarence Thomas joined by liberals Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Kagan in February wrote the unanimous opinion in Florida v. Harris in which the court ruled that a drug-sniffing dog’s alert to his police handler constituted probable cause to conduct a Fourth Amendment search. That case involved a traffic stop.
In Florida v. Jardines, though, Kagan joined the majority in drawing the line on where such dogs can be deployed. That case involved Miami-Dade police who suspected marijuana was being grown in a residential home. After surveilling the outside of the house and seeing nothing illegal, officers approached the front porch with a drug-sniffing dog, which began to alert them to the presence of contraband. Officers proceeded to secure a warrant, searched the home and found marijuana plants.
Scalia, writing for the majority, essentially said a man’s home is his castle. Calling the decision a “straightforward one,” he cites court precedent that the Fourth Amendment’s “very core” includes a person’s right “to retreat into his own home and … be free from unreasonable governmental intrusion.” That protected space includes the “curtilage,” the area “immediately surrounding and associated with the home” — i.e., the front porch. In the dissent, Justice Samuel Alito argued the police officers can lawfully approach your front door — just as mail carriers or people distributing flyers do — and “see, hear and smell whatever can be detected.” And besides, dogs have been used in law enforcement for centuries. So what’s the big deal?
The issue is of privacy. Kagan in her concurrence with the majority opinion went beyond the basic physical property argument and instead focused on the dog, which she likened to “super-high-powered binoculars” that can be used to observe the home’s “furthest corners.”
Jardines’ home wasn’t just his property, Kagan wrote, “It was also his most intimate and familiar space.” Police used a “super-sensitive instrument” — in this case, a dog, but it could just as well be a gadget that sees through walls — “to detect things inside that they could not perceive unassisted … objects not in plain view (or plain smell).”
In a world where technology has blurred the lines between public and private, this is the key Fourth Amendment issue for the court going forward. Scalia’s property rights argument is good as far as it goes; the court’s reaffirmation of the home doctrine is welcomed. But our privacy rights are still imperiled without a clear delineation of what constitutes a technological search.
— From the Panama City News Herald
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