The Supremes: Don't Let the Dogs Out

By Seth Mason

While everyone was opining about gay marriage today, the Supreme Court issued a ruling that has far-wider reaching consequences. Today, SCOTUS ruled that law enforcement can't search real property (dwellings and their surroundings) with drug-sniffing dogs without a warrant. This is a huge development. The ruling applied to real property only, but it will inevitably bring about lawsuits from people who have been charged with narcotics possession after warrantless K-9 searches in the field. After all, one's vehicle and one's person are also private property, and the question will eventually arise as to why real property is more constitutionally-protected than other private property. At any rate, Huffpost has the story:

The Supreme Court ruled Tuesday that police cannot bring drug-sniffing police dogs onto a suspect's property to look for evidence without first getting a warrant for a search, a decision which may limit how investigators use dogs' sensitive noses to search out drugs, explosives and other items hidden from human sight, sound and smell.

The high court split 5-4 on the decision to uphold the Florida Supreme Court's ruling throwing out evidence seized in the search of Joelis Jardines' Miami-area house. That search was based on an alert by Franky the drug dog from outside the closed front door.

Justice Antonin Scalia said a person has the Fourth Amendment right to be free from the government's gaze inside their home and in the area surrounding it, which is called the curtilage.

"The police cannot, without a warrant based on probable cause, hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the home," Justice Antonin Scalia said for the majority. "And the officers here had all four of their feet and all four of their companion's, planted firmly on that curtilage – the front porch is the classic example of an area intimately associated with the life of the home."

He was joined in his opinion by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The four justices who dissented were Chief Justice John Roberts, Justice Stephen Breyer, Justice Anthony Kennedy and Justice Samuel Alito.

It's not trespassing when a mail carrier comes on a porch for a brief period, Alito said. And that includes "police officers who wish to gather evidence against an occupant," Alito said. "According to the court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of the respondent's house by his dog, Franky. Where is the authority evidencing such a rule?"

Alito also said that the court's ruling stretches expectations of privacy too far. "A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectable by a dog, cannot be smelled by a human."

It was not the dog that was the problem, Scalia said, "but the behavior that here involved use of the dog."

 Notice that the justices liberals loathe most, Scalia and Thomas, voted in favor of the ruling. In fact, the former issued it. There's something to be said about that in the context of civil liberties.

The above originally appeared at Ecominoes and is reprinted here with permission.

UPDATE:

Ryan Hodinka, attorney, EPJ reader and former pitcher in the St Louis Cardinals farm system, emails:

Just read your post on EPJ about the Supreme Court's most recent dog sniff case. The blog post's author writes, "After all, one's vehicle and one's person are also private property, and the question will eventually arise as to why real property is more constitutionally-protected than other private property."  

The Supreme Court has already answered this question, holding that your home and the "curtilage" (the area immediately surrounding your home, like your porch) do in fact receive greater constitutional protection from warrantless searches than does your car. The rationale for the "automobile exception" is that a car, unlike a home, is movable, which makes it impractical for the cops to get a warrant before searching it if they have probable cause or reasonable suspicion to pull you over in the first instance. 

The Court has even gone so far to hold that a dog sniff of your car doesn't amount to a "search" that triggers the Fourth Amendment. Worse yet, a drug dog's alerting on your car amounts to probable cause, which gives the police the ability to conduct a warrantless search. Therefore, the police can pull you over for not stopping long enough at a stop sign (probable cause for the stop), use a dog to alert on your car (the sniffing isn't a "search"), and then search the car for contraband (the dog alert gave the cop probable cause and there's no warrant requirement to search an automobile).
The bottom line is this: you have very little in the way of constitutional protection when you're in your car. The Supreme Court's Jardine opinion doesn't change that, nor does it suggest that the Court will change that in the future.