Here is the submission I made to the ABA's Citizen Amicus Project.
The question presented in Florida v. Jardines is whether a dog
sniff at the front door of a suspected grow house by a trained narcotics
detection dog is a Fourth Amendment search requiring probable cause. Because Franky’s
sniff was a sense-enhancing technology not in public use, and because the
police trespassed to obtain information, the dog sniff should be held to be a
search.
The Fourth Amendment provides in part that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated…”[1]
Modern Fourth Amendment jurisprudence is derived from
Justice Harlan’s concurrence in Katz v.
United States.[2]
There, he articulated a two part test that would later be adopted by the Court
in Smith v. Maryland.[3]
The Fourth Amendment is implicated when a person has an actual (subjective)
expectation of privacy, and when that expectation is (objectively) reasonable
to society.[4]
More recently, the Court has supplemented the Harlan test
with a property –focused approach that recognizes the connection between
private property and a physical intrusion that would constitute common law
trespass. Two recent cases that provide illumination on this issue are Kyllo v. United States[5]
and United States v. Jones.[6]
In Kyllo, the
Court addressed the role of technologically sophisticated surveillance as it
relates to the Fourth Amendment. The police used a thermal imaging device to
identify heat emanating from the home of a suspected grow house. Despite the
fact that this device was used from a public street, the Court concluded that
“[w]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.”[7]
The common law trespassory test was revived in Jones. There, the police placed a GPS
tracking device on Jones’ vehicle to obtain his vehicle location over the
course of 28 days. Writing for the Court, Justice Scalia found that in placing
the GPS device, “[t]he Government physically
occupied private property for the purpose of obtaining information.”[8] This physical intrusion
constituted a “search” and thus implicated the Fourth Amendment.[9]
The dog sniff in Jardines has been compared with Illinois
v. Caballes[10],
where a dog sniff during a traffic stop was found to not violate the Fourth
Amendment. Caballes, in turn, relied
on United States v. Place[11] and City of Indianapolis v. Edmond.[12] In Place, the Court found that a dog sniff of luggage did not
constitute a search because it did not require opening the luggage or exposing
items that would otherwise remain hidden from view.[13] Similarly, in Edmond the Court held that a dog walk
around a car was not intrusive enough to be considered a search.[14]
The obvious and common nexus found in Caballes, Place, and Edmonds is
that the alleged searches were done away from the home. Although not at all consistent
in their application[15], the Court has
undoubtedly indicated that the expectation of privacy in vehicles is lessened
as compared to the home. Similarly, the privacy of the luggage of a traveler at
an airport lessened due to the Government’s interest in protecting air
travelers.
The facts in Jardines bring us close to the home, but not quite through the
“firm line at the entrance."[16] Rather, here the police
conducted the dog sniff from Joelis Jardines’ front porch. Based on the two
approaches cited above, two questions arise. First, was the use of the dog
sniff consistent with the sense-enhancing technology employed by the police in Kyllo; and second, did the dog sniff
constitute a physical trespass upon Jardines’ front porch? Regardless of which
approach the Court decides to take, the answer to both questions is most
assuredly yes.
Using the Katz approach articulated by Harlan and refined in Kyllo, a trained drug sniff dog is not a
device in general public use. But to suggest that these dogs only alert to
contraband, and thus could never implicate Fourth Amendment protections
(because, presumably, a person has no expectation of privacy in contraband) is
a circular argument that did not convince (at least) three justices during oral arguments.
Moreover, the sober evidence discussed by a number of Fourth Amendment scholars[17] indicates agreement with
Justice Souter’s proclamation in Caballes:
“ The infallible dog… is a creature of legal fiction.”[18]
Because the alleged search never crossed
the threshold of Joelis Jardines’ home, the common law trespassory test
requires us to address the issue of curtilage. The Court articulated a four
factor test to define curtilage in United
States v. Dunn.[19] However, the front porch
of a home generally regarded as exempt from this protection because homeowners
impliedly consent for visitors to come to the door to knock. Additionally, the
police “knock and talk” tactic is a common procedure that does not appear to
have received much recent scrutiny (notwithstanding the Court’s prior holding
in Johnson v. United States[20]). But these are limited
purposes.
Even presuming the legitimacy of the
owner’s implied consent and the validity of the “knock and talk,” there comes a
time when the limited purpose ends and reasonableness must prevail. A
homeowner’s implied consent to visitors on the front porch only lasts until the
homeowner has the opportunity to invite the visitor in, or on the other hand,
turn the visitor away. Similarly, the police officer’s presence on the front
porch can only said to be legitimate until an otherwise benign purpose
disappeared. A police officer stationed on the front porch for several minutes
(without knocking, to be clear), with Franky sniffing at the door and a
supporting cast of law enforcement officials in the immediate vicinity, cannot
said to have been benign.
[1] U.S. Const. amend. IV.
[2] 389 U.S. 347, 360 (Harlan, J., concurring).
[7] Kyllo,
533 U.S. at 32.
[8] Jones,
132 S. Ct. at 949.
[13] Place,
462 U.S. at 707.
[14] Edmond,
531 U.S. at 40.
[15] See
generally New York v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S. 615 (2004); and Arizona
v. Gant, 556 U.S. 332 (2009).
[16] Payton
v. New York, 455 U.S. 573, 590.
[17] See
Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, Florida v. Jardines, No. 11-564.
[18] Caballes,
543 U.S. at 411 (Souter, J., dissenting).
