McGruff Can Keep Sniffing

The Supreme Court has, says the AP, "whether police can have drug dogs sniff outside people's homes without any specific suspicion of illegal activity."

Thanks for nothing, ye robed fools! Here's hoping McGruff and the rest of the nation's crimefighting dogs start sniffing around your houses. Whole thing here.

Earlier this year, Jacob Sullum asked "Who let the dogs in?". He's got more thoughts below, too.

Comments

[a home owner]

Damn! Sure is a shame I accidentally spilled gunpowder all over the yard while walking around my house...

[Rhywun]

How can anyone who is not a complete retard read the 4th amendment and come to the conclusion that this doesn't violate it?! Oh that's right, drugs 're baaad.

[Brian]

Why don't we just go ahead and build houses with transparent walls now? If you've got nothing to hide. . .

[Gary Gunnels]

Rhywun,

Scalia would argue that if dogs were used like this prior to the 4th Amendment coming into existances, then the practice is O.K. It doesn't matter what the individual writer thought on the subject, but what the norm in society was.

[Warren]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Illiterate fucks! When oh when will we ever get a justice on the Supreme Court that can read English?

[Gary Gunnels]

Warren,

Your house isn't your yard. Your yard is part of the curtilage around your home. Where an illegal search starts in that curtilage would depend on where the folks in 1791 thought it started.

[Warren]

Gary,
Only a fucking lawyer could contort their reasoning so far as to conclude that my "curtilage" is neither my house nor one of my effects.

[Gary Gunnels]

Warren,

Your curtilage isn't your house. Your house is your house and the curtilage is the curtilage. Claiming that its part of your house is a bit like claiming that your clothes are part of your body or that the river which feeds into a lake are the same thing. Of course the words we sue to describe things are arbitrary, but its not like the concept of house and curtilage were made up by me; they are rather old concepts as far as I know have been used to differentiate what state acts are permissable or not for quite some time.

And yes, in 1791 there were distinctions between areas of your property that could be searched without a warrant and those that required one.

[Gary Gunnels]

Warren,

Scalia's response to this originalist argument would be to change the fucking amendment.

[Gary Gunnels]

Warren,

That's right, Scalia is an uber-majoritarian rule guy. Except where the majority isn't specifically checked by the Constitution, he has little problem with it flexing its muscle as it chooses.

[Warren]

So Gary, when did you pass the bar?

[Gary Gunnels]

Warren,

I don't have to have passed to bar to have read what Scalia's jurisprudential philosophy. Indeed, since the bar doesn't test such things, its an irrelevant question. I also note that you not asking either Gillespie or Sullum when they passed the bar.

Now, if you want to ask me a pertinent question, right ahead.

[Mr. Nice Guy]

Okay, if I understand this correctly, the drug warriors can run hundreds of dogs randomly through a neighborhood, and if any of them bark outside a house, they can then raid it?

What if one of those dogs take a dump on my front lawn? Is anyone thinking about the grass?

[Gary Gunnels]

BTW, I am not in anyway friendly to this sort of police activity.

[Gary Gunnels]

Warren,

BTW, if you are questioning my scholarly skills, I suggest Shattuck's Justice Scalia's Due Process Methodology... 65 So. Cal. L. Rev 2743, 2776-2778 (1992).

Ralph Rossim (Rossom) also has an article in an anthology title History of American Political Thought or some such. The last name of one of the editors is Frost.

[Warren]

Gary,
My last was an attempt at levity, not a personal attack. But I can see how you could think it was. My apologies.

I still hold that the forth amendment is directly on point, and that it requires some pretty twisted thinking to conclude otherwise. Finding such thinking from the SCOTUS only strengthens my conviction.

[Gary Gunnels]

Warren,

No problems. Just give me a 🙂 next time dude. 🙂

Like I wrote, from one originalist's standpoint it all depends on what was happening in 1791. If government dogs were often allowed to sniff around that portion of the curtilage at the time, then Scalia would basically say its fine. I have Scalia on the mind because I've been reading a lot of his opinions lately and articles and such written on him.

[Mark Denovich]

Damn activist judges.

[Just a Joke]

Gunnels, you are an arrogant, humorless fanatic.

🙂

[Gary Gunnels]

Just a Joke,

Well, at least I'm not a fucking ignorant blowhard like you. You can take that as a joke if you wish.

[Just a Joke]

Chill, man, I was only joking!

[Rhywun]

My dictionary says, "The curtilage of a house is included in the Fourth Amendment prohibition on unreasonable searches and seizures." The linked article says that the guy's garage was "along a sidewalk that visitors must walk to reach the front door." That sounds like part of his curtilage to me (I am assuming in Texas that garages are not directly on the street). Anyway... I wonder about apartments. My 2nd floor apartment is directly on the street. Does anyone know what the maximum range on these dogs' noses is? 🙂

[Gary Gunels]

Oh, so you want a joke, do you?

Knock, knock.

Who's there?

Me, knocking on your thick skull in a vain attempt to knock some sense into you, you pompous pus-brain!

Bashi-bazouk! Wisenheimer! Antidisestablishmentarian!

[ANTICHRIS]

All of you are missing the point.I have a very good friend who is a canine deputy. He has told me laughingly that he can make his dog signal on a jelly doughnut if he so chooses.
Posse comitatus my ass, we are the only country in the world that has declared war upon its own citizenry.

[Gary Gunels]

So, Just a Joke, you can dish it out, but you can't take it, eh?

Just remember who you're messing with here. Even when it comes to jokes, my expertise is greater than yours.

[BigPhil]

I think Mr. NG has it right. The cops can do the search as long as a dog says "there's meth over there!".

If a (human) neighbor points the cops to the meth, the cops have to get a warrant.

I guess the country really is going to the dogs.

[Gary Gunels]

Just a Joke:

Also, I'm several inches longer than you, so I don't need to compensate for my inadequacies with so-called "humor."

[Gary Gunels]

Asshole.

[MP]

I though that Scalia was more in the camp of Original Meaning rather than Original Intent? Anyhow, if you go by the Original Meaning concept discussed in Randy Barnett's book, this decision doesn't pass the smell test.

[fyodor]

Just a Joke and Gary Gunnels, you're BOTH assholes, just so you know, okay?

Oh, 🙂

About Scalia's reasoning, couldn't they have been violating the Fourth Amendment in 1791? Seems to me the relevant issue is what the author meant it to mean and what those who voted to ratify the Amendment understood it to mean. I understand that technically a yard is not a house, but it's hard to imagine that the fourth amendment would allow police to trespass on one's property at will until they got to the structure deemed one's house. GG, if you're finished bickering with an anonymous prankster, can you tell me if Scalia's view on this is the only mainstream view, or if there are competing mainstream views, other than that the constitution just means whatever we decide it means? Thanks!

[the parodist]

Oh God what have I done

[WSDave]

Gary, "Your curtilage isn't your house. Your house is your house and the curtilage is the curtilage."

This brings up an interesting question: If I have a big wall around my house like the stars in Malibu, do I have to let the police in so they can sniff around my yard without a warrent?

[Brian Courts]

How can anyone who is not a complete retard read the 4th amendment and come to the conclusion that this doesn't violate it?!

The same people who can read the 1st Amendment and come to the conclusion that McCain-Feingold doesn't violate it. If they can get around the 1st that easily, getting around the 4th isn't even worthy of their attention - hence their letting the lower court do it. Better to let those aspiring to the Supreme Court get a little more practice gutting the Bill of Rights.

I haven't RTFA yet so if I'm misunderstanding this or if the point was already made, my apologies. Since all the police need is a drug dog to "alert" the practical result is that they can search any house at any time they want. Is there anyone who believes the police cannot make a dog alert if they want it to - or simply lie and say it did? So for all intents and purposes the 4th amendment is dead. If they want to search your house, they can; it's that simple.

PS: I just read ANTICHRIS's post: I have a very good friend who is a canine deputy. He has told me laughingly that he can make his dog signal on a jelly doughnut if he so chooses.

So seems my hunch was correct.

[David]

Brian Courts,

You're right, all they'd to to search any home at any time is to say the dog alerted them. The dog can't testify. Perhaps the courts should stop regarding police as being unimpeachably honest.

[Gary Gunnels]

Between 11:02 AM and now I made no comments.

Rhywhun,

I'm not arguing that the curtilage is so covered.

fyodor,

Note that in Tome v. U.S. Scalia argued that the "views of Alexander Hamilton (a draftsman) bear [no] more authority than the views of Thomas Jefferson (not a draftsman) with regard to the meaning of the Constitution."

He follows a particular kind of originalism in other words. Scalia seeks original meaning from the text itself as well as the culture that the text was created in. An individual author's thoughts aren't particularly meaningful to him.

BTW, this is one of the reasons why he hates it when the Court discusses legislative history. He almost always shits himself when the Court makes a decision about a statute based on legislative history. For example, in 1992 he went apeshit on Justice Souter when he stated in US v. Thompson that Souter's use of legislative history was the "last hope of lost interpretive causes, that St. Jude of the hagiography of statutory construction, legislative history."

Seems to me the relevant issue is what the author meant it to mean and what those who voted to ratify the Amendment understood it to mean.

Scalia would scoff at that assertion.

...but it's hard to imagine that the fourth amendment would allow police to trespass on one's property at will until they got to the structure deemed one's house.

I'll quote Scalia on this very point:

"If a barn was not considered the curtilage of a house in 1791, ... and the Fourth Amendment did not cover it then, unlawful entry ... [is] not [an] unconstitutional search and seizure." (This is from his Holmes Lecture titled The Rule of Law as the Law of Rules.)

Also see his statements in Minnesota v. Dickerson, 508 U.S. 366, 379 which directly mirror the statement immediately supra.

GG, if you're finished bickering with an anonymous prankster...

I never was actually. 🙂

...can you tell me if Scalia's view on this is the only mainstream view...

I think is version of originalism is somewhat unique; maybe Justice Thomas shares it, but I can't say with certainty that is the case because I know little of his jurisprudential views.

...or if there are competing mainstream views, other than that the constitution just means whatever we decide it means?

Sure there are competing views; there is the one you described, where the vision of the authors and specific ratifiers are of paramount importance. That is the sort originalist that I am. But note that this makes one an elitist, as opposed to the uber-majoritarian view Scalia ascribes to.

I am really sorry to overload folks with Scalia-speak.

WSDave,

Fuck if I know. Scalia would say "go back to 1791."

[Isaac Bartram]

Posse comitatus my ass, we are the only country in the world that has declared war upon its own citizenry.

Not entirely. Parliament has just approved a law to end the principle of Double Jeopardy in the UK. Seems "New Labour" has a lot in common with the old fascism.

I don't know if it's gotten Royal Assent yet but maybe Mrs Windsor will veto the first bill since Mrs V. Saxe-Coburg-Gotha and put the govt of Toady Bliar in its place.

[Gary Gunnels]

Isaac Bertram,

Would it apply to all trials?

[Gary Gunels]

I'm not Gary Gunnels; he has two "n"s in his name, and I have only one.

I apologize for any unintentional confusion.

Dorks.

[Gary Gunels (with one "n")]

The parodist: "Oh God what have I done"

Yeah, it has gotten sort of old. Oh, well, a joke worth telling once is worth telling ten times.

But now that the joke has been milked for all it's worth, I will go back to my former online identity: Rick Santorum.

[Rick Santorum]

Hey, get your hands off my curtilage, you pervert!

[Cameron]

Every day I get more depressed about the state of this country. There is no hope for limited government in any of the three branches of government. It is not really surprising that the legislative and executive branches want more power, but the judicial branch seems completely unwilling to stop them. Of course, this has been going on for...decades? Centuries? What's most depressing is that neither the left nor the right wing of mainstream American political thinking gives a shit. At least not consistently. The right doesn't like paying taxes, and the left values speech rights, but neither takes a principled stand on overreaches by the state. Ever since the Republicans found a desirable leader and went back to being conservatives, there's been only a small cadre of remaining radicals. The rest think they're free as long as they can vote.

[fyodor]

Thanks for the clarification Gary. And sorry for confusing you with Gunels! FWIW, based on your disavowal, Gunels used the two-n spelling in his first prank post.

Anyway, Scalia is just one justice. This decision passed with six votes. Why would the others take such a literalist view of "house" implying only the structure in which one sleeps? Does this imply that even if you have "no trespassing" signs, police are immune to any prohibition to stay off one's property? Have police enjoyed similar exceptions already? Gary, or anyone else?

[Gary Gunwales, er, Rick Santor]

"Gunels used the two-n spelling in his first prank post."

I obviously can't spel worth a dam.

I would have been able to avoid the confusion if I had used the full Spanish spelling of my name, with the little squiggly thing over the "n." That would have clearly distinguished me from others with similar-looking names.

[Rick Santorum]

Hey, tell your dogs to stop sniffing around my curtilage!

[fyodor]

Y'know, just occurred to me that the cops' presence in the yard shouldn't be as big an issue as that they're using their presence there to search your house!! Gary or anyone else, tell me what I'm missing here. They're not looking for drugs in the yard, they're in the yard searching your house from outside!! Or outside your car searching your car from outside!! Why isn't the precedent the ruling that forbade helecopters from using heat sensors..... Just occurred to me. I guess the smell is outside and so that's what's considered the evidence?? Technically that could apply to the heat sensors too, I mean something must be available outside in some sense for them to pick it up in their helicoptors, but perhaps I shouldn't be giving them any ideas......

[Isaac Bartram]

Gary Gunnels

I heard it on either the BBC world service or NPR, I can't remember which. It was early in the AM and I was still half asleep.

From what I can remember it applies to all trials, and it's retroactive*. Seems the cops want to reopen a bunch of investigations and use DNA evidence.

It's has apparently been in the works for a while. Part of the package of "reforms" like abandoning unanimity on jury verdicts. It now takes a majority to convict.

*That stood out so I remembered it in particular.

[Jared]

If a cop and dog see something bad while he's making his way to a house to voluntarily talk to people, thats one thing, but this is kinda dumb.

That means if i own a ton of land, with my house sitting on it, the police can just freely walk around it arbitraily searching, and also search the outside of my house. Something doesnt sound right, a bigger deal would be made of this if it was that bad. Or perhaps i'm jsut not cynical enough.

[antichris]

It's so easy to solve, just legalize it and decriminalize it. That way the coppers can have more time to surveil the child molesters and rapists (who get less time than the guy with a small bag). But, I think that would somehow violate their privacy and civil rights.

[Richard]

you can't just legalize drugs, the current illogic of the fourth amendment holds for any crime. You have to reinterpret the 4th amendment to its plain meaning.

[antichris]

whaaduyamean, I reinterpret several times a day
richard.

[David]

Isaac,

That whole bit is scary. Especially considering the number of convictions that were wrong even with a unanimous decision. I wonder how long iot will take before one of our wonderful public servants decides to introduce such legislation here.

My prediction is it will come after a person commits a crime he was previously acquitted of. We'll see story after story about the first trial and how the tragedy could have been prevented if only the prosecutor had been able to come back with more evidence.

[David]

Jared,

You're not cynical enough. That's exactly what the police can do.

[Isaac Bartram]

David

Well, fortunately, "double jeopardy" is enshrined in the Fifth Amendment so that's relatively safe (since amending the COTUS is tougher than just legislating).

Some of the aquittals the British cops want to look into are more than 20 yrs old.

[Isaac Bartram]

My prediction is it will come after a person commits a crime he was previously acquitted of.

I missed the meaning there the first time I read your comment. Excellent point.

[David]

Isaac,

The amendments have a way of being "worked around". look at the topic of this thread. After they're done screwing with the 1st, 2nd, and 4th, someone will hatch a plan to strip the 5th of its meaning as well.

In some ways, both th government and the press already use people "taking the 5th" as a means to convict them in the court of public opinion. "If you have nothing to hide..."

[Stevo Darkly]

"Curtilage"?

I tore the curtilage in my left knee once. Popped off a bit of bone, too. I was playing air guitar. To "Bad to the Bone." Jagermeister was involved. True story.

[Various SCOTUS Justices]

The constitution is a living document after all.

Who can definitively say what "Congress shall make no law" really means?