Antonin Scalia

Scalia Seems to Agree That Drug-Sniffing Dogs on Your Doorstep Are Trespassing

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Today the Supreme Court heard oral arguments in Florida v. Jardines, which raises the question of whether using a trained dog to sniff for marijuana at the doorstep of a house constitutes a search that must be justified by probable cause. The case involves Joelis Jardines, who was arrested for growing marijuana after Miami-Dade police brought Franky, a drug-sniffing Labrador, to his home based on an anonymous tip. In previous cases, the Court has said probable cause is not necessary for canine inspections of luggage at an airport or the exterior of a car during a traffic stop, on the theory that "a 'sniff test' by a well-trained narcotics detection dog" is minimally invasive, revealing nothing but the presence or absence of contraband. But Fourth Amendment protections are at their strongest in the home and the area immediately surrounding it (the "curtilage"), and this morning Jardines' lawyer, Howard Blumberg, argued that "when a police officer goes up to the front door with a narcotics detection dog" he has "physically trespassed, because there is no consent to do that, onto a constitutionally protected area, the curtilage of the home, and performed a search." 

That argument seemed to be crafted with Antonin Scalia in mind. In U.S. v. Jones, the January decision in which the Court ruled that tracking a suspect's car by attaching a GPS device to it amounts to a "search" under the Fourth Amendment, Scalia's majority opinion emphasized the physical trespass required to install the device. "If you…follow the test set forth in Jones and apply it to what happened here," Blumberg said, "it is a trespass." Scalia signaled that he was receptive to this approach even before Blumberg got up to speak, telling Gregory Garre, the lawyer representing Florida:

Police are entitled to use binoculars to look into [a] house if the residents leave the blinds open….[but] they're not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point….Why isn't it the same thing with the dog?…

It seems to me crucial that this officer went onto the portion of the house…as to which there is privacy and used a means of discerning what was in the house that should not have been available in that space….

Police officers can come there to knock on the door…[but] when the purpose of the officer's going there is to conduct a search, it's not permitted…

He's going there to search, and he shouldn't be on the curtilage to search.

Scalia also wrote the majority opinion in Kyllo v. U.S., the 2001 case in which the Court held that using a thermal imager to measure the heat radiating from a home—evidence of high-intensity lamps used to grow marijuana—requires a warrant. Justice Ruth Bader Ginsburg read to Garre a passage from that decision, which she suggested applies to drug-sniffing dogs as well:

We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.

Garre argued that "Franky's nose is not technology," since he is merely "availing himself of God-given senses." But in its natural state, Franky's nose does not tell police when molecules of certain chemicals are floating through the air; that requires human intervention aimed at turning a descendent of wolves into a law enforcement tool. It would be odd if the constitutionality of using a smell detection tool hinged on whether it was made of metal or flesh and blood. The main point, it seems to me, is that Franky, like a thermal imager, enables police to find evidence they could not detect with their own unaided senses. (There is a dispute as to whether Jardines' growing operation was "in plain smell," as Assistant U.S. Solicitor General Nicole Saharsky, arguing for Florida's side, put it. One officer claimed, after the dog alerted to Jardines' door, that he could smell the plants too, but the dog's handler said he smelled nothing.)

Several justices were interested in how long it took Franky to zero in on the smell of marijuana, since people generally do not expect unannounced visitors to walk up the path to their door and, instead of knocking, poke around, with or without the assistance of a specially trained animal, looking (or smelling) for evidence of a crime. The two sides eventually agreed that the whole visit took five to 10 minutes, with the dog's sniffing and "bracketing" taking a minute or two. Justice Stephen Breyer highlighted the unusual nature of this visit:

Would a homeowner resent someone coming with a large animal sitting in front of his front step on his property and sitting there sniffing for 5 to 15 minutes?…

You do have an expectation of people coming to your door, perhaps even with animals, perhaps even with binoculars, but not looking into the house, not looking into the house from the front step with the binoculars.

Now, why is that unconstitutional? Because it's very unusual that someone would do that, and the homeowner would resent it.

Ginsburg noted that if the Court sides with Florida and the Obama administration, police could bring drug-sniffing dogs to "any home anywhere" at will. Police "could take a dog and go [up to] every house on the street, every apartment in the building." Garre and Saharsky agreed, saying the only restraints would be limited police resources and "the potential for community hostility" (as Saharsky put it).

Should the Court agree that the Constitution allows such olfactory dragnets, there remains one other viable safeguard. Garre conceded that if Jardines had posted a "No Dogs Allowed" sign, bringing Franky to his door would have been a Fourth Amendment violation. But how long will it take for police to start claiming that such signs are evidence of drug activity?

The full transcript of the oral arguments is here (PDF).

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  1. This is wear I make a joke about dog noses being a tax and someone getting mad because this isn’t a case about congressional powers.

    You must be able to confront your accuser. Bad accuser! Bad!

    1. Is this wear you make the joke?

      1. Ha! Caught in my trap of misdirection. I knew I would get someone.

        1. Once again, I use your own tactics against you, old. Friend. Not quite so clever as we were led to believe!

          1. Talking to you makes hours seem like days.

  2. Scalia is a mixed bag. i could definitely see him going against the state authoritahs here, but he;s difficult to predict. he tends to be very good on speech, unless you are a minor, but when it comes to search stuff pursuant to state power, — he’s mixed. thomas tends to be a little better.

    1. Iirc he sided against The Alliance when they wanted to use infrared sensors to look for grow ops without a warrant

  3. Just in case Dunphy didn’t get the message last night that the “air molecules” justification is a load of shit, allow me to direct him to go review that thread and advise him to suck a fat one.

    1. Speak of the devil.

    2. as a matter of scientific reality, it is not a load of shit

      dogs can’t sniff what’s inside an object. they sniff particles in the air OUTSIDE the object. that’s how olfactory organs work.

      it’s not debatable. open up a biology textbook.

      if a dog smells something, it means that it is detecting particles in the air that are subsequently inhaled into its sense organ (in this case, its nose)

      so, anytime a dog smells something like marijuana “inside a car”, it is in fact smelling particles OUTSIDE the car.

      the inference is that the particles CAME FROM inside the car, but it can’t smell what is inside the car UNLESS it is inside the car

      1. That is certainly true. But it also means that one can never be certain that the thing smelled is inside the car. Of course for probable cause, you don’t need that level of certainty.

        The big problem I have with drug dogs (besides the prohibition which makes them necessary at all) is that I am not at all confident that the handlers don’t sometimes just make shit up or somehow signal the dog to alert. I’m sure dogs are capable of smelling small traces of drugs. But I think that they are far more interested in pleasing their masters.

        1. i totally agree. that’s tangential to my point, though

        2. I am not at all somewhat confident that the handlers don’t sometimes usually just make shit up or somehow signal the dog to alert.

      2. Besides the point of the actual lack of reliability of dogs…

        Your purely scientific justification is horseshit because “sniffing molecules in the air outside of personal property” contradicts the way the dog is actually being used to make determinations about what is possibly INSIDE the personal property.

        The dog is being used by the officer to find out something that he is not capable of doing with his own human senses, which makes this a search in the same way that using infra red cameras is a search.

        Do infra red cameras not technically detect only heat that has already left personal property?

        1. i am not defending drug sniffing dogs. you appear to me to think i do. if not, i apologize

          i am making a point about the reality of a sniff as to what it actually is

          1. And that point is not a constitutionally sound one when compared with the similar dynamics of infra red cameras.

      3. so, anytime a dog smells something like marijuana “inside a car”, it is in fact smelling particles OUTSIDE the car.

        Which is fine, but begs two questions:

        (1) How do we know that a dog that alerts smelled anything at all, as opposed to responding to cues from his handler?

        (2) Are molecules floating through the air outside of a car or building really enough to trigger probably cause, all by themselves? Is that really a “substantial chance” or “fair probability” or whatever the test is?

        1. Let’s separate this from the drug war for a second, because most of us here are emotional about it on one side or the other.

          If a cop smells a rotting stench coming from the trunk of a car during a traffic stop, does he have PC to suspect there’s a dead body in there?

          1. No. Lots of scumbags have smelly cars.

  4. Sounds like a pretty good deal to me man. Wow.
    http://www.io-anon.tk

  5. I still say drug dogs should never be considered probably cause for a search until each dog used has been thoroughly tested by an uninterested third party in a scientific way to meet standards determined beforehand. Without that it is just voodoo bullshit, even if you assume that the handlers wouldn’t make shit up.

    Or even better, stop trying to catch people doing things that shouldn’t be crimes.

  6. Wonder if this goes to the SC as well…

    Federal Judge says police are allowed to install cameras on private property without warrant.

    http://arstechnica.com/tech-po…..t-warrant/

    1. Installing cameras on private property without the property owner’s permission is the same thing as installing a GPS device on a vehicle without the vehicle owner’s permission.

    2. I think the footnote is interesting: “The government also briefly argues that there was no Fourth Amendment search because neither Mendoza nor Magana owned or leased the Property.

      Do you have the right to be secure in your personal effects if those effects are illegally on someone else’s property?

      1. Yeah, this is kind of interesting. It seems that the owner of the field has a potential cause of action against the cops, not the defendant.

        In most 4th amendment cases the party whose property is searched is the defendant, so this isn’t a question.

    3. The property in question was heavily wooded, with a locked gate and “no trespassing” signs to notify strangers that they were unwelcome. But the judges found that this did not establish the “reasonable expectation of privacy” required for Fourth Amendment protection. In their view, such a rule would mean that (in the words of a key 1984 Supreme Court precedent) “police officers would have to guess before every search whether landowners had erected fences sufficiently high, posted a sufficient number of warning signs, or located contraband in an area sufficiently secluded to establish a right of privacy.”

      Strange argument, considering “civilians” who fail to “guess” correctly as to whether an area is private property are subject to prosecution for trespassing.

      1. Cops like to threaten to arrest people for trespassing. They can’t unless the person has already been warned by the property owner (or other custodian such as renter) not to trespass, and the owner or custodian is willing to appear for charges.

  7. Mr. Sullum,

    ?Franky’s nose does NOT tell police, etc.

    Cordially,

    NeonCat, evil unpaid editor

  8. Looks like I may not have given Scalia enough credit yesterday. Good for him!

    Bad for me.

    1. Wait for the decision, R-M, before you get all gushy.

  9. It shouldn’t be so difficult. Let’s just say the cops are only allowed to do things that everybody else is allowed to do. Coming on my property and letting your dog sniff around? Sorry, I can’t do that, and you can’t either. Putting a camera on my property to spy on me? Same deal.

    You only get to bend these rules if you already have reason to believe it’s necessary to do so. You bring in the dog in order to confirm the presence of what you already suspect. You install the camera in order to confirm the activity you already suspect. These things are not tools for generating new criminals; that’s why you need to get a warrant for their use. Because law enforcement is not a fishing expedition in a country that can call itself free.

  10. One officer claimed, after the dog alerted to Jardines’ door, that he could smell the plants too, but the dog’s handler said he smelled nothing.

    If the officers could smell the plants, they don’t need the dog, so that’s irrelevant to the case at hand.

  11. Fuck dogs.

    1. Beastiality is illegal in 28 states.

      http://wiki.answers.com/Q/Is_B…..ted_States

      However, a menacing police wolf invading my property – open fire!!

      1. I’ve just learned that beastiality is not explicitly illegal in my state, though I’m sure most prosecutors would succeed with an animal cruelty charge, by the way the law is written.

        And yet, they damn well made sure to write a law so that hurting a police dog or horse is doubleplusbad.

  12. The dog is irrelevant. Walking up to the door is irrelevant.

    Simply put, it’s an illegitimate search if the police merely stand on the sidewalk and try to smell drugs themselves. Without probable cause, any attempt to determine what is inside the house from outside the house is an unreasonable search.

    Here’s hoping the decision reads like this, so we don’t have to hear these stupid police rationalizations any more.

    1. So if the police are driving down the street, and gunshots and screams are heard from within a house, they can’t stop and listen to what’s going on inside the house? After all, their PC comes from “determining what’s going on inside the house from outside the house”.

      1. Of course they can. That is probable cause to enter the house.

        As it would be if they accidentally smelled drugs from the sidewalk.

        It’s the difference between walking a beat and a fishing expedition. Your example is the former. The case at hand here is clearly the latter.

        1. “Accidentally” smelling drugs is pushing it.

          1. By “accidentally” I mean that they are walking down the sidewalk and obviously smell something illegal without trying to. It isn’t license to loiter in front of any or every house on the street hoping to have an “accident”.

            1. Oh come on. Loitering in the hopes of accidentally stumbling upon a crime in progress is the whole point of police patrols.

              I think some of us are letting our opposition to vice laws cloud our reasoning, and lead us to a hyper-expansive view of the 4th amendment that would make police work regarding victimful crimes well-nigh impossible.

              1. Really? I thought the point of police patrols was (a) to demonstrate a presence that deters crime and (b) to show a friendliness and approachability that unites neighborhoods against crime.

                I guess I swallowed that whole “get out of the car” propaganda too much. Endangering themselves isn’t for the public’s benefit: it’s so they can smell marijuana outside suspicious houses!

                1. Cops are not deterring crime if potential criminals aren’t plausibly worried about cops accidentally stumbling on their crimes in progress.

                  And as far as the law is concerned, cracking down on drug use IS for the public’s benefit. I know you disagree with the law on this, as do I, but that’s the way it is for now. Trying to blunt the WoD by using an overbroad interpretation of the 4th that hampers enforcement of good laws is both easily circumvented and counterproductive.

        2. OK, that wasn’t quite the right example. What if they hear raised voices while walking by on the sidewalk? Can they stop to listen to determine if it sounds like a violent confrontation, or must they just keep walking, since loud voices alone aren’t PC?

          Plus, this would be a very difficult line to draw in practice. Presumably if they’re on the curtelage or in the house when they obtain PC, the police have to have a very good explanation for why they were there. They wouldn’t have to have an explanation for why they were on the sidewalk, so it’s going to hang on drawing a line between happening to hear/see/smell vs. trying to hear/see/smell.

          1. I would say they can keep listening if there is reasonable suspicion that the sounds they hear indicate something illegal.

            It seems a clear line to me. “Why were you on the sidewalk?” “We were walking by.” “Were you casing the house?” “No.” “Were you casing the neighborhood?” “No.” “Are there any records that will contradict that position?” “No.”

            It’s a much clearer line than the line between the technologies of a dog’s nose that needs to be on a porch and an electronic sniffer that can be used from a car in the street.

            1. If our supposition is that cops will lie to justify an unjustified search, that line is totally irrelevant. It’s hard to imagine what records would contradict a statement that they just happened to be walking by.

              Plus, alerts from electronic sniffers would be much harder to fake than those from canid sniffers.

              1. It’s hard to imagine what records would contradict a statement that they just happened to be walking by.

                Miami-Dade police brought Franky, a drug-sniffing Labrador, to his home based on an anonymous tip.

                Plus, alerts from electronic sniffers would be much harder to fake than those from canid sniffers.

                And alerts from heat cameras are harder to fake than those from reading tea leaves. But they’re still illegal.

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