Antonin Scalia

The Supreme Court's Latest Drug Dog Ruling Has a Downside

When a man's home is no longer his castle.

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The New Yorker magazine once had a cartoon showing a storefront office with the company name on the window: "None of Your Damn Business Inc." If it were publicly traded, the corporation's stock would be down this morning.

That's because of Tuesday's ruling by the Supreme Court in a case barely noticed amid the frenzy of interest in the arguments on same-sex marriage. The decision looks like a victory for personal privacy. But the beauty may prove to be skin deep.

The case arose after two Miami-Dade police escorted a drug-sniffing dog to Joelis Jardines' front porch, where the dog signaled the presence of narcotics.

They got a warrant to search the house, where they found marijuana plants. Jardines contended the search violated the Fourth Amendment ban on unreasonable searches, and the Florida Supreme Court agreed. By a 5-4 vote, the U.S. Supreme Court upheld that ruling.

So far, so good. Unless they get a judge to issue a search warrant, the police may not tromp through your home looking for cannabis. Nor may they climb a ladder to peek in the window. Using dogs to detect something that can't be detected by normal human senses is the equivalent of a physical search.

That should have been a slam dunk. In 2001, the justices ruled that law enforcement agents are not entitled to use a thermal imaging device to detect heat emissions from a home—which could betray the use of high-wattage lamps used to grow pot. The court said this is no more permissible than it would be to let cops employ a new technology that can see through walls.

"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," wrote Justice Antonin Scalia. You would think special sense-enhancing technology with four legs and a wet nose would likewise trample on privacy.

But for some reason Scalia, who wrote the court's latest opinion as well, shied away from extending his impeccable logic. Instead, he said the dog-sniffing was out of line because it involved trespassing on private property. Once the officers ventured into the area owned by Jardines without his permission, the Fourth Amendment limited what they could do.

The trespass rationale worries Christopher Slobogin, who directs the Criminal Justice Program at Vanderbilt Law School. "If the next case involves a drug-sniffing dog smelling an apartment that abuts a public sidewalk, presumably Scalia would say there is no search because there is no trespass," he says. "But the privacy invasion of the home would still be just as significant." Plenty of urban residences are within a few feet of a sidewalk, making them vulnerable to an accusatory Labrador retriever.

Justice Elena Kagan agreed, in a concurring opinion. In her view, cops violate privacy rights "when they use trained canine assistants to reveal within the confines of the home what they could not otherwise have found there"—even if they do it from a public way.

Why does it matter? Because dogs are the least of the ways in which the government will eventually be able to monitor spaces that once afforded sanctuary to anyone who wants to be left the hell alone. Last year, the court said police needed a warrant to put a GPS tracking device on a man's car because they "physically occupied private property"—the vehicle—"for the purpose of obtaining information."

But the day is nigh when the government can use a tiny drone to follow a car day after day. That would not require a cop to put hands on someone's personal property. But the information gathered would be no different. It's hard to see why one would be barred by the Fourth Amendment and the other would not.

Even Scalia may grasp that. In the GPS case, he acknowledged, "It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy." Still: May be?

A person's right to keep others off his property was once a sturdy protection for privacy. But in an age of intrusive new surveillance tools, it could leave us all with nowhere to hide.

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53 responses to “The Supreme Court's Latest Drug Dog Ruling Has a Downside

  1. The older case law about using technology wasn’t overturned and the newer case expanded the notion of a trespass. Lower courts and defense attorneys could cite either one as controlling precedent.

    1. Indeed. Scalia’s opinion specifically noted that the older case law wasn’t overturned, simply that the trespass made this an even easier case.

  2. Seems to me this is a serious Constitutional issue. Is there any reading of the Constitution that gives us the right to privacy beyond the right to avoid unwarranted searches? I don’t think there is. And there’s certainly nothing that actually defines what a search is. Why draw the line at using natural human senses from public space? With recent advances in technology I think we really need to push for an amendment that clears all this up.

    1. The Constitution doesn’t give us rights, it only outlines the exceptions that the government can use to breech our pre-existing rights.

      “Plain-view” is decent compromise between privacy and police powers. Something in “plain-view” had little effort put forth to keep it private. There is nothing “plain” about using a dog or any other technological enhancement to the senses.

      1. I agree with you wholeheartedly. I’m just saying that if we are worried about the way future SCOTUSes will interpret the Constitution on privacy issues then we should amend the Constitution to make it clear. I mean, what counts as “plain-view” when there’s a drone flying over your house? Does that mean that walls are no longer enough? You now have to hide behind a roof as well?

        I’d like to see an amendment that says any search of private property needs a warrant except in cases of immediate threat to people or property. It’s not like it’s hard to get a warrant these days what with smart phones and all.

        1. Let’s put it this way. I’m a Justice of Peace in New Hampshire. As a JP, I have the power to issue an arrest warrant (See page 65). My legal education? I read that booklet, and I saw an episode of Boston Legal once.

        2. While I also think it would be a good idea, I can’t imagine an amendment being written in a way that evil people can’t argue their way out of to stupid people.

          I try not to be a cynic, but it doesn’t work most days.

          1. I fear that any new amendment written today would be 500 pages long and incomprehensible.

  3. Could one site the liberal argument that if some technology did not exist in 1789 it is forever verboten?

    1. Well, that’s the liberal gun argument. They don’t feel that way about everything.

      1. Consistency requires principles.

        1. The Constitution is a living and evolving document that must be interpreted in a modern light… except when we don’t want it to be.

        2. Next you’ll be claiming that these “principles” be written dow and enshrined in law.

        3. Being a consistent Team member means that you must consistently find that the Constitution allows you to pass whatever legislation your Team wants to pass.

          1. The constitution is a living thing. So if a word or phrase in the constitution changes meaning it only makes sense that we use the new meaning and pretend that’s what the law meant. Mind you we don’t use this approach in linguistics, anthropology, archaeology or any other historical science, but when it comes to politically convenient ploys, it’s the only way to go. Well-regulated militia yay!

  4. Justice is when the fuckers that make up our Praetorian Guard get mauled to death by packs of drug-sniffing dogs turned feral, after the revolution comes.

    1. There is no justice in this world. That’s why people invented religion. So they could feel like those who abuse their power would be punished for their crimes.

      1. Way to be a Debbie Downer.

        1. I know. It’s not fair that sarcasmic just ruined our morning.

          1. At least you can rest assured that I’ll be punished in the afterlife.

            1. I’ll settle for you being punished at the afterparty.

            2. *** pumps fist ***

  5. By a 5-4 vote, the U.S. Supreme Court upheld that ruling.

    5-4 and Scalia voted against the coppers? Who voted to overturn?

    1. Roberts said the dog’s sense of smell was really a tax.

      1. A nasaltax (olfactortax?)

        1. The government was due a flat 15% of the air coming from his property, because they provided him the air in the first place.

          1. That air? You didn’t build that.

            1. The citizen gave up all his rights when he threatened the life of the K9 Officer by not responding to his barking commands and pointing.

    2. Thomas also voted with Scalia, along with Sotomayor, Kagan, and Ginsburg.

      Who voted to overturn?
      Breyer, meaning that he stops being a liberal when being a liberal might actually produce a defendant-friendly outcome.

    3. Scalia votes against the cops all the time in 5-4 cases. Like Melendez-Diaz, for example, where he also wrote the opinion. Or the rest of the Confrontation Clause cases. Or the Kyllo pot-growing heat lamp case referenced in the post. Or requiring a jury to do findings of facts instead of judges to add sentencing.

      1. What about the must show ID Texan in a hat with daughter and picup truck case where Scalia lied his patootie off and Stevens told the truth.

  6. Yet another reason to smear everything with essence of female dog.

    1. Eau de bitch?

      1. Not to be confused with Canine No. 5.

  7. I am a member myself so I can assure you it is not a scam. By the way, they have a 4year anniversy special for Sep 2012 where the first month fee is about $22 plus a few cents. http://zapit.nu/localvideo

  8. By what legitimate authority?
    http://www.thepriceofliberty.org/?page_id=1294

    The question not being asked by most of us is: By what legitimate authority? How does anyone legitimately gain authority to control the lives and choices of other people against their will?

    Did you ever ask a politician, a gun grabber, a public school teacher, a bureaucrat? “By what legitimate authority do you demand, order, enforce, do these things?”

    I have. Most, of course, cite the “constitution” and/or “the rule of law.” I then ask them how those things can confer LEGITIMATE authority. Where does legitimate authority over people’s lives and property originate?

    So far, NONE of them can answer that, and most become extremely angry when questioned at all. Yet I would think that is the most important question we can ask.

    And it’s the most important question we can ask ourselves. Do we own our lives, or have we given our sovereign and natural authority over ourselves to the rulers and politicians?

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  10. You can jam a dog’s sensory abilities by use of aromatherapy. Anise oil affects a dog much like catnip affects cats, and if you surround your house with a fog of it, no dog would be able to detect cannabis or anything else within or through that zone, even if you shoved the cannabis up the dog’s nose.

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  13. I’m no lawyer but it does seem to me that there is a difference from a property rights perspective between passive and active surveillance measures… If you do something in your house that leaks out off of your property, I don’t think you can have an expectation or a demand that no one out there can detect that or do something with it. As much as I hate to say it, a dog sniffing for things from off your property does not seem like a property rights offense to me and thus I think would be allowed in a libertarian-anarchy. If you sunbathe topless on your roof and someone sees that while not on your property, I can’t see hwo that would be a property rights violation and thus illegal in a freed society. Active measures, e.g. shooting x-rays through a house to see what is inside of it, strike me as likely being a different kettle of fish, since arguably you are violating property rights by bombarding that property with x-rays.

    Of course, I’m still against drug laws (I’m a freaking anarchist, so take this all with a grain of salt).

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  15. Criminal activity is no longer private, high-tech devices are geared to pick up every whisper or odor. There are over 2 million inmates in prison and 50 million Americans have been arrested for a felony. Crime is wrong and people must behave or be busted.

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