Supreme Court Rules Against Warrantless Canine Sniffs at Homes

The Supreme Court has taken a step to keep the 4th Amendment from going to the dogs. It ruled today that police may not use the fruits of a warrantless dog search at the front door to a residence as probable cause for a search warrant. The case is Jardines v. Florida and the opinion, written by Justice Scalia, is here.


Justice Scalia wrote that the use of the dog at the entry to a home was a search, and the officers’ entry was not explicitly or implicitly invited:

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “un- doubtedly occurred.....”

.... Since the officers’ investigation took place in a constitutionally protected area, we turn to the question of whether it was accomplished through an unlicensed physical intrusion. While law enforcement officers need not “shield their eyes” when passing by the home “on public thoroughfares,” ... an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas.

....That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.

In a concurring opinion, Justices Kagan, Ginsburg and Sotomayor wrote that they would have invalidated the search based on both the Fourth Amendment and on privacy grounds. Justice Thomas agreed with Scalia.

Justice Alito dissented, joined by Justices Breyer, Kennedy and Roberts. They believe the use of the dog without a warrant at the entry of a home is not a search, or a trespass and the owner had no reasonable expectation of privacy from the dog sniff.

Background on the case is here.

Just two months ago, in Florida v. Harris, the court upheld a dog sniff challenge on reliability grounds.

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    to sniff a car if there is no warrant?

    No (none / 0) (#6)
    by jbindc on Wed Mar 27, 2013 at 12:09:02 PM EST
    See Illinois v. Cabelles 543 U.S. 405 (2005).

    Official conduct that does not "compromise any legitimate interest in privacy" is not a search subject to the Fourth Amendment. Jacobsen, 466 U.S., at 123. We have held that any interest in possessing contraband cannot be deemed "legitimate," and thus, governmental conduct that only reveals the possession of contraband "compromises no legitimate privacy interest." Ibid. This is because the expectation "that certain facts will not come to the attention of the authorities" is not the same as an interest in "privacy that society is prepared to consider reasonable." Id., at 122 (punctuation omitted). In United States v. Place, 462 U.S. 696 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as "sui generis" because it "discloses only the presence or absence of narcotics, a contraband item." Id., at 707; see also Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). Respondent likewise concedes that "drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband." Brief for Respondent 17. Although respondent argues that the error rates, particularly the existence of false positives, call into question the premise that drug-detection dogs alert only to contraband, the record contains no evidence or findings that support his argument. Moreover, respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk.

        Accordingly, the use of a well-trained narcotics-detection dog-one that "does not expose noncontraband items that otherwise would remain hidden from public view," Place, 462 U.S., at 707-during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.

    Thanks. It would seem to me that (none / 0) (#7)
    by sarcastic unnamed one on Wed Mar 27, 2013 at 12:30:11 PM EST
    if the door to your home is a constitutionally protected area then the door to your car should be too.

    I think (5.00 / 1) (#8)
    by jbindc on Wed Mar 27, 2013 at 12:36:59 PM EST
    Because the Court has always given the home a special reverence, and because your car is moving through public areas, as long as the police have a legitimate reason for pulling you over, then your car is fair game.

    Also, since they noted that you retain no privacy expectations in possessing contraband, you are essentially taking a risk having drugs in your car, since the threshhold for a dog sniff is much lower.


    Speaking of probable cause... (none / 0) (#9)
    by kdog on Wed Mar 27, 2013 at 12:45:29 PM EST
    for a traffic stop, get a load of the probable cause explanation given to my roommate's girlfriend when she got pulled over a week or two ago..."I thought I saw you reaching for your cell phone".  Can you believe that sh*t?

    Lame (5.00 / 1) (#10)
    by jbindc on Wed Mar 27, 2013 at 01:01:59 PM EST
    The criminal defense attorneys (none / 0) (#12)
    by jbindc on Wed Mar 27, 2013 at 02:40:47 PM EST
    Can always correct me on that, but that's the take I got.

    Strange bedfellows: (none / 0) (#1)
    by Mr Natural on Tue Mar 26, 2013 at 07:49:41 PM EST
    SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

    The usual cognitive dissonance avalanche from on high.  The pro-choice litmus test sure isn't giving us much of a view into future votes.  It remains an abysmal metric.

    It boggles my mind that any judge, much less the supposedly more liberal like Breyer or rational like Kennedy, would not consider the positioning of a highly sensitive drug detection system, to wit, a trained dog and handler, at the front door of a house, to be sufficiently non-invasive as to not require a warrant.

    This ruling is beyond confusing (none / 0) (#2)
    by NYShooter on Tue Mar 26, 2013 at 08:49:41 PM EST
    Usually, when the Court hands down a ruling, though I may disagree with it, I understand the logic the prevailing side used in its decision. This one, I don't.

    Let me ask, from a layman's perspective: If the police come to your door, without probable cause, but with a hunch that you`re growing something illegal, and they ask you to submit to a polygraph. Then, let's assume you agree to it.

    Assuming you "failed" the test, would that constitute probable cause, thus giving a judge reason to grant a search warrant? In other words, while a polygraph has been deemed sufficiently inaccurate to be used as evidence in a trial, is the standard different in using it for the purpose of granting a search warrant?

    Susan at LL2.... (none / 0) (#3)
    by unitron on Tue Mar 26, 2013 at 10:19:09 PM EST
    ...had an interesting perspective on the circumstances under which the justices refer to the dog by name or just continue calling it "the dog"


    Having trouble jiving... (none / 0) (#4)
    by kdog on Wed Mar 27, 2013 at 10:43:08 AM EST
    this decision with the somewhat recent awful decision in Kentucky v King...warrantless use of a dog's snout is not probable cause for a warrant, but a cop's snout and ears are sufficient to home invade without a warrant?

    Where's the ryhme and reason?

    You misunderstand the new decision, KDog (none / 0) (#13)
    by Peter G on Wed Mar 27, 2013 at 05:32:00 PM EST
    The court did not hold that "warrantless use of a dog's snout is not probable cause for a warrant."  They held that entry by the cops onto the curtilage of a private home (that is, the private area immediately around the home itself; here, the porch), with a dog, for the purpose of using the dog's snout to figure out what's going on inside the house, and then using the dog for that purpose, was itself already a "search" and therefore required prior probable cause (and, normally, a warrant, too), just to go up onto the porch with the dog.

    I see... (none / 0) (#14)
    by kdog on Thu Mar 28, 2013 at 08:53:08 AM EST
    so (basically) the difference with the Kentucky v King case is the cop who smelled and heard things in Kentucky v King was outside the property line or curtilage?  

    And if the cop had been on the porch without a warrant when he smelled/heard things, as opposed to the sidewalk, the ensuing search would have been illegal?  

    Is that the jist of it?


    Almost (none / 0) (#16)
    by Peter G on Thu Mar 28, 2013 at 01:15:36 PM EST
    The cops in Kentucky v King were already in a place they were constitutionally authorized to be -- that's the touchstone -- when they supposedly smelled the mj smoke from outside the door of the apt adjacent to the one they had come to search. If I remember right, they got there because they were in "hot pursuit" of someone, or something like that. Anyway, they didn't go there for the purpose of seeking out evidence, as in Jardines. The odor emanating from inside gave them probable cause to enter and search the apartment, and the exigency (supposed sounds of disposal of evidence) excused their not taking that prob cause to a magistrate first to get a warrant. I don't actually know if the curtilage concept applies to apartments along a hallway in an apartment building.

    A wealth of information, as always... (none / 0) (#17)
    by kdog on Thu Mar 28, 2013 at 01:21:32 PM EST
    if you ever get tired of practicing, you should teach Peter.  You cut through the legalese like a hot knife through butter.

    Thanks, KDog (none / 0) (#18)
    by Peter G on Thu Mar 28, 2013 at 03:50:47 PM EST
    Not the time to get into the story of my long-ago teaching career, however.

    A question for Peter, Jeralyn, etc. (none / 0) (#15)
    by jbindc on Thu Mar 28, 2013 at 01:07:05 PM EST
    In this case, the Jardines were within the confines of their home, and that's where the alleged illegal activity was taking place.  The police dog was within the curtilage of the house (although outside the house) so that's why the Court considered this a Fourth Amendment violation.

    What happens if for example, someone is smoking weed in their fenced-in backyard, and a police officer with a drug-sniffing dog is on the sidewalk (i.e., not within the curtilage of the house)? Is a warrant still required here since the alleged illegal activity is taking place within the curtilage?

    How about if the homeowner is standing in their driveway or front lawn and the officer and dog are still standing on the sidewalk?