The Supreme Court will soon consider whether bringing a drug dog to the front door of a residence to create a basis to claim probable cause in order to obtain a search warrant. The case, Florida v. Jardines, challenges the decision of a divided Florida Supreme Court’s rejection of the authority to bring a dog to the door of a residence without cause to begin with, the act itself constituting a search. The question is whether the Supreme will apply Illinois v. Caballes, holding that a dog sniff of a car is not a search, to a home.
While the case is chock full of interesting and important 4th Amendment issues, one of the more interesting and provocative positions taken comes from Jim Harper and Ilya Shapiro, who filed an Amicus brief on behalf of the Cato Institute. Their argument is summed up:
This case offers the Court an opportunity to place the Fourth Amendment on solid jurisprudential footings. Current Fourth Amendment doctrine has failed to produce rules that are administrable and that protect privacy over time. In particular, this Court’s use of proxies such as having a “reasonable expectation of privacy” to locate Fourth Amendment interests has failed to produce a workable rule, and it has eroded privacy. The Caballes Court used a corollary from reasonable expectations” analysis that threatens to erode privacy protections even further.
Reasoning backward from “expectations” requires courts to engage in impossible surmise about privacy,neglecting the Fourth Amendment’s protection of a constitutional right. This Court should return to plain meanings of Fourth Amendment terms such as “search,” and to precedents that spring from the Fourth Amendment’s terms.
A “search” occurs when government agents seek out that which is otherwise concealed from view, the opposite condition from what pertains when something is in “plain view.” People maintain “privacy” by keeping things out of others’ view, exercising control over personal information using physics and law.This Court’s cases give Fourth Amendment backing to physical and legal arrangements that control information appurtenant to persons, houses, papers, and effects. The Court in this case should make that explicit while finding that government agents’ use of a drug dog to sniff at Joelis Jardines’s front door was a Fourth Amendment search that required probable cause and a warrant.
To put it another way, the argument is to put an end to the Katz reasonable expectation of privacy that has either served well or disastrously, as the case may be. In its place, it calls for a return to a textualist view of the Fourth Amendment, where words like “search” are given their “plain meaning.”
The immediate problem, as was earlier pointed out by Orin Kerr in his discussion of Jardines, is that the law has long taken no issue with police using such sophisticated sense-enhancing devices as a flashlight to see what otherwise couldn’t be seen. If something is concealed under the veil of darkness, is it a search to shine a light on it? Using the plain meaning approach, it appears that it would be, and therefore a warrant would be required for police to use a flashlight to see what they otherwise could not see.
On the other hand, the reasonable expectation of privacy test has not only failed to maintain much privacy, but has proven particularly unworkable as applied to privacy in the digital age, where the third party doctrine renders pretty much everything outside the scope of the Fourth Amendment. It didn’t necessarily have to go that way, but for the court’s adoption of the reasonable expectation of computer geeks who understand and appreciate that everything sent over the internet ends up on somebody’s server somewhere. Apparently, Mom and Pop Kettle’s expectation that their emails aren’t being read in Bangalore isn’t the bar for reasonableness in Washington.
This isn’t the first call to do away with the Katz test, Lawprof Dan Solove argued that Katz was dead, and instead favored Fourth Amendment Pragmatism in its place. Whether this advances the cause is hard to say, since I’ve never understood what Dan was talking about.
Putting aside the issues surrounding the incredibly flawed doggie myth per se, the question of whether walking the dog to your front door is a search presents enormously vexing problems. There doesn’t seem to be a doctrine that applies well to the wide variety of ploys used to circumvent the warrant requirement, both in the physical world or the digital world.
Even if we were to develop a completely separate rule for virtual application (despite those who believe that we ought to apply developed law, meaning the million exceptions that swallow the rule, to the virtual world by analogy so that the party who comes up with the cutest analogy wins the search issue), the reasonable expectation of privacy test has led us to the plethora of exceptions that have swallowed up the warrant clause. In other words, as long as the physical world exists, it has to be dealt with, and the Cato amicus argues that the time has come to give up trying to craft an extra-constitutional test and simply return to the text of the Fourth Amendment.
In a way, the Cato argument seems unbearably simplistic. Could it really be that simple that the Constitution protects that which is “otherwise concealed from view”? It would certainly put a crimp in law enforcement’s authority to search for evidence. Would that be so bad?
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This theory at least somewhat follows from United States v. Jones, the GPS case. There, the majority expressly rejected Katz as the “exclusive” test for Fourth Amendment violations and reasoned that a search occurred because “[t]he Government physically occupied private property for the purpose of obtaining information.”
In Jardines, the government certainly physically occupied private property for the purpose of obtaining information.
And while law enforcement officers may invade the curtilage of a home so as to conduct a knock-and-talk investigation, Florida in the Jardines case went way beyond the ordinary scope of a knock and talk (“restrict[ing] their movements to places visitors could be expected to go (e.g., walkways, driveways, porches)”) and, as far as I can tell, neither knocked nor talked.
Jones is an outlier decision, inconsistent with any previously known doctrine (Katz plus?), and quite a ways from Kentucky v. King, which suggests that there should be no issue with bringing a drug dog to the front door. So do we bet on King, Jones or something else? And is there a doctrine that can make sense of it all?
SJ,
Probably no doctrine to fix the entire mess that is the 4th amendment jurisprudence. However, the Court could draw lines that does not uphold this particular practice, and I don’t think it will be based on Jones(as you noted in a previous response, although I would be in favor of just about any method that gets to the conclusion that this practice is unconstitutional).
The court could adopt (unlikely) the CATO position and not run afoul of the problem you raised in your post – sensory enhancement. An easy distinction: drug dogs do not enhance senses at all … no drug dog improves the cop’s sense of smell, whereas a flashlight does actually improve the cop’s existing sense of sight. So, the court would not have to get into that mess at all. Perhaps the court could use Kyllo in that regard.
However, no matter what, the CATO position would necessarily require the court to overrule the whole “a drug dog sniff is not a search” BS. Unless the court is prepared to finally man-up and state that the use of a drug dog constitutes a search, that position will fail. And I highly doubt that will happen, lest the court do away with what it must view as an effective weapon against the illegal drug trade.
That’s why the best method would be to simply continue the Carroll line of cases and state that cars are simply different than homes (mobility, licensing, open to the public, etc.)
You have an reasonable expectation of privacy that a drug dog will not come to your home, period (Katz). However, that is not so reasonable an expectation on the road, where you must be registered, know you can be pulled over for a thousand traffic violations and that some troopers have dogs. That would be the easiest way to say this is going too far. Homes are simply different than cars.
Relying on the autmobile exception might not be the worst thing, except for two problems. First, that it’s been extended well beyond the Carroll rationale, to the point where a car without wheels or an engine is still a car, and second, with Whren and pretext stops, it’s carte blanche to seize.
So relianace on Carroll might be good for homes, but bad for cars (and living things).
I’m not getting my hopes up. The Roberts court’s single greatest concern in every Fourth Amendment case I’ve read from them is to prevent a situation where “the criminal is to go free because the constable has blundered” (U.S. v. Herring), or to avoid interfering with “legitimate law enforcement strategies,” (Kentucky v. King). And in light of the fact that we’ve been told by the Rehnquist Court that a drug sniffing dog “does not implicate legitimate privacy interests” (Illinois v. Caballes), I’m going to go ahead and assume that this one ends with more nonsense about infallible canines, and yet another failure to qualify the term “well-trained” as it applies to a narcotics dog, which they failed to do in Caballes.
Heck, if we’re lucky, they might even treat us to some of that good ole’ fashion “objective reasonableness” analysis, despite the fact that they’ve yet to decide a single case in which they explain by what principle of law an officer’s subjective belief becomes objectively reasonable, other than by judicial prestidigitation.
Maybe this is not legally relevant, but what about the Clever Hans effect? Doesn’t research indicate that sniffer dogs respond to the suspicions of their handlers?
Absolutely, and this is well documented and beyond question (everywhere but in court).