When was the last time the cops came to your front door with a dog, other than to ask for a donation to the police retirement fund? Me neither. But now that the Supreme Court has, in a 5-4 decision, held that it’s an “unlawful intrusion” into the curtilage in Florida v. Jardines, that’s settled. So dog sniffs are still the gold standard of probable cause, but they’re not allowed on the porch.
At Volokh Conspiracy, Orin Kerr questions where Justice Nino Scalia came up with this supposed pre-Katz trespass theory of 4th Amendment jurisprudence, given his inability to find any mention of it and curiously noting that while it loomed large in the Court’s earlier United States v. Jones decision, he studiously avoided using the word “trespass” in the majority decision. Orin notes:
That happens sometimes. The core of Scalia’s rationale ignores the reasonable expectation of privacy, and instead ties to the physical property.
The apparent restoration of a pre-Katz trespass test in Jones reflects the widely-shared assumption that pre-Katz search doctrine was in fact based on trespass law. Like many Fourth Amendment scholars, I have previously echoed the common wisdom that this is true. But because the point was only of historical interest, I had not looked closely at pre-Katz law to assess its accuracy. Jones makes the history of Fourth Amendment law doctrinally significant, however, meriting a more careful look at the early understandings of “searches.” This essay explores the history of the Fourth Amendment and reaches the surprising conclusion that no trespass test was used in the pre-Katz era. Neither the original understanding nor Supreme Court doctrine equated searches with trespass. Jones purports to revive a test that did not actually exist.
In short, the common wisdom is false.
At Concurring Opinions, Ryan Calo points out some really good questions that are raised by this peculiar approach.
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 “undoubtedly occurred.” United States v. Jones, 565 U.S. ––––, ––––, n. 3 (2012) (slip op., at 6, n. 3). By reason of our decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)—but though Katz may add to the baseline, it does not subtract anything from the Amendment’s protections “when the Government does engage in [a] physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring in the judgment).
That principle renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—- in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.
One can never be too cynical when trying to predict the application, or lack thereof, of a Supreme Court decision to future cases. And therein lies a problem.
My hope for this case was that it would reject the doctrine that citizens possess no reasonable expectation of privacy in contraband. It does not, but nor does Jardines reaffirm that doctrine. Rather, the case holds simply that bringing a dog—and perhaps other instrumentalities of investigation—onto private property without consent requires a warrant or a constitutionally recognized exception. The case still has me puzzled/worried for several reasons:
- What about people who live in apartments or even brownstones that police may approach without trespassing? Because I don’t see the votes for that case. Presumably you would lose at least Justice Thomas, and likely Justice Scalia, which by my count makes it a six-three decision the other way.
- What about technology being developed and tested today that can sense contraband within the home from above or a greater distance? I assume a chemical-sensing drone might get you Justice Scalia again on a Kyllo rationale. But Kyllo involved officers peering into the home, whereas the technology I’m flagging is much more like the dog sniff in Place or the field test in Jacobsen, revealing no more “intimate” detail than the presence or absence of contraband.
- Finally, there is what cases actually hold, and then there is the propositions they will be one day be cited for. Justice Scalia’s opinions in Jones and Jardines are careful to point out that Katz is good law—we just don’t have to reach it because there has been a trespass. But can you not just imagine a future opinion citing these cases for the proposition that the Court is returning to trespass as the lodestar of Fourth Amendment analysis? “As our recent holdings have made clear…” Maybe I’m being too cynical.
What is striking about Jardines is that it’s another 5-4 Fourth Amendment decision, reminding us that four justice of the Supreme Court are too clueless to get it right. It can’t be because Scalia, whose adoration of originalism doesn’t preclude creating doctrine that never existed while pretending otherwise, failed to apply Katz, given that Justice Kagan made clear in her concurrence that she would have ruled the same whether based on the trespass approach (what she calls a “property rubric”) or a Katz approach. So what then is the message of Jardines for the future of search and seizure?
Despite all the scholarly focus and concern, Gideon at A Public Defender raises the implications this decision holds in the trenches:
If this is the takeaway from Jardines, then the decision has huge implications for the police at the front door uninvited. Otherwise, it’s a decision that only a curmudgeon could love: Get your dog off my lawn.
But even using the term trespass mightn’t be such a bad thing: I think it’s just a different way of framing the same issue. When the government has ‘trespassed’ on our private property or our person or our papers, effects and things, then it is a search.
It is, in a sense, the simplest way to define a search.In other words, do we implicitly give permission to police to enter our property for any reason other than our own physical safety? Would it be a workable bright-line rule that any incursion by the police onto one’s property is always a search and thus the onus lies on the State to prove that the search was reasonable or supported by an exception to the warrant requirement?