Some Thoughts On Florida v. Jardines
Amidst all of the discussion of gay marriage at One First Street NW today, you may have missed that the Supreme Court decided Florida v. Jardines. In a five-four opinion by Justice Scalia, the Court held that bringing a police dog within the curtilage (in this case, the front porch) of the home to sniff for drugs constitutes a search for purposes of the Fourth Amendment. As Orin Kerr predicted, the opinion turned on the lack of implied consent to approach with a dog, which converted the detectives’ action into a trespass. Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Scalia’s opinion. Justice Alito wrote for the dissent, joined by Justices Kennedy, Breyer, and the Chief Justice. Justice Kagan, joined by Justices Ginsburg and Sotomayor, wrote separately to note that they “could just as happily have decided [the case] by looking to Jardines’ privacy interests.”
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.
I look forward to the thoughts of others.