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Tuesday, October 30, 2012

The Supreme Court Goes to the Dogs

Among the cases scheduled for argument this week are Florida v. Jardines and Florida v. Harris, two criminal cases involving the constitutionality of dog sniffs.  The question in Jardines is whether a dog sniff at the exterior of a home is a "search" within the meaning of the Fourth Amendment.  That question, in turn, depends on whether the occupant of the house has a "reasonable expectation of privacy" against the dog's detection of the odors emanating from the home.

This one isn't hard (at least if we accept precedent): Jardines should lose.  Jardines will analogize dog sniffs to thermal imagers, the use of which was held in United States v. Kyllo to be a search), but the analogy fails because of the limited information dog sniffs reveal.  In past cases, notably United States v. Place (see esp. at pp. 706-07) and Illinois v. Caballes, the Court held that dog sniffs of luggage and cars were not "searches."  Those cases relied on more than the reduced expectation of privacy individuals have in those areas (although the location of the search was noted); rather, the Court argued that the key fact about dog sniffs was that they disclosed only the presence or absence of contraband.  Thermal imagers, by contrast, are capable of providing far more details about the area searched, including the time at which the lady of the house takes her nightly sauna and bath.  At least until now, the Court's position has been that individuals have no reasonable expectation of privacy in the possession of contraband, and so a dog sniff that reveals only that information is not a "search."  The fact that the sniff occurred here at a home, as opposed to a car or at an airport, should make no difference.

Harris is a bit tougher.  This time the dog sniff took place at Harris's truck.  The dog sniffed the outside of the truck, alerting to the presence of contraband.  The resulting search of the interior of the truck's cab turned up materials for manufacturing methamphetamine.  The Florida Supreme Court nevertheless suppressed the evidence, for two reasons.  First, the state court held that the sniff could not justify a search of the interior of a vehicle.  Second, the court held that the dog sniff did not yield probable cause because there was insufficient evidence presented about the dog's training and reliability.

The Florida court's first argument is clearly wrong.  If the police have probable cause they may search the entire vehicle, including the interior and including containers inside the vehicle.  California v. Acevedo.  Whether there was probable cause, however, is a more difficult issue for the government.  If training and experience of human officers are relevant to assessing probable cause (and they are), the same matters should be relevant in assessing whether the dog's alert gives us probable cause to believe that contraband is being concealed.  Whether the police officer is human or canine, we have to assess the likelihood that the officer has correctly inferred criminal activity from his/her/its sensory observations, and the observer's training and experience are valuable indicators of reliability.  Still, I can imagine some hesitancy about turning probable-cause hearings into complicated examinations of police departments' dog-training procedures.

Posted by Michael Dimino on October 30, 2012 at 03:47 PM | Permalink


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"Accepting precedent" does not entail going past it & on that point Prof. Kerr has the better argument.

Caballes did not address the issue of using a dog at someone's door (curtilage) & noted a "dog sniff conducted during a concededly lawful traffic stop" was at issue. A home is not a traffic stop. A police officer is not a Girl Scout cookie seller or a post officer. There is no "implied consent" to have them bring doors to sniff around.

Likewise, as noted, we are not talking someone's garbage, open fields or such. Place involved an airport. The opinion noted "the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion" involved. The home does not involve the same "problems" that were key to weighing reasonableness. And, luggage in an airport and a police outside one's door is not the same "intrusion."

The home provides special privacy rights, down to Stanley v. Georgia treating it differently respecting obscenity. It is a novel question.

Posted by: Joe | Nov 1, 2012 1:09:48 AM

Mike, the issue is the scope of curtilage around the entrance of a residential home, and then the scope of implied consent to invade the curtilage. None of the cases you mention go to that issue. Further, if anything, Katz cuts against your position. The government argued that the phone booth was not protected because anyone could see inside the booth, which seems analogous to your argument that front steps are not protected because anyone can see what happens there. But the Court rejected the government's argument: "But what [Katz] sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. "

Of course, that's not to say that one side is right or wrong. But I don't think there is any Supreme Court precedent that sheds a lot of light on the answer.

Posted by: Orin Kerr | Oct 30, 2012 8:50:03 PM

I don't know of any Supreme Court case that traces these facts exactly, but I don't think it's exactly an open question either. The granddaddy of the what-is-a-search cases, Katz, talks about activities knowingly exposed to public view, and it is certainly common knowledge that the porch is open to the public: mail carriers, delivery personnel, religious missionaries, cookie-selling girl scouts, etc., etc.

Likewise, California v. Greenwood, in holding that police inspection of garbage did not qualify as a search, noted that it was common for members of the public to rummage in other people's garbage. To be sure, the garbage was not on Greenwood's porch, but I think the idea is the same: One does not have a reasonable expectation of privacy in areas that are commonly observed by members of the public, as a front porch is.

And although the context is different, I think United States v. Santana also argues against this being a search. If the threshold of the home was sufficiently "public" so as to obviate the need for an arrest warrant in that case, then I suspect officers would not need a warrant to enter a porch -- an even more public area.

Posted by: Mike Dimino | Oct 30, 2012 7:42:53 PM

There are two questions in Jardines, each focusing on two different possible searches. The first question is whether the entrance of the trained dog and its handler together on to the property up to the front door is a search. The second question is whether the use of the dog at the front door is a search. I agree with you that Caballes appears to answer the second question, but I don't think there is any applicable precedent of the Court that answers the first question.

Posted by: Orin Kerr | Oct 30, 2012 6:50:23 PM

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