Last week the Supreme Court of the United States (SCOTUS) ruled that law enforcement officers could not use a drug sniffing dog to randomly walk down streets and sniff out illegal drugs without a valid warrant. The SCOTUS ruling in Florida v. Jardine , found at the following link: http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf , upheld a Florida State Supreme Court ruling in a case that suppressed the evidence police used to charge Mr. Jardine.
In this case, a police officer, suspecting Mr. Jardine of being involved in illegal drug production and distribution, approached the front door of Mr. Jardine’s home for the purported excuse of having an informal discussion. Accompanying the officer on his walk to the front porch was the officer’s police dog, trained in drug detection by odor. Even before the officer knocked on the door, the police dog alerted to the smell of drugs. Without knocking the officer left the porch and returned with a valid search warrant for Mr. Jardine’s house based on the evidence of the police dog alert.
At trial in state court the defense argued that the police dog on the porch was an illegal search as a valid search warrant was not issued at the time. The trial court agreed and the state appealed. The battle raged through the state courts and finally was granted certiorari (I discussed this term last week) by SCOTUS. In a 5-4 close decision, the majority ruled that a person has a reasonable right to expect privacy, especially in and directly around the “home”. Here the term used is the “curtilage”, in other words that space around the home which a reasonable person would assume to be private.
Curtilage has hundreds of cases delineating what is and isn’t private. Current rulings allow police to fly over a home at a reasonable height and look into the yard for illegal activity but they can’t climb over a wall to see the same yard. Policed are allowed to look in open windows and observe evidence but they can’t use thermal imaging devices to see through walls without a warrant.
The privacy expectations of the curtilage concept even extend beyond the home. If you are in a hotel room the police need a warrant to search it just like your home or apartment. The same goes for your office space. Even automobiles, never envisioned by the founding fathers who wrote the Constitution, are afforded some privacy rights.
Perhaps the most interesting thing about this case, and the administrative law case I discussed last week, is the way the SCOTUS Justices mix and match on different cases, take this case for example. Conservative Justices Scalia and Thomas agreed with liberal Justices Keegan and Sotomayor that the dog’s search violated the constitutional protections against unreasonable search and seizure. The dissenting opinion was written by conservative Justice Alito with moderate Justice Kennedy and moderate Chief Justice Roberts agreeing and liberal Justice Breyer also joining. This juxtaposition comes on the heels of last week’s Brown v. EPA where nearly all of the liberal and conservative justices joined together in a decision hailed by conservatives. The lone dissenting voice? Conservative Justice Scalia, author of today’s opinion. Weird huh? Forget global climate change as something to be concerned about…….think about judicial opinion swing and the unpredictability accompanied by it. It’s enough to make a constitutional law professor shudder.
So, as of this ruling, the police can not bring a drug sniffing dog onto your porch without a warrant and expect to use the evidence in court to convict you. Ironically, this was not the only drug dog case from Florida heard by the SCOTUS this year. In the case of Florida v. Harris the SCOTUS overturned a Florida Supreme Court ruling which required law enforcement to provide extensive training and effectiveness records for canine drug detecting dogs. Justice Keegan, writing for a unanimous court, allowed a lower standard for certification of the drug detecting dog. The “totality of the circumstances” standard is often used by SCOTUS when they don’t want to lock trial courts into rigid rules. Often what happens is the courts are left confused by such rulings and justice is dealt differently by different judges. Not much of a bright line ruling that sheds confusion here……which is pretty much par for the courts…..err course.
Speaking of confused, I recently read a story where a prosecutor demanded the written statement of the arresting officer in a criminal case he was bringing. The human officers, who had given the credit for the capture of the suspect to their police dog responded that the “officer in question was a dog and unable to give a statement.” Three more times the prosecutor demanded the written statement and finally the police officers sent him what he wanted. On the form in the signature box was a dog’s paw print and the incident description read, “woof woof”. Translation was something to the effect of: stinky bad man run away…..I chase and bite bad man…….bad man surrender. The end.
Who says the police don’t have a sense of humor?
When I was a kid, law enforcement came up with a cute mascot in the same vein as Smokey Bear. The mascot became known as McGruff the Crime Dog. His motto was, “Help take a bite out of crime.” After the Jardine case, perhaps McGruff the crime dog won’t be taking anymore bites out of crime without a warrant….but at least he won’t have to produce his papers upon request.