The U.S. Supreme Court ruled Tuesday that police cannot intrude onto private property and use drug-sniffing dogs to obtain probable cause for a more thorough search, in an untypical ruling that saw Justice Antonin Scalia side with the court’s liberal wing to swing the 5-4 decision.
The case, Florida v. Jardines (PDF), arose after police received an anonymous tip claiming marijuana was being grown at a house owned by Joelis Jardines. When officers walked a drug-sniffing dog up to his front porch, they claimed it behaved in a manner that indicated the presence of narcotics. They used this as probable cause to obtain a warrant to search the premises and discovered marijuana plants.
An appeal made it all the way up to the Florida Supreme Court, which held that the search was invalid because of how it was obtained. The Supreme Court agreed on Tuesday, affirming that the area around a person’s home is protected from unreasonable search and seizure.
“One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy,” Scalia wrote. “That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that [an unwarranted] search occurred.”
Concurring, Justice Elena Kagan wrote that the dog is much more than just an animal that strayed onto the Jardines’ property. “Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell),” she wrote. “And as in the hypothetical above, that device was aimed here at a home—the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of privacy? Yes, that as well.”
Justice Samuel Alito, writing for the court’s dissenting minority, insisted there is not a single law or ruling the court could point to that supports Kagan’s argument about dogs, which he explained have been around for thousands of years. His counter-argument hinged upon how long the officers were on the property — about a minute or two, Alito wrote — which is no more than a typical visitor might do. He also compared the officers’ actions to someone simply not knocking when they approach a house, similar to a neighbor picking up an accumulation of newspapers for a family that is out of town.
“It is clear that the occupant of a house has no reasonable expectation of privacy with respect to odors that can be smelled by human beings who are standing in such places,” he added. “And I would not draw a line between odors that can be smelled by humans and those that are detectible only by dogs.”
Scalia, on the other hand, bluntly rejected the contention that an officer “marching his bloodhound into the garden before saying hello or asking permission” is normal, insisting it “would inspire most of us to — well, call the police.”