In Florida v. Jardines, 569 U.S. __ (March 26, 2013), the U.S. Supreme Court decided it was unconstitutional for police officers, who did not have a search warrant, to approach the front door of a person’s home with a drug-detection dog, to allow the dog to sniff for drugs.  Drug agents had received a tip, about a month before the search, that marijuana was being grown in the house.  On the day of the search, a police detective first watched the house for about 15 minutes and noted that the blinds were drawn and nobody came or went.   A second officer arrived on scene with a drug-sniffing dog and the two officers and the dog approached the front porch of the house, where the dog was allowed to sniff until it “alerted” on the front door.  Police then left the area and used the fact that the dog had alerted on the front door to acquire a search warrant.  Armed with the warrant, they returned, conducted a search of the interior and found marijuana growing there.   In a 5-4 decision, the U.S. Supreme Court ruled that the initial approach to the house with the drug-sniffing dog was an unreasonable search under the Fourth Amendment to the United States Constitution.  Absent the evidence gathered in that unreasonable search, there would not have been probable cause for the search warrant, so the decision of the Florida Supreme Court to suppress the results of the search inside the house was upheld.

The majority opinion was written by Justice Scalia, joined by Justice Thomas.  There was a concurrence, written by Justice Kagan, joined by Justices Ginsberg and Sotomayor.   The Scalia opinion was grounded in a property rights theory.   As a general rule, a search warrant is required for the search of a home.  This rule extends to the home’s “curtilage,” which is the area immediately surrounding the home, intimately connected to it and deserving of the same level of privacy as the home itself.     A search warrant is not required if a person consents to a search of the home or its curtilage, and it has long been recognized that, through social convention, people impliedly consent to allow members of the public (mail and newspaper carriers, door-to -door sales people, trick-or-treaters, etc.) to approach the front door of their houses, to knock, and even to ask to enter.   The law recognizes that a police officer who approaches a house along the same path used by members of the general public enjoys the same license to enter the curtilage, and even to knock and ask permission to enter and search the home.  The law also recognizes that if an officer, acting within the scope of this implied license or consent, sees evidence of illegal activity in plain view, there is nothing unreasonable about the officer using this observation against the homeowner or occupants.  For instance, if the homeowner opens the door and the officer sees a meth lab over the homeowner’s shoulder, the officer is allowed to use that observation to obtain a warrant to search the home.  The dissent, in Jardines, argued that there was nothing in the case that allowed a principled distinction to be drawn between this circumstance and what occurred in Jardines.

In Justice Scalia’s opinion, however, there was an important distinction to be drawn.   The way Scalia viewed it, the officers exceeded the scope of the customary license to approach a home along the path ordinarily used by members of the public.   Custom may dictate that a homeowner gives license for people to approach along this path, but the scope of that customary consent is exceeded when someone enters the curtilage for the purpose of conducting a search of the home from within the curtilage.   This is what the police in Jardines did when they entered Jardines’ front porch and used a trained drug dog to sniff within the curtilage, to detect what was inside the home.   Scalia observed that nobody can be held by custom to consent to such activity.

The Kagan concurrence applied an “expectation of privacy” analysis, as opposed to Scalia’s property rights analysis.   The concurrence opined that a homeowner has a reasonable expectation of privacy that nobody will enter onto their premises and use a device (here, a drug dog) that allows them to detect things inside the house that one could not detect from outside with ordinary senses.   For instance, it would be just as problematic for officers to approach the front door of a house and then peer through the window with binoculars, to observe activities inside in great detail.   But in the view of the concurrence, these principles are grounded in expectation of privacy concerns, not property rights, per se.

Again the dissent thought that precedent dictated that the police activity in Jardines was all well and good.  Officers approached a house along the path to the front door and used a dog to detect an odor that was plainly detectable to the dog from that vantage point, outside the house, indicating there were drugs inside.   The dissent pointed out that dogs have been used by police forever and are nothing like a special high-tech device, not generally available to the public that allows an officer to detect activities inside a home.

In any event, between Scalia’s opinion and the concurrence, five justices decided that the search in Jardines was constitutionally unreasonable and that suppression of its fruits was the appropriate result.   Actually, I suspect that the part about the opinion reaching the right result is exactly what explains the rest.   Two quite conservative members of the Court and three quite liberal members could agree on one thing:  it’s just too creepy to allow police officers to approach people’s houses without a warrant and without probable cause and start snooping around the front door with drug-sniffing dogs, or binoculars, or whatever other implements they might use to detect what’s inside.   But while the five justices agreed that the practice is too creepy to be allowed, they couldn’t agree on the appropriate legal rationale to carry them to the desired result.   As for the dissent, thankfully they didn’t have another vote, but I have to say they made some valid points.  In my view, the majority and the concurrence were not entirely convincing in trying to make the case that their opinions square with the Court’s own precedent, which brings me to another point– this is how things really work much of the time.

It all starts with the fact that judges and lawyers all go to law school.  In law school, everyone is trained for a profession in which their role is to advocate for clients.   Clients don’t particularly care to pay their lawyers to engage in a search for truth.   Clients want lawyers to carry the banner, to advance their cause, to win their case.    Law schools train lawyers who will serve clients.  In other words, legal training, and the practice of law itself, teach that the first order of business is to determine the result to be achieved; that all else flows from there.   The lawyer sets about constructing the most convincing possible argument to reach the desired result within the constraints of existing precedent.    As time goes on after law school, some lawyers become judges, and some of those become appellate judges.   Those who become appellate judges receive no more training than the lawyers whose ranks they leave behind in sifting precedent to reach absolute truth.  There is one clear difference, though, between the appellate judge and the practicing lawyer.  The practicing lawyer is in no position to decide for himself or herself the desired end to be achieved in a particular case– the client makes that decision.   On the other hand, appellate judges are in a position to decide for themselves what result should be achieved and then to revert to their training as lawyers to structure the strongest possible argument in favor of that end.    But for a judge to do this is to enter the realm of the political, while armed with the power to impose ones’ will by fiat.  The best we can ordinarily hope for is that our appellate judges will strain against their inclinations to first decide the desired result; that they will struggle against the temptation to enter  the political realm.   And yet, most of us will cheer the appellate judge who dons the political mantle to impose our will.   It’s only when things go the other way that we work up indignation.   So, I like Jardines, because the police conduct there is frankly something that should be spurned in the America I care to live in, but I’m not entirely convinced by the arguments that got us to the desired result.

As it stands, per Illinois v. Caballes, 543 U.S. 405 (2005), if police pull you over while you are driving, they can run a drug dog around the exterior of your car to sniff for drugs, as long as that doesn’t unreasonably extend the duration of the initial traffic stop but, per Jardines, they can’t come to the front door of your home with a drug-detection dog, seeking to detect drugs inside.    I guess when police officers shave their heads, wear black gloves and run drug-sniffing dogs around cars at motor vehicle stops, I should feel a heightened sense of security, but it’s alright that I should be creeped- out at the prospect of their coming up the street with drug dogs, for a house-to-house sniff of everyone’s front door. My thanks to the Supreme Court for that much affirmation, anyway.



  1. JB

    Enjoyed another of your writs, and this time at a decent hour. I miss having these kind of conversations with you in the hallways of justice, but this forum does just fine. I agree with all that you state, though may have drawn a focus on the elements of Scalia and the home. He is rather consistent that the government needs to stay away from it without an excellent reason for being there (I am reminded of his opinion in Kyllo, that you allude to above).

    Thanks for the posts. They are fun and exceptionally readable!