A few months ago, the Supreme Court granted cert in two fascinating dog cases — specifically, cases about the Fourth Amendment implications of the use of drug-detection dogs. I’m planning on blogging a bunch about the cases both here and over at SCOTUSblog once the Term ends, but for now I had just a preliminary thought on one of the cases, Florida v. Jardines. My though is that the really juicy and interesting issue isn’t the sniff, it’s the walk. In this post I wanted to run by my preliminary thoughts on why.
First, the facts. In Jardines, the police received a tip that a home was being used to grow marijuana. Two officers went to the house with a dog named “Franky” that had been trained to detect narcotics. One of the officers was the trainer of the dog, and the trainer brought the dog up the driveway to the entrance of the front porch, about 6-8 feet away from the entrance to the door. Franky the dog entered on to the porch and walked right up to the front door, where he sat down (as he was trained to do when alerting for drugs). The other officer then went up to the front door, and according to his testimony he could smell the marijuana growing from inside using just his human nose. The officer knocked but no one answered, and then later he used the alerts (both canine and human) to get a warrant to search the home.
I looked up the house on Google Street View, and I think (although I’m not sure) that the picture below is the house. Just click on it to expand the photo:
The search of the home revealed marijuana plants growing inside. The issue in this case is whether the use of Franky to sniff for narcotics constituted a Fourth Amendment search.
Florida’s merits brief answers that question by focusing mostly on one issue: Does Caballes v. Illinois apply to search of a home? Caballes held that using a trained drug-detection dog to detect drugs in a car is not a Fourth Amendment search because the dog cannot reveal information that deserves Fourth Amendment protection. The dog either reveals that contraband is present or the dog reveals nothing, and a person cannot have a reaosonable expectation of privacy in either fact, Caballes held. Caballes then distinguished Kyllo on the ground that a thermal imaging device can reveal lots of other facts about what is happening inside a home beyond the presence or absence of contraband, and its use therefore violates a reasonable expectation of privacy.
The first issue in Jardines is whether the Justices will stick to the rationale of Caballes in the context of a home rather than a car, especially now that the author of Caballes and the Court’s primary proponent of its no-privacy-right-in-the-presence-of-narcotics rationale, Justice Stevens, has retired. There are pros and cons to sticking with that rationale, and I’ll get it into them in a future post.
In this post, I wanted to get into what I see as the more interesting question raised by Jardines: Regardless of whether the use of the use of a dog is a search, did the police violate the Fourth Amendment when they approached the front porch and then the door with the drug-sniffing dog? That question gets to an issue that the Supreme Court has never addressed but that is hugely important: How does the open fields/ curtilage distinction apply to a front entrance to a home?
Here’s the issue. One of the historical principles of the Fourth Amendment is that the Amendment protects the home but does not protect open fields. The Court has held that there is a space around the home that is needed to protect the home: This space is called the “curtilage,” and crossing on to the curtilage around the home constitutes a search much like entering the home does. The curtilage concept stops the police from being able to walk up to a suspect’s house, step through the bushes, and park right in front of a window where they can see the family eating dinner inside. Allowing the police to do that would essentially let them peer inside the home at will, which is akin to a search of the home. So the police have to stay in open fields and can’t cross over on to the curtilage. So what’s open fields and what is curtilage? Unfortunately, there is no clear answer to that: The Court has said that the line between curtilage and open fields is governed by a four-factor test that is notoriously unclear and highly fact-sensitive. So one issue in Jardines is whether walking up the driveway, stepping on to the porch, and walking up to the door to “sniff” crosses on to the curtilage.
At this point you’re probably thinking that the police often go up to a home, knock on the door, and try to talk to the person if they’re home. We know that is generally allowed. And of course that’s right: The courts have uniformly allowed the so-called knock-and-talk procedure, just as they allow the mailman to come on to the property to deliver the mail. But here’s the interesting part. If you look at the lower court cases on this in the context of surburban or rural single family homes, most decisions I have found have concluded that (a) the front steps of the home is curtilage and therefore entrance on to it is a search, but that (b) the cops can go on a person’s property, walk up to the door, and knock and talk because the homeowner has impliedly consented to the search. The nature of walkways and doorbells is that the owner is impliedly consenting to being visited by the kind of usual visits that homeowners receive, the lower courts say, ranging from the mailman and the UPS guy to a neighbor dropping by to say hi. That covers the knock-and-talk, as officers are just dropping to chat (or so the cases say, anyway).
If the front porch and space next to Jardines’s door was curtilage, then, the question becomes whether Jardines had impliedly consented to the officers’ visit. And this raises a classic criminal law puzzle: How do you construe the scope of implied consent, and what level of generality do you choose? If you construe the scope of consent at a high level of generality, you could say that homeowners impliedly consent to visits. This was a visit, so there was implied consent to go up to the door and knock. (The officer who was not the dog trainer testified that he approached the house with the intent to knock and talk, but it’s pretty obvious that the officers’ primary goal was to have Franky do his thing.) On the other hand, if you construe the scope of consent at a specific level of generality, you could say that homeowners do not impliedly consent. No one in their right mind would consent to have drug-detection dogs sent to their home to sniff to see if there are drugs inside. So from the more specific level of generality, there is no consent. The officers could approach the home and knock on the door, but they could not bring the trained dog to sniff for narcotics.
Anyway, my goal in this post is not to resolve these issues, but rather to suggest that the really meaty and interesting stuff in Jardines is less the Caballes issue than the curtilage/open fields and implied consent issue. Florida’s brief pays little attention to that latter issue, and the SG’s brief cruises by it pretty quickly, too (see pages 22-24). But I think there’s a lot there, as it provides the easy way the Court may be looking for to allow drug sniffing dogs in auto stops but also to protect the sanctity of the home. Instead of rethinking Caballes, the Court just needs to say that homeowners impliedly consent to knock-and-talks but not Franky the Wonder Dog nosing around for the wacky weed.