March 26, 2013

"The government’s use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment."

Justice Scalia writes in a new Supreme Court opinion. This is one of those 5-4 cases where Scalia and Thomas join the liberal Justices. It's not 6-3 because Justice Breyer joins the conservatives.

Here's the PDF of the case.
[W]e need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.
The dog had gone up onto the porch — that is, the curtilage: "The front porch is the classic exemplar of an area 'to which the activity of home life extends.'"

Justice Kagan (with Sotomayor and Ginsburg) joins Scalia's opinion "in full" and riffs on Scalia's "keeps easy cases easy" by quipping that adding the expectation of privacy analysis would "make 'an easy cas[e] easy” twice over.'"

Alito writes the dissenting opinion. The police came onto the property, but only on "the customary path," during the daytime, and for "less than a minute or two." As for privacy:
A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human.
Alito's opinion is much more dog-positive than Scalia's or Kagan's. Scalia and Kagan refer to "the dog" — it's basically a tool of the police to them. Kagan compares the dog's nose to the "thermal imaging device" in Kyllo. Alito calls the dog by name: Franky. Alito's got footnotes to things like "A Dog's History of America: How Our Best Friend Explored, Conquered, and Settled a Continent."

You decide:
  
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71 comments:

rhhardin said...

Demonstrantion of dogs' scenting capability.

Matthew Sablan said...

Don't most people treat police dogs like an officer? Did they consider a sort of plain smell exemption?

X said...

This is one of those 5-4 cases where Scalia and Thomas join the liberal Justices.

or it's one of those rare cases when Kagan, Ginsberg, and Sotomayor find a limit to government power and read the Bill of Rights correctly.

TosaGuy said...

Our federal overlords have no problem making sure that local police have to follow the Bill of Rights. They are less concerned about reining in what the Feds can get away with.

Ann Althouse said...

"Did they consider a sort of plain smell exemption?"

You have to be able to get into the position where you can perceive the thing. That's where the breach occurs.

Irene said...

"Alito's opinion is much more dog-positive than Scalia's or Kagan's. Scalia and Kagan refer to "the dog" — it's basically a tool of the police to them."

Scalia characterizes Franky as a Dervish-like force:

"Detective Bartelt had the dog on a six-foot leash, owing in part to the dog’s 'wild' nature [ ] and tendency to dart around erratically while search¬ing. As the dog approached Jardines’ front porch, heapparently sensed one of the odors he had been trained todetect, and began energetically exploring the area for the strongest point source of that odor. As Detective Bartelt explained, the dog 'began tracking that airborne odor by. . . tracking back and forth,' engaging in what is called 'bracketing,' 'back and forth, back and forth.' [ ] Detective Bartelt gave the dog 'the full six feet of the leash plus whatever safe distance [he could] give him' to do this—he testified that he needed to givethe dog 'as much distance as I can.' [ ] And Detective Pedraja stood back while this was occurring, sothat he would not 'get knocked over' when the dog was 'spinning around trying to find' the source."

Isn't this the way most police dogs behave when they scent a target?

Matthew Sablan said...

I was more being flippant.

Ann Althouse said...

The cops went up on the porch with a drug-sniffing dog — without a warrant.

Do you accept the cops going around from door to door to anyone's door, with a drug sniffing dog, then getting a warrant to search whatever house arouses the dog?

Is that your America?

Irene said...

No. I was focused more on how the opinion characterized the dog's behavior.

MadisonMan said...

A ruling that reduces Police Power is a good ruling, in my opinion.

Almost without exception.

The police state has accrued far too much cash via drug forfeitures, and too much power through their subsequent purchases.

Matthew Sablan said...

I think that without a good reason, there's no reason to bring the dog to the property. I would imagine it would be like pointing a camera at a house from a public street; just because you have a tool, doesn't mean you can use it to intrude without cause.

Unless the dog is fluffy and friendly. Then, it should be allowed to do whatever it wants.

john said...

I guess the front yard and porch are legally defined as a penumbra.

X said...

my girlfriend often tells me what her dog is thinking too.

Loren said...

Dogs can be trained to give the response the handler wants. Just saying.

Fritz said...

Sure, dogs have great noses. But they really, really want to make their handler happy. If "alerting" makes their handlers happy, they'll do it.

I'll bet cops cover up false alerts by their dogs all the time. Didn't find the drugs they expected? It was the residue from the last time.

If I was king, police dogs would be tested routinely in double blind tests, where neither the handler or the person conducting the test knew where the shit was hidden. And even then, the situation would be so different from a real field event that the results would be questionable.

Sorry, as good as dogs are, searches made using them as probably cause should not be permitted.

Ann Althouse said...

"No. I was focused more on how the opinion characterized the dog's behavior."

I think the difference from an ordinary dog is that the drug-sniffing dog limits this reaction to drugs.

Henry said...

Best poll ever.

BarrySanders20 said...

Maybe the cops can give their drones cute names too and Alito will give them a pass.

Methadras said...

If an officer or a police dog smelled smoke from a building that was on fire, but you couldn't see it, would that be the same thing as saying it's reasonable that an odor emanates and wafts out into the public sphere? Are there certain odors that don't waft out into the public sphere where reasonable people would say, "Hmmm, I smell something, but it's none of my business on what it is." Shouldn't that same thing apply to the police or is everything within their sensory capacities fair game for probable cause and 4th amendment searches?

Ignorance is Bliss said...

Ann Althouse said...

Do you accept the cops going around from door to door to anyone's door, with a drug sniffing dog, then getting a warrant to search whatever house arouses the dog?

No. Just as I don't accept the cops following just anyone around, asking their neighbors questions, reviewing store security video tapes that may show them shopping, or gathering their DNA from a discarded coffee cup.

But I accept any or all of those actions targeted at a specific individual or group suspected of a specific crime, even if they do not yet have enough evidence to reach the probable cause standard.

That seems a better analogy than the one you give.

I do agree with the majority in this ruling, but I think it is a much closer call than your analogy implies.

Methadras said...

Ann Althouse said...

The cops went up on the porch with a drug-sniffing dog — without a warrant.

Do you accept the cops going around from door to door to anyone's door, with a drug sniffing dog, then getting a warrant to search whatever house arouses the dog?

Is that your America?


Not my America. Using a dog like an extra-sensory device to go door to door to 'reasonably' sniff or detect odors that a dog would consider a 'hit' as an indication of drug or illicit activity is in my opinion not reasonable. What's to stop the police from basically automatic this process with new electronic sniffing devices and mounting them on their car and driving in neighborhoods 'looking' for that sensory stimulus that indicates something potentially nefarious and using it as probable cause?

Rusty said...

. tracking back and forth,' engaging in what is called 'bracketing,' 'back and forth, back and forth.' [

it's called "casting"


I think the difference from an ordinary dog is that the drug-sniffing dog limits this reaction to drugs.

I'm almost positive if a ham bone was there he'd hit it first.

damikesc said...

Anything limiting police power is a plus.

john said...

Alito: “Dogs have been domesticated for about 12,000 years; they were ubiquitous in both this country and Britain at the time of the adoption of the Fourth Amendment.”

Either he's a master of the non-sequitur or is easily distracted by shiny things.

This was George's second pick. I wonder how Harriet would have voted.

Tank said...

Ann Althouse said...

The cops went up on the porch with a drug-sniffing dog — without a warrant.

Do you accept the cops going around from door to door to anyone's door, with a drug sniffing dog, then getting a warrant to search whatever house arouses the dog?

Is that your America?


Well, no, but my America is pretty much dead anyway. This is just a blip.

prairie wind said...

Sorry, as good as dogs are, searches made using them as probably cause should not be permitted.

Yes. Taking a dog's "word" as gospel is crazy. Using dogs in rescue operations? You bet. The difference is that in one, we need to find people to rescue and if a dog can help find them, that's good. In the case of drug searches, the law matters, the methods matter, the dog's judgment matters. A dog has judgment?? Can we question the dog to decide if his judgement is solid?

I agree with those who say that limiting the power of law enforcement is always a good thing.

prairie wind said...
This comment has been removed by the author.
rhhardin said...

My Doberman Susie followed crush scent until she came across something retrievable like a sock and brought it back out of the alfafa field.

It was all done at about 20 miles an hour speed.

She got to keep the sock, and paraded it around the house for a few hours to announce that she remembered the day's quest.

Pogo said...

"Is that your America?"

Nope, it's Obama's, it's Bloomberg's.

Fascism will win whichever way the Court goes. Its opponents can only lose. Which way would they prefer to lose?

rhhardin said...

It comes under the police dog powers.

Matthew Sablan said...

"I agree with those who say that limiting the power of law enforcement is always a good thing."

-- But it isn't. If we made it so police cuold only arrest people who at least four police officers witnessed committing a crime, that would limit police power, but I doubt we'd agree that was good.

Ignorance is Bliss said...

Fritz said...

Sorry, as good as dogs are, searches made using them as probably cause should not be permitted.

Eye-witnesses are notoriously unreliable, but we rely on them all the time.

I'm fine with a police dog response as probable cause for a search warrant. The police still need to find the actual drugs for there to be an arrest.

I would be fine with a rule saying that all dog searches must be video-taped, so that the defense can argue that the handler triggered a false positive, or the handler claimed a positive response when there was no response.

prairie wind said...

If we made it so police cuold only arrest people who at least four police officers witnessed committing a crime, that would limit police power, but I doubt we'd agree that was good.

Sure. You have me when it comes to specifics. However, law enforcement should have limited power. I think you'll agree with that.

Andy Freeman said...

If you fight a police dog, are you resisting arrest? (The dogs are trained to immobilize folks.)

Matthew Sablan said...

Yeah; I agree with limits. It is just tough deciding what those should be.

Kirk Parker said...

MadMan @ 10:47am has it perfectly. I'm perfectly willing to scale back a few legitimate powers now and then if that's what it takes. We can always fine-tune that going forward.



Althouse,

"the drug-sniffing dog limits this reaction to drugs. "

That's what they claim, sure. But I'm voting for Fritz for King, because I want to see those routine double-blind tests too.

prairie wind said...

I'm fine with a police dog response as probable cause for a search warrant. The police still need to find the actual drugs for there to be an arrest.

Almost all search warrants are executed using SWAT teams or using the home invasion model. You are willing to inflict that on your family and friends based on a dog's reaction? The fact that there wasn't an arrest at the end of the day...would that really make things right? In the case at my link, they rely on an informant, not a dog, but the results would be the same.

Kirk Parker said...

Matthew,

Sure it's hard. But the presence of "hard cases" doesn't make every question hard; there are plenty that are easy.

This one is easy: until we can get the routine double-blind test regimen going, dog tests are suspicious if not downright bogus.

Ignorance is Bliss said...

prairie wind said...

Almost all search warrants are executed using SWAT teams or using the home invasion model.

Do you have a link for that?

I would trust a police dog response over an informant, as long as the handler was not trying for a false positive. And any police unit where the handler was trying for a false positive could probably come up with an informant to lie for them anyway.

And, since the example you cite didn't even involve a dog's reaction, isn't the real problem with the tactics used in executing the warrant?

Roux said...

Not sure what jurisdiction but where I live the dogs are police officers.

Kirk Parker said...

Ignorance,

"I would trust a police dog response over an informant, as long as the handler was not trying for a false positive."

Dude,you just gave away the store.

Kirk Parker said...

And the "trying for a false positive" doesn't even have to be conscious. As rhhardin will tell us, the link between a well-trained dog and its handler is mystical, and we sure don't know all there is to know on the subject.

Revenant said...

Dogs are great at sniffing out the things they're trained to sniff out. They're even better at sniffing out things that aren't actually there.

Either way, they're great for manufacturing an excuse for police to do further searches. Tarot cards and ouija boards aren't nearly as cute and furry.

Ignorance is Bliss said...

Kirk Parker said...

Dude,you just gave away the store.

I made it clear that I am familiar with the real world. Would you care to join me by acknowledging my next two sentences?

Fritz said...

The handler doesn't want a false positive; he just wants and expects a positive, and his belief that the result should be positive is transmitted to the dog by the "Clever Hans" effect. The handler doesn't even know he's doing it.

And a lot of the time, the cop is right, and the person is dirty, and you could have skipped using the dog entirely, except it would be a violation of due process without the cops instinct being filtered through the dog.

Jay said...

Ann Althouse said...

Do you accept the cops going around from door to door to anyone's door, with a drug sniffing dog, then getting a warrant to search whatever house arouses the dog?

Is that your America?


Well, I want an America where dogs are on or at least near your porch sniffing to see if you have your ObamaCare mandated health insurance card.

If not, its a tax.

bagoh20 said...

The cops should have sodomy sniffing dogs. They seem naturally inclined to such investigations. Then go door to door.

ken in sc said...

When I was in the Air Force in the Philippines, we were on a C-130 getting ready for a deployment. The Security Police ran a drug/explosive sniffing dog up and down the aisle sniffing our stuff. The dog alerted on one guy's helmet bag and he was required to open it. He had a ham and cheese sandwich in it and that's all, the dog grabbed it and ate it. The guy was very upset that the Security Police would not replace his sandwich.

yoobee said...

I wonder if the decision (and the subsequent commentary) would have been the same if the police found bomb-making paraphernalia instead of marijuana.

Also, I have a hard time buying the argument that the dog is similar to the thermal detection system that the police used in Kyllo. But it's been awhile since I had Crim Pro.

Oso Negro said...

I wonder if this ruling will influence the inevitable drone cases to come.

Rusty said...

At least police dogs can be bribed.

Dante said...

Do you accept the cops going around from door to door to anyone's door, with a drug sniffing dog, then getting a warrant to search whatever house arouses the dog?

Do you accept sobriety checkpoints? I think they are a violation of the 4th amendment too.

ken in sc said...

Yes Rusty, dogs can be distracted by food items. When I taught middle school, a Sheriff's dog alerted on a locker. When opened it contained several handfuls of Fritos, but no drugs. The dog was not allowed to eat the Fritos.

Ignorance is Bliss said...

ken in sc said...

...it contained several handfuls of Fritos, but no drugs.

Fritos are a gateway snack.

Kirk Parker said...

Ignorance,

Obviously I wasn't very clear--your exception totally swallows up your statement, as it's fairly unknowable. But since Fritz @ 12:55pm said it better than I did, I'll just refer to that for further discussion.

President-Mom-Jeans said...

Alito's dissent was pretty weak. I'm surprised that Roberts signed on to it.

Breyer always did have a soft spot for letting the police do whatever they want, probably cause be damned.

Kagan's concurrence was unneccessary, but at least go to the correct outcome.

prairie wind said...

Ignorance,

Try this. Radley Balko has done some excellent work on this topic.

...the number of SWAT team deployments has jumped from 3,000 a year in the early 1980s to more than 40,000 a year by the early 2000s.

Kraska’s research shows that in most cities that have a SWAT team, the SWAT team serves the vast majority of drug warrants. The whole justification for SWAT procedures, which include serving warrants in the wee hours of the night and shock tactics like “flash bang” grenades, black masks, and overpowering weaponry, are to take a suspect by surprise. Were SWAT teams carefully observing the spirit of the announcement requirement by giving a vigorous knock, a full-throated announcement, and appropriate time for an occupant to answer, they’d be defeating the purpose of using paramilitary tactics to serve search warrants in the first place.

It is an interesting piece.

"Gateway snack"... funny stuff.

EMD said...

WISE LATINA FTW.

Was it a drug-sniffing dog? Because that would make sense that the paranoid liberal judges would break that way.

Ignorance is Bliss said...

Kirk Parker said...

Ignorance,

Obviously I wasn't very clear--your exception totally swallows up your statement, as it's fairly unknowable. But since Fritz @ 12:55pm said it better than I did, I'll just refer to that for further discussion.


You're still not very clear. My exception only covers intentional false positives. Fritz only covers unintentional ones.

Do you really believe that intentional false positives are more of a problem than other forms of police lying ( or getting someone else to lie ) in order to get a warrant?

Lem said...

Dogs shouldn't be mixing with pigs.

(at least not yet ;)

Kirk Parker said...

Ignorance, I'll try once more than then give up.

My point is neither: it's that we, the interested, observing, jury-pool and potential person-of-interest public, can't judge the validity of the claim either way. Departments who tolerate/facilitate/promote lying will lie; departments where there's an us-and-them mentality will be highly at risk for the unintentional signalling even if they are otherwise totally professional.

There wasn't a single molecule of joking in my earlier statement about double-blind tests of "drug dogs", and really that needs to be done at two levels: both the dog separately from any specific handler (i.e. can this dog do what is claimed of it), and also all dog+handler teams.

And if the results of their double-blind tests isn't significantly better than random, then they should be completely disallowed for anything and everything related to evidence and issuing of warrants. We can argue about exactly what ratio qualifies as "significantly", and I don't have a specific favorite number to propose, but it's definitely a Caesar's-Wife problem: it's not enough for it to be better than random chance, it has to be believably better enough that the general public will believe it's not staged. I don't give a damn about somebody's arrest rate or chances for promotion, I care about the overall legitimacy of the police with the public, as well as scaling back the current regrettable tendency toward paramilitarization and away from being just specialized members of the community.

Carl Heppenstall said...

My dog can smell the evil stuff from three blocks away. Therefore, he would have been a probable cause warrant factory. Can you imagine? I'm glad he was spared the work-a-day life. So are my neighbors because as a private citizen, my dog is a Libertarian, though he hasn't registered yet (you got it - he doesn't believe in voter registration).

traditionalguy said...

Drone smelling dogs should hit Scalia's 4th Amendment jackpot.

The justice who writes an easy to apply decision based on existing legal categories and real world factual descriptions wins the Oscar from me.

Splitting written decisions into a multiple choice tests with evolved Newspeak can be the worst way to approach a Rule of Law...those decisions come from the "hard cases" we don't like to see the results in.

traditionalguy said...

Drone smelling dogs should hit Scalia's 4th Amendment jackpot.

The justice who writes an easy to apply decision based on existing legal categories and real world factual descriptions wins the Oscar from me.

Splitting written decisions into a multiple choice tests with evolved Newspeak can be the worst way to approach a Rule of Law...those decisions come from the "hard cases" we don't like to see the results in.

Calypso Facto said...

Given that false positives can be up to 73% of police dog alerts, I really don't think they should constitute reasonable cause for searching someone's house. Or person, for that matter.

Fritz said...

Calypso Facto said...

Given that false positives can be up to 73% of police dog alerts, I really don't think they should constitute reasonable cause for searching someone's house. Or person, for that matter.


Good find, thanks.

In the harder sciences, we usually use 95% confidence to determine statistical significance. That is, when making a positive assertion, you should be 95% sure that the assertion does not arise by chance alone.

At 73% false positives, dog alerts should be considered virtually valueless in generating probable cause.

Kirk Parker said...

Good grief, that's way worse than just tossing a coin!

Jack Bunce said...

Police dogs are very difficult to cross examine effectively. They are the witnesses against you. Seems lie a simple constitutional violation since you cannot confront them but merely their handlers.

Bradoplata said...

could you request a double blind test at trial as a way to impeach a drug dog's "testimony"?

Bradoplata said...

could you request a double blind test at trial as a way to impeach a drug dog's "testimony"?

Bradoplata said...

could you request a double blind test at trial as a way to impeach a drug dog's "testimony"?