Paired for argument with another drug-sniffing dog case this week, Florida v. Jardines is half of the US Supreme Court’s first review of canine narcotics detection since 2005. Arguably, it is the Court’s first serious review of drug-sniffing dogs. The question inJardines is whether bringing a drug-sniffing dog to the front door of a home constitutes a Fourth Amendment search. Companion case Florida v. Harris will examine the evidentiary value of drug-dog alerts.
Jardines could, and should, be much more than a thumbs-up or thumbs-down on drug-dog searches at the home, though. It is an opportunity for the Court to revamp Fourth Amendment doctrine, which was thrown open by January’s decision in US v. Jones.
In Jones, the Court was unanimous about the unconstitutionality of GPS tracking absent a warrant, but it divided evenly as to Fourth Amendment rationale. Justice Antonin Scalia’s majority holding used property rights rather than the “reasonable expectation of privacy” test preferred by the four-justice concurrence in the decision authored by Justice Samuel Alito.
Jardines would be a good case for closing the door further on the “reasonable expectation” doctrine first articulated in Katz v. US. The test may be easy to use in the context of the home, but rather than intoning about “privacy” and “expectations” as courts have been doing since Katz, the Supreme Court should administer the Fourth Amendment as a law. It should find that a search has occurred when the behavior of government agents is consistent with the meaning of the word “search.” That is, when they seek information that is otherwise imperceptible to them.
Jardines does seem teed up to find that a dog-sniff is a search, given the proximity of this particular dog-sniff to the home. “Houses” are a sanctuary particularly listed as protected in the Fourth Amendment, of course, and courts have been rightly solicitous of the home since the beginning. However, if the Court is going to find that a dog-sniff is a search at the home, it must dislodge the doctrine that solidified in Illinois v. Caballes. In that case, the Court found that trotting a drug-sniffing dog around a car stopped for a different, legitimate reason is no search at all.
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