U.S. SUPREME COURT RESTRICTS USE OF K-9 TO GATHER EVIDENCE OUTSIDE A HOME
On March 26, 2013, the United States Supreme Court ruled 5-4, in the case of State of Florida v. Jardines, that “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.”
Facts
On November 3, 2006, an anonymous, unverified, tip was given to the Miami-Dade Police Department that the home of Joelis Jardines was being used as a marijuana grow house. About a month later, on December 6, 2006, two detectives and a drug-detection dog approached the residence, while other officers of the Miami-Dade Police Department established perimeter positions around the residence, with agents of the Drug Enforcement Administration (DEA) in stand-by positions as backup units.
As stated by the Florida court, “. . . the detective went to the home at 7 a.m. He watched the home for fifteen minutes. There were no vehicles in the driveway, the blinds were closed, and there was no observable activity. After fifteen minutes, the dog handler arrived with the drug-detection dog. The handler placed the dog on a leash and accompanied the dog up to the front door of the home. The dog alerted to the scent of contraband. The handler told the detective that the dog had a positive alert for the odor of narcotics. The detective went up to the front door for the first time, and smelled marijuana. . . . The detective prepared an affidavit and applied for a search warrant, which was issued. A search was conducted, which confirmed that marijuana was being grown inside the home. The defendant was arrested.”
At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search. The trial court granted the motion to suppress the evidence, and the Florida Third District Court of Appeal reversed.
On review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress the evidence, holding that the use of the trained narcotics dog to investigate Jardines’ home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.
The Law
The U. S. Supreme Court stated that the issue to be decided was “whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment?”
The Court began its analysis by setting forth the rights protected by the Fourth Amendment.
“The Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.”
The Court found that “[t]he officers were gathering information in an area belonging to Jardines and immediately surrounding his house – in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.”
The Court reinforced the sanctity of the home against government intrusion. “[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window. We therefore regard the area “immediately surrounding and associated with the home”-what our cases call the curtilage – as “part of the home itself for Fourth Amendment purposes.”
The issue of the “curtilage” also arose in the recent case of Sims v. Stanton, which involved an officer pursuing a suspected misdemeanant through a gate and fence surrounding a home. The court ruled, in that case, that entering the curtilage of the property was the same as entering the home itself and, therefore, usually required a warrant. [See J&M Client Alert Memo, December 17, 2012, Vol. 27, No. 22, “Hot Pursuit of Misdemeanants and Warrantless Entry Into A Home and/or Its Curtilage.”]
Invitee?
The Court addressed the issue, raised by the state, that the officers were “invited” to go to the front door since many persons, such as the mail carrier, a UPS delivery person, or any potential guest, can enter the curtilage and go to the front door.
“We have . . . recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.”
As such, “a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” However, the Court ruled, “introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to dothat.” (Emphasis in original.)
In a footnote, the Court states that “the dissent argues . . . that “gathering evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach.” That is a false generalization. What [a prior Court decision]establishes is that it is not a Fourth Amendment search to approach the home in order to speak with the occupant,because all are invited to do that. The mere “purpose of discovering information,” in the course of engaging in that permitted conduct does not cause it to violate the Fourth Amendment. But no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.” (Emphasis in original.)
Right of Privacy?
The Court also addresses the argument by Florida that previous decisions by the Supreme Court have held that “investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest.” In those cases cited by the state, the Supreme Court had held that “canine inspection of luggage in an airport, chemical testing of a substance that had fallen from a parcel in transit, and canine inspection of an automobile during a lawful traffic stop, do not violate the “reasonable expectation of privacy”. . . .”
Nonetheless, the Court concluded that it did not need to decide whether Jardines’ expectation of privacy was violated. “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.”
HOW THIS AFFECTS YOUR AGENCY
The conclusion of the Court is that entering into the curtilage of Jardines’ home, for the purpose of gathering evidence of criminal activity, required a search warrant. The Court concluded that “[t]he 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.”
The Court’s attention was focused on the physical intrusion onto the property, while recognizing the fact that law enforcement is not required to close its eyes to what can be seen by anyone.
“While law enforcement officers need not “shield their eyes” when passing by the home “on public thoroughfares,” an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas. In permitting, for example, visual observation of the home from “public navigable airspace,” we were careful to note that it was done “in a physically nonintrusive manner.”
The Court referred to its recent decision, in the case of United States v. Antoine Jones, where it also focused on the issue of a physical intrusion by the government. In that case, a GPS devise had been placed on Jones’ car to follow him while he was on public roads.
The Court notes that, in Jones, “the Government argued that “no search occurred,” as the defendant had “no ‘reasonable expectation of privacy’” in his whereabouts on the public roads, . . . a proposition with at least as much support in our case law as the one the State marshals here. But, because the GPS receiver had been physically mounted on the defendant’s automobile (thus intruding on his “effects”), we held that tracking the vehicle’s movements was a search. . . .” [See J&M Client Alert Memo, Vol. 27, No. 2, “U.S. Supreme Court Rules Use of GPS Tracking Device Is A Search.”]
The dissent emphasized, among other points, that “[t]he Court’s decision is . . . inconsistent with the reasonable-expectations-of-privacy test that the Court adopted in Katz v. United States, 389 U. S. 347 (1967). 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.”
Notwithstanding that different perspective, the law is now clearly established that entry onto the property, for the purpose of gathering evidence, as part of a criminal investigation such as the one in this case, is considered a search.
In order to protect the officer and the agency from potential civil liability, it is imperative that you seek out, and follow, advice from your agency’s legal advisor. As always, if you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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