Supreme Court Restricts Police Ability to Come Sniffing Around Your House

March 26, 2013 - With all the excitement surrounding the Supreme Court arguments on Proposition 8, the California constitutional amendment banning same sex marriage, and the upcoming arguments on the Defense of Marriage Act, it's easy to miss an important decision issued the same morning.  That decision is Florida v. Jardines, one of two Supreme Court cases this year that dealt with police dogs.  

In the first case, Florida v. Harris, a unanimous decision, the Court decided drug sniffing dogs are capable of giving probable cause to search a car.  In Florida v. Jardines, the case decided today, the police took a drug sniffing dog up to the doorstep of a house, and used the dog's ability to smell marijuana from under the door as an excuse to obtain a search warrant of the house and arrest the Defendant on drug charges.  The Supreme Court ruled, in a 5-4 decision, that this was a violation of the Defendant's Fourth Amendment rights against unreasonable search and seizure.

The Court's reason is straightforward.  The police have the same right as a private citizen to go by your house on a public street.  They even have the same right to go onto your property, up to the front door, where the protection is usually the same as the inside of the house. to talk to you and ask you for things, like trick-or-treaters.  These rights are based on the common social practice, which is a standing invitation to the public to knock on your door.  There is no standing invitation to bring a police dog onto your property to conduct a search, however.  Hence the police conduct cannot be said to be based on implicit permission from the homeowner.  In that sense they're trespassing, and the search is covered by the Fourth Amendment.

The ruling has bigger implications than just the narrow circumstance of police dog searches on a doorstep.  The Court, in reaching this decision, made a broader point of restricting the behavior of searching just outside a house, in an area that is subject to the same protections as the inside of the house, not just the instrument used.  

It is wise to keep in mind, however, that the police can still search in areas not protected by the Fourth Amendment.  For example, if the police officer was walking down the street, and smelled marijuana all the way on the sidewalk, he can use that information to ask for a search warrant.  It's also important to keep the decision in context of the Court's previous decisions allowed drug-sniffing dogs at the airport, train station, and at a regular traffic stop.

Scalia specifically noted that the decision is not only about dogs - it's about searches.  The Supreme Court's decision provides defendants everywhere with another tool to argue for the exclusion of evidence obtained by instruments, whether that's dogs, binoculars, or cameras, where police bring them into a private or quasi-private environment to enhance their ability to detect criminal activity.