U.S. Supreme Court Ruling FL. v. Jardines March 2013 **NEW***
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. Entering the Curtilage of a Person's Home without a Warrant, Exigency, or Consent for the Purpose of Conducting a Search, Violates the Fourth Amendment...Even if the Officer in Doing So Follows the Path that a Visitor would Normally Take.
In Florida v. Jardines, [i] the United States Supreme Court examined whether the use of a trained narcotics sniffing dog on the front stairs of a home was a search under the Fourth Amendment.
The case involved an unverified tip received by Detective Pedraja of the Miami-Dade Police Department indicating that Joelis Jardines was growing marijuana in his home. A month later, the DEA sent a joint surveillance team which included Detective Pedraja to Jardines home. The officers noted that they could not see into the house because the blinds were drawn and there were no cars in the driveway or activity around the home.
After about fifteen minutes, Detective Pedraja accompanied a canine handler and his dog onto the property and approached the home. As the dog neared the front porch he began alerting by energetically exploring the area in accord with training in order to find the strongest point of origin for the source of the odor. The dog moved back and forth "bracketing" the odor until finally sitting down at the base of the front door to indicate that this was the origin of the source. The canine handler informed Detective Pedraja that there was a positive alert and the left the area.
On the basis of the canine's alert Detective Pedraja obtained a search warrant which led to the recovery of marijuana plants. Jardines was arrested as he tried to flee the scene when the warrant was executed. As a result of the investigation and seizure, Jardines was charged with trafficking in cannabis. Jardines moved to suppress the evidence at trial by challenging the authority of law enforcement to bring the drug-sniffing canine onto his property without a warrant, exigency or consent. Jardines was successful in the Florida courts, which led the state to appeal to the United States Supreme Court by arguing that the actions of the officers in using a drug-sniffing canine did not constitute a search under the Fourth Amendment.
In examining the case, the Supreme Court pointed out its review of the case was limited to the question of the whether the officers' action amounted to a search under the Fourth Amendment.
The Court citing its recent decision in United States v. Jones, asserted: "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.'"[ii]
Using this trespass type analysis, the Court asserted:
"That principle renders this case a straightforward one. The 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... At the [Fourth] 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 Court noted that the officers and the canine had clearly intruded upon the property and then distinguished the officers' conduct here, from the simple act of an officer walking up to someone's front door and knocking. The Court noted:
"We have accordingly 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. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation's Girl Scouts and trick-or-treaters. Thus, 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... But 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 do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to--well, call the police...Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search."
In the decision the Court went well beyond the narrow question of whether an officer could bring a drug-detecting canine with them into the curtilage of a person's home and instead focused on what a person would allow anyone to do who approaches their front door. The Court stated:
Here, however, the question before the court is precisely whether the officer's conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.
The implications of this case are broader than the conduct which occurred. As in Jones, the Court returned to a trespass analysis while still leaving in place the reasonable expectation analysis for determining whether a Fourth Amendment search has occurred. The Court noted:
"The Katz reasonable-expectations test 'has been added to, not substituted for,' the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas."
In its review the majority determined there was no reason to determine whether or not Jardines had exhibited a subjective expectation of privacy and whether or not society would accept that expectation as objectively reasonable. Instead the Court would simply focus on whether the officers had entered the property for the common purpose to which others could enter the property, i.e. knock on the door, or whether in the alternative the officers entered the property for a purpose that most people would not agree to, such as entering in order to search.
The Court concluded that law enforcement's use of trained canines to search the home and its immediate surroundings is a search within the meaning of the Fourth Amendment.
Author's Note: In deciding whether an officer's conduct in entering property around a home without a warrant, exigency, or consent, officers must consider whether the purpose of their entry is consistent with the purpose for which others, such as delivery men could enter. If the officers are entering for a purpose beyond knocking at the door to ask a question, provide information or make a delivery then the trespass analysis will likely apply and any evidence located as a result of the entry will likely be inadmissible.
It is important to note that the United Supreme Court has identified "curtilage" [iii] as follows:
At common law, the curtilage is the area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life," Boyd v. United States, 116 U.S. 616, 630 (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes. Thus, courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.
Some open questions:
How would the analysis apply to an officer's actions in the common hallway of an apartment or a hotel where no trespass is required since anyone can walk the common hallways? Will such action be analyzed by the trespass analysis or the expectation of privacy analysis? Remember the expectation of privacy analysis was necessary to protect Mr. Katz from a police listening device, who was using a public phone booth with the door closed specifically because the trespass analysis would not have protected Katz since the F.B.I. did not physically penetrate the protected area to make their search.
What would happen if the owner of the home clearly marked his property with no trespass and no solicitation signs warning even the casual delivery man, postman, and all others to stay off the property? Since the Court held that the officer's implied license to enter the property is similar to the deliveryman and the Girl Scout selling cookies, would an express revocation of the implied license, eliminate the right of an officer, without warrant, exigency, or consent to even enter to knock at the door.
If the driveway is within the home's curtilage it seems clear that entry to view a vehicle in the driveway may violate the rule in this case. An open question would be the interplay between the motor vehicle exception and the rule announced in this case. Would the exigency of a movable vehicle extend exigency to the entry of curtilage to examine the vehicle?
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] Florida v. Jardines,___U.S.___, 2013 U.S. LEXIS 2542 (2013).
[ii]United States v. Jones,565 U. S. ___, ___, n. 3, 132 S. Ct. 945, 181 L. Ed. 2d 911, 919 (2012).
[iii]Oliver v. United States,466 U.S. 170 (1984).