Tag: Florida v. Jardines

Jardines: The Supreme Court Retreats to the Home

The Supreme Court ruled today in Florida v. Jardines that “use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

It’s the right result. The Court was divided 5-4, though, and the case shows some of the same fissures around Fourth Amendment doctrine that U.S. v. Jones did last year.

The majority opinion, written by Justice Scalia, won’t clear up the doctrinal debates, which are sure to continue. Instead, it retreats to the home. The specific protection for “houses” in the Fourth Amendment, he wrote:

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.

Property law gives strangers an implied license to approach a house for the variety of purposes they may have. “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.”

Justice Scalia did use the case to answer a question left open by Jones. He emphasized that the “reasonable expectation of privacy” test from Katz v. United States (1967) built upon, and did not supplant, the Fourth Amendment’s foundation in property. He specifically declined to use that test in the holding.

The dissent objected vigorously to the idea that approaching the front door of a home via the walk was a trespass.

“[G]athering evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach,” Justice Alito wrote. “And when officers walk up to the front door of a house, they are permitted to see, hear, and smell whatever can be detected from a lawful vantage point.”

The dissent also rejected an argument put forward by the concurrence: that the reasonable expectation of privacy test is an alternative ground for the holding.

Yes, Justice Kagan would also have used “reasonable expectations” to decide the case, but her concurrence covers more important ground than that. As she did at oral argument, she fixed on the government’s use of the dog to perceive things that couldn’t otherwise be perceived. That’s what searching is.

“[P]olice officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted.” And later: “[A] drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell).”

In the Cato Institute’s brief in the case, I emphasized that drug-dog detection was but one form of chromatography, the use of which the court should treat as searching because it “look[s] for or seek[s] out that which is otherwise concealed from view” (quoting Black’s Law Dictionary).

A No-Brainer: Bad for Privacy and Liberty

CNET journalist Declan McCullagh has lit up the Internets today with his reporting on a revamped Senate online privacy bill that would give an alphabet soup of federal agencies unprecedented access to email and other online communications.

Leahy’s rewritten bill would allow more than 22 agencies – including the Securities and Exchange Commission and the Federal Communications Commission – to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

This would be an astounding expansion of government authority to snoop. And it comes at a time when the public is getting wind through the Petraeus scandal of just how easy it already is to access our private communications.

Assuming McCullagh’s reading of the draft he obtained is remotely plausible, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) should reconsider his current course–if he wants to maintain the mantle of a privacy leader, at least.

The Washington, D.C., meta-story is almost as interesting. Who is where on the bill? And when? The ACLU’s Christopher Calabrese told McCullagh last night, “We believe a warrant is the appropriate standard for any contents.” Freedom Works came out of the gate this morning with a petition asking for oppositions to Senator Leahy’s revised bill.

The Center for Democracy did not have a comment when McCullagh asked, though spokesman Brock Meeks suggests via Twitter today that McCullagh didn’t try hard enough to reach him. The reason that’s important? CDT has a history of equivocation and compromise in the face of privacy-invasive legislation and policies. At this point, the group has said via Twitter that they “wouldn’t support the rewrite described in CNET.” That’s good news, and it’s consistent with people’s expectations for CDT both on the outside and within.

There will undoubtedly be more to this story. Emails should not only be statutorily protected, but Fourth Amendment protected, based on the framework for communications privacy I laid out for the Supreme Court in Cato’s Florida v. Jardines brief.

Drug-Sniffing Dogs Are Sense-Enhancing Technology

The Supreme Court heard oral argument yesterday in Florida v. Jardines, a case that examined whether bringing a drug-sniffing dog to the front door of a home looking for drugs was a Fourth Amendment search.

Having attended the oral argument (transcript; audio forthcoming), my sense is that a majority on the Court thinks dog-sniffs at front doors (absent a warrant) go too far. But few of the justices know why. The one who does is Justice Kagan.

What rationale might the Court use to decide the case? Even after United States v. Jones threw open Fourth Amendment doctrine, the instinct for using “reasonable expectation of privacy” analysis is strong. (I’ve joked that many lawyers think the word “privacy” can’t be uttered without the prefix “reasonable expectation of.”) This is where much of the discussion focused, and Justice Breyer seemed the most firmly committed to its use.

But the insufficiency of “reasonable expectation” doctrine for providing a decision rule was apparent when Breyer teed up Jardines’s counsel to knock the case out of the park. There was much discussion of what one reasonably expects at the front door of a home. Neighbors may come up. Trick-or-treaters may come up. Neighbors may come up with their dogs. The police may come to the door for a “knock and talk.” Neighbors, trick-or-treaters, dogs, and police officers may all come up and discover odors coming from the house. What makes the drug-sniffing dog unexpected?, Justice Breyer asked:

Do in fact policemen, like other people, come up and breathe? Yes. Do we expect it? Yes, we expect people to come up and breathe. But do we expect them to do what happened here? And at that point, I get into the question: What happened here?

Joelis Jardines’s counsel could not say what made the dog unexpected.

Perhaps property law draws the line that excludes government agents with drug-sniffing dogs, while allowing other visitors to come to the door. Not so. Justice Alito in particular pressed Jardines’s counsel for any case that had excluded dogs (drug-sniffing or otherwise) from the implied consent one gives to visitors on the walk and at the front door. The argument is unavailing, this idea that Florida’s property law (put into play by the majority holding in Jones, which relied on property rights) solve this case. Florida property law doesn’t exclude dogs from the implied permission it gives to lawful visitors on residential property.

None of this is to say that the government had it easy. Florida’s counsel had uttered just three sentences when Justice Kennedy informed him that the rule from Illinois v. Caballes would not carry the day. In Caballes, the Court found there to be no search at all when government agents walked a drug-sniffing dog around a car stopped for other reasons. (I attacked what I called the “Jacobsen/Caballes corollary” to the Katz decision in the Cato Institute’s brief to the Court, and also in this Jurist commentary.)

It won’t be the rule from Caballes. So what is the rationale that decides this case?

Justice Scalia was on the scent when he reasoned with the government’s counsel about what might be done with binoculars.

“As I understand the law,” he said, “the police are entitled to use binoculars to look into the house if—if the residents leave the blinds open, right?”

Florida’s counsel agreed.

“But if they can’t see clearly enough from a distance, they’re not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point, are they?”

“They’re not, Your Honor.”

“Why isn’t it the same thing with the dog?”

Justice Kagan knows that it is. And she used Justice Scalia’s reasoning in Kyllo v. United States, the precedent that is on all fours with this case.

She recited from Kyllo: “ ‘We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.’” And she asked Florida’s counsel, “[W]hat part of that language does not apply in this case?”

“Franky’s nose is not technology,” he replied, referring to the dog. “It’s—he’s using—he’s availing himself of God-given senses in the way that dogs have helped mankind for centuries.”

The existence of dogs in human society for centuries might help the government if dogs had been used for drug-detection all this time. And then only if the question was what it is reasonable to expect.

What matters is that a drug-sniffing dog is indeed a form of sense-enhancing technology. Selected for its strong sense of smell, and trained to convey when particular odors are present, a drug-sniffing dog makes perceptible to law enforcement what is otherwise imperceptible.

And that is the very definition of searching. At least as Black’s Law Dictionary has it: “‘Search’ consists of looking for or seeking out that which is otherwise concealed from view.”

Police officers use dogs to search for drugs and other materials in which they are interested but which they cannot see by themselves. A drug-sniffing dog is a cuddly chromatograph.

And just now, quietly, you have seen at work the rationale that the Supreme Court should use to decide Florida v. Jardines. Was it a search to bring a drug-sniffing dog to the front door of a house? The Court should apply the plain meaning of the word “search” to the facts of the case that has come before it. There’s no need for doctrine at all.

The Fourth Amendment in the Supreme Court This Week

Prior to the development of trade and commerce, movable property was “not esteemed of so high a nature, nor paid so much regard to by the law,” Blackstone tells us in his commentaries on the laws of England. Such property in transit was routinely confiscated by authorities or tariffed at exorbitant rates.

When commercial relations expanded, the quantity and value of personal property increased, and the law “learned to conceive different ideas of it.” Legal protection for movable property increased.

In parallel to the growth of commerce in movables centuries ago, commerce in information is on the rise today. It may be time to “conceive different ideas of it” as well—different ideas that accord information similar protection. This is what a group of amici have encouraged the Supreme Court to do in a brief on an important privacy case being argued this week.

In Clapper v. Amnesty International, the Gun Owners Foundation, Gun Owners of America, Inc., the U.S. Justice Foundation, the Downsize D.C. Foundation, DownsizeDC.org, and the Conservative Legal Defense and Education Fund have argued that the Court should recognize a property interest in confidential communications. Doing so would more clearly establish the standing of the respondents in this case to challenge the global wiretapping program Congress established in the FISA Amendments Act of 2008.

William J. Olson, lead counsel on the brief, articulated the issues well in an email distributing it:

Our amicus brief in the Clapper case extrapolates from the court’s holding in Jones and identifies the property interests at stake in this case as confidential communications that are critical to the practice of law and of the enterprise of journalism. Using a property analysis, the citizens in Clapper have a protectable property interest in their electronic communications as they do in their written communications. Thus, even though plaintiffs are not “targeted” by the Government, the Government’s contention that their search and seizure of plaintiffs’ communications is only “incidental” is unavailing.

Jones v. United States, of course, is the case decided in January, in which government agents tracked a suspect’s car for four weeks using a GPS device without a valid warrant. The Supreme Court found unanimously that this violated the Fourth Amendment. My article in the most recent Cato Supreme Court Review (2011-12) analyzes the case, and you can get a taste of that analysis in the most recent Cato Policy Report (September/October 2012).

I also discussed the Fourth Amendment status of communications in the Cato Institute’s brief in Florida v. Jardines, which is also being argued in the Supreme Court this week. The Court found Fourth Amendment protection for postal mail in an 1877 case, but stumbled when faced with the next iteration of communications technology.

In the year this Court decided Ex Parte Jackson, both Western Union and the Bell Company began establishing voice telephone services. Gerald W. Brock, The Second Information Revolution 28 (Harvard University Press, 2003). Now, instead of written messages in the post, representations of the human voice itself began moving across distance, at light speed, in a way few people understood. This is the technology this Court confronted in Olmstead v. United States, 277 U.S. 438 (1928).

The Court handled this technological development poorly. Chief Justice William Taft fixed woodenly on the material things listed in the Fourth Amendment’s search and seizure clause. Wiretapping had not affected any of the defendants’ tangible possessions, he found, so it had not affected their Fourth Amendment rights. Olmstead, 277 U.S. at 464. In dissent Justice Butler noted how “contracts between telephone companies and users contemplate the private use” of telephone facilities. “The communications belong to the parties between whom they pass,” he said. Olmstead, 277 U.S. at 487 (Butler, J., dissenting). Cf. Ex Parte Jackson, 96 U.S. 727 (1877) (“Letters and sealed packages … are as fully guarded from examination and inspection … as if they were retained by the parties forwarding them in their own domiciles.”).

Florida v. Jardines is not a communications case. The issue is whether the sniff of a trained narcotics-detection dog at the front door of a house is a Fourth Amendment search requiring probable cause. Cato’s brief invites the Court to dispense with the unworkable “reasonable expectation of privacy” test, using the plain meaning of “search” instead.

Black’s law dictionary defines “search” as “looking for or seeking out that which is otherwise concealed from view.” Smells that only trained dogs can detect are indeed otherwise concealed from humans.

Familiar though ordinary pet dogs are, a trained dog is a chromatograph. The Court should follow the Fourth Amendment’s language and precedents like Kyllo v. United States to find that a drug-dog’s sniff is a search.

A companion to Jardines, Florida v. Harris, is being argued the same day. That case will examine the sufficiency of drug-dogs as evidence of wrongdoing, an issue that has not received careful examination in the past.

So it’s a big week for the Fourth Amendment in the Supreme Court. Stay tuned for developments.

Called it! Eleven Years Ago

What is this blog for, if not to let Cato scholars call out what smarty-pantses they are?

The Wall Street Journal reports on automobile license plates as the “new tracking frontier.”

For more than two years, the police in San Leandro, Calif., photographed Mike Katz-Lacabe’s Toyota Tercel almost weekly. They have shots of it cruising along Estudillo Avenue near the library, parked at his friend’s house and near a coffee shop he likes. In one case, they snapped a photo of him and his two daughters getting out of a car in his driveway. Mr. Katz-Lacabe isn’t charged with, or suspected of, any crime. Local police are tracking his vehicle automatically, using cameras mounted on a patrol car that record every nearby vehicle—license plate, time and location.

I didn’t have every detail, of course, but 11 years ago I noted the coming problem of license-plate tracking in testimony to a House Transportation subcommittee.

It was a little odd at the time, and still is, to talk about the privacy problem with license plates. But the emerging technology environment makes it essential to analyze and assess more carefully the information and identification demands that the government places on us.

[T]he requirement in all fifty states that cars must exhibit license plates linked to their owners is “anti-privacy” law, as would be a law requiring people to wear name tags in order to walk on public sidewalks. Mandatory license plates prevent citizens from exhibiting the expectation of privacy that Justice Harlan wrote about in Katz. Roughly speaking, they require people to expose their identities to police as a condition of driving on our roadways.

I expanded on “anti-privacy” law in my 2004 Cato Policy Analysis, “Understanding Privacy—and the Real Threats To It.”

We’re still grappling with the problem of privacy “in public.” The Supreme Court’s decision on GPS tracking in the Jones case is the most significant recent iteration of that. (Cato brief and related blog post; pre-decision posts: 1, 2, 3; post-decision posts: 4, 5, 6.) The latest Cato Supreme Court Review (also available digitally) includes an article of mine on the case. My latest thinking on Fourth Amendment privacy can by found in Cato’s brief in Florida v. Jardines.

It is possible to think systematically about privacy. Privacy is not just a morass of feelings about advancing technologies. Once one understands privacy (in its strongest sense) as the exercise of power to control information about oneself, one can see a decade ahead that license plates create privacy problems.

Pretty smart, huh? Yeah.

Fourth Amendment Gone to the Dogs—and to Lasers?!

For all their use by law enforcement across the country, drug-sniffing dogs haven’t gotten a lot of consideration in the Supreme Court. In a pair of cases next fall, though, the Court seems likely to give them some attention. Florida v. Harris is one of the cases it has taken. Harris will examine “[w]hether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.”

This week, we filed an amicus brief in the other drug-sniffing dog case, coming out of the same state. Florida v. Jardines asks whether the Fourth Amendment would be implicated if the government brought a drug-sniffing dog to the front door of your home seeking the scent of illegality.

What the Court has done with drug-sniffing dogs so far is not very good. We homed in on the major precedent, Caballes, to illustrate the weakness of the “reasonable expectation of privacy” test that originated in United States v. Katz (1967).

In Illinois v. Caballes, 543 U.S. 405 (2005), this Court did not apply Katz analysis. It did not examine (or even assume) whether Roy Caballes had exhibited a subjective expectation of privacy, the first step in the Katz test. Thus, the Court could not take the second step, examining its objective reasonableness.

Instead, the Caballes Court skipped forward to a corollary of the Katz test that the Court had drawn in United States v. Jacobsen, 466 U.S. 109 (1984): “Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Caballes, 543 U.S. at 408 (quoting Jacobsen, 466 U.S. at 123).

This is a logical extension of the Katz test, and one that helps reveal its weakness in maintaining the Fourth Amendment’s protections consistently over time. Now, instead of examining whether searches and seizures are reasonable, courts applying the Jacobsen/Caballes corollary can uphold any activity of government agents sufficiently tailored to discovering only crime.

What kinds of activities might those include? We talked about lasers.

A DHS program that might be directed not only at persons, but also at their houses and effects, is called the “Remote Vapor Inspection System” (or RVIS). RVIS “generates laser beams at various frequencies” to be aimed at a “target vapor.” Beams “reflected and scattered back to the sensor head” reveal “spectral ‘signatures’” that can be compared with the signatures of sought-after gasses and particulates. [citations omitted] Using RVIS, government agents might remotely examine the molecular content of the air in houses and cars, quietly and routinely explore the gasses exiting houses through chimneys and air ducts, and perhaps even silently inspect any person’s exhaled breath. If RVIS technology is programmed to indicate only on substances that indicate wrongdoing, the Jacobsen/Caballes corollary extinguishes the idea that its pervasive, frequent, and secret use would be a search.

If a dog sniff only reveals illegal activity, compromising no privacy interest, it’s not a search. So using lasers to check your breath for illegal substances is not a search either. We hope, obviously, that the Court will do away with this rule, which is so attenuated from both the language and the purpose of the Fourth Amendment.

Instead of determining whether a person has “reasonable expectations of privacy”—we called that doctrine a “jumble of puzzles”—courts should examine whether a “search” has occurred by seeing if police accessed something that was hidden from view.

When a person has used physics and law to conceal something from others, the Fourth Amendment and the Court should back those privacy-protective arrangements, breaching them only when there is probable cause and a warrant (or some exception to the warrant requirement).

To hold otherwise would be to allow the government to invade privacy not just using drug-sniffing dogs but using ever more sophisticated technology.