Florida v. Jardines: Warrantless search at front porch held unconstitutional, even without reasonable expectation of privacy.

On March 26, 2013, the Supreme Court of the United States decided that police use of a drug-sniffing dog on the front porch of a home to investigate the inside of the home was an unreasonable search within the Fourth Amendment.  It did not matter in Florida v. Jardines whether or not the occupant had a reasonable expectation of privacy in the interior odors that escaped to the front porch.  Neither did it matter whether or not the officers used their own senses or a device not generally available to the public, such as the drug-sniffing dog.

There was a simple baseline intrusion.  The Court first analyzed whether or not the government obtained information by intruding (trespassing) on persons, houses, papers, or effects.  (The Court called this the simple baseline or property-rights baseline set by the traditional property-based understanding of the Fourth Amendment.)  The Court ruled that the government did so intrude in Jardines, because the front porch of the home is a constitutionally protected area.  However, to rise to a Fourth Amendment search, the intrusion also needed to be unlicensed.

The intrusion was unlicensed.  The Court concluded that the intrusion in Jardines was unlicensed and therefore it was a Fourth Amendment search.  Put simply, the further police officers advance from the street toward the constitutionally protected front porch, the less questioning or sniffing they can do before they run into the Fourth Amendment.  I read no bright line, but a gradual reduction from the broader evidence-gathering that is permissible on the street to behavior that is appropriate for girl scouts, peddlers, neighbors, and others who properly appear on the front porch of a home.  In Jardines, the officer approached the front porch with a trained dog to investigate the inside of the home.  Had the officer approached not to search, but for a more neighborly purpose (difficult to show due to the presence of the drug-sniffing dog), the Court may have ruled the Jardines intrusion licensed, and therefore lawful.

No reasonable-expectations test.  Notably, the Court followed Jones (the automobile GPS tracker case) and held that in Jardines it did not matter whether or not the occupant of the home had a reasonable expectation of privacy in the odors that escaped past the front door to the front porch.  The simple baseline test alone is sufficient to establish a Fourth Amendment search, with or without reasonable expectations of privacy.  Jardines did not require the Katz reasonable-expectations test because Jardines was an unlicensed intrusion under the simple baseline.  Since the Katz test is in addition to the traditional property-based understanding and not a substitute for that simple baseline, it appears that the Katz argument for “a subjective expectation of privacy that society recognizes as reasonable” is appropriate where the simple baseline does not apply (or may not prevail).

No Kyllo test.  The Court also held that the Kyllo test was irrelevant in Jardines, i.e., the Court’s conclusion would be that the unlicensed intrusion in Jardines was a Fourth Amendment search, whether or not the drug-sniffing dog was a tool generally available to the public.  Justice Kagan also addressed Kyllo in her concurring opinion (see below).

The majority opinion by Justice Scalia [also] provided that:

  • The front porch of the home is surely part of its constitutionally protected curtilage.
  • Police “leave to gather information” is diminished as the officer enters a constitutionally protected area.
  • Limited license to approach the front door.  Social norms provide that the bell or knocker on the front door is an equal license to all, including police, to approach the front door by the marked path, knock, and then leave promptly if not invited to linger. But the scope of any license is limited to a particular area and a specific purpose. The license implied by the bell or knocker on the front door is not generally understood to include a police search.
  • Objectively reasonable search.  Whether the officer’s conduct was an objectively reasonable search depended on: (1) his purpose; and (2) license to enter the porch for that specific purpose.  The officer’s behavior indicated a purpose to search, but he had no [implied] license to search on the front porch.  Thus, the officer’s conduct was not an objectively reasonably search.

Justice Kagan wrote in her concurring opinion that she would have reached the same holding as the majority but with a focus on privacy interests inside the home instead of property rights.  As in Kyllo, the police in Jardines used a device not in general public use (i.e., the trained dog), without a warrant, and absent exigent circumstances.

Justice Alito dissented.  He would have found no Fourth Amendment search due to no reasonable expectation of privacy in odors that emanate from a house.  In addition, Justice Alito questioned whether the majority had sufficiently distinguished another recent opinion of the Court that police do not engage in a Fourth Amendment search when they “knock and talk” at the front door of a home with the intent to gather evidence from the discussion while applying their senses of smell, hearing, and sight.