Florida v. Jardines: How is the Supreme Court going to clean up its drug sniffing dog mess?
posted by Erica Goldberg
Briefs and amicus briefs are being filed in a Supreme Court case that could have a major impact on Fourth Amendment jurisprudence in order to resolve a major mess. The question in Florida v. Jardines is whether a police officer can use a drug sniffing dog at someone’s door to determine if there is contraband inside the home. The mess is a result of the tension between the Supreme Court’s holdings, the reality of using drug sniffing dogs, and our intuitions about privacy.
First, the Supreme Court has held that, when performed in a minimally invasive way, like at an airport or outside one’s car, the use of a drug detection dog is not considered a “search” that implicates the Fourth Amendment or requires any suspicion. This is largely due to the fact that the use of drug sniffing dogs is considered a “binary search,” which either detects or fails to detect the presence of contraband. Because the Court has held in no uncertain terms that we have no legitimate expectation of privacy in contraband (I’m not as certain about this proposition when considering the history and purpose of the Fourth Amendment), a device or dog that detects only whether contraband is present or absent does not invade any expectations of privacy.
However, as Professor Leslie Shoebotham’s amici curiae brief (detailed on EvidenceProf blog) argues, drug sniffing dogs often detect the presence of molecular compounds found in both contraband and innocent items, such as vinegar or soap. Another way of framing this is that drug sniffing dogs are not binary because of their tendency to false positive. And there we have Mess Number 1: the Supreme Court’s drug sniffing dog jurisprudence is based on the false idea that the use of a drug sniffing dog is not a search because it detects only the presence or absence of contraband. It is unlikely that the Supreme Court in Jardines will reverse its firmly established position that the use of drug sniffing dogs is not a search. Instead, the Court will likely rely on the holding that a dog binarily alerts or does not alert to the presence of contraband, but will treat as a separate question whether a dog is accurate enough in its alert to give the police probable cause to obtain a warrant and conduct a full search of the home.
Thus, Mess Number 1 is more easily resolved than Mess Number 2, which concerns our intuition. It FEELS wrong for the police to march up to random homes and sniff doors with a drug detection dog. Yet, if the use of a drug detection dog does not actually infringe upon privacy rights or require any suspicion, that’s exactly what could happen. How is the Supreme Court going to distinguish a car or a suitcase from a house if the use of a dog is not a search at all?
Professor Orin Kerr, at The Volokh Conspiracy, proposes an interesting possible solution. Without evaluating likely outcomes or merits, he believes that the Court could hold that the home is a private area that cannot be invaded by drug sniffing dogs. Even if the dogs themselves are not intrusive generally, the door of a home cannot be sniffed because of its sanctity. The problem with this solution is that courts uniformly hold that we impliedly consent to allow individuals, police officers, mailmen, etc. to knock on our doors with no trespass to our privacy rights. Police can walk up to and knock on our doors without implicating the Fourth Amendment. So, according to Professor Kerr, this implied consent would have to be construed on a specific level of generality, such that the homeowner consents to visits by the police (and mailmen), but not sniffs by drug sniffing dogs.
I’m not convinced that this creative solution would clean up the drug sniffing dog mess; in fact, it might wreak more havoc on the jurisprudence. Much of Fourth Amendment jurisprudence hinges on the fact that once you expose something to the public, you lose all expectations of privacy and Fourth Amendment protection. If you admit to committing a crime to a friend, and that friend is wearing a wire, there is no expectation of privacy in that conservation. Of course, you did not consent for the police to become aware of that conversation, it was intended only for your friend, but the jurisprudence does not usually parse out to whom you intended to expose a private item. Similarly, if you place garbage on your street for the trash collector, you have forfeited an expectation of privacy against the police rifling through that garbage. It is unclear, based on the jurisprudence, why an individual could forfeit privacy in his front door with respect to the police, but not with respect to their canine friends.
A concurrence by Justice Sotomayor in United States v. Jones has questioned this logic, however. I’d like to see the Court truly grapple with whether you can voluntarily expose information (or property) to some third parties without forfeiting your expectations of privacy with respect to others.
Although I am not usually one to propose pragmatic instead of principled doctrinal solutions, my forthcoming paper on quantifying probable cause argues that, if you force police to measure field accuracy rates of drug sniffing dogs, they will be less likely to use these dogs randomly on largely innocent populations. Thus, the concern about drug dogs roaming through neighborhoods may be overstated in practice, although still theoretically alarming. I will post a link to this article in a couple of weeks.