The question is how to balance law enforcement interests against the right that the Fourth Amendment gives citizens to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
In last week’s takedown of a legendary drug-sniffing police dog named Franky, it was an unlikely sounding coalition of conservatives and liberals unwilling to defer to law enforcement.
Conservative Justices Antonin Scalia and Clarence Thomas joined with the court’s liberal women — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — to say that it constituted a “search” under the Fourth Amendment for two police officers to accompany Franky to Joelis Jardines’s front door in Miami. They had received an anonymous tip that Jardines had turned his abode into a full-time “grow house” for marijuana.
The cops used Franky’s “alert” at the door as probable cause for getting a search warrant.
The decision delivered last Tuesday was one of the court’s most readable of the term: Dogs seem to bring out the wit in Supreme Court justices.
Scalia quoted an ancient legal doctrine that “holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.”
In Miami, Scalia said, “it is undisputed that the detectives had all four of their feet and all four of their companion’s firmly planted on the constitutional protected extension of Jardines’ home.”
There is an implicit license for a visitor to come to someone’s front door, Scalia said, and “it is generally managed without incident by the nation’s Girl Scouts and trick-or-treaters.”
But while it might be routine to find a visitor knocking at the door, Scalia wrote, “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.”
Kagan wrote separately to say she thought it was an easy decision for courts to throw out the evidence against Jardines, and would base her decision “on privacy as well as property grounds.”
The court’s fourth liberal, Justice Stephen G. Breyer, was on the other side. He and conservatives Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have been more willing to defer to law enforcement.
Alito wrote the dissent to the case, saying the majority’s decision was “based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence.”
He said police have always had the right to go to a person’s front door, and it was no different in this context simply because the officer was accompanied by a dog on a leash. Alito accused Scalia of hyping the whole event: all told, he said, it only took a minute or two.