In the “Surveillance in the City” post I talked about how Supreme Court values privacy concerning the home more than privacy away from home in thinking about the potential development of a drug-detecting streetlamp.   The past March the Court had the opportunity to provide further guidance regarding homes, drugs, and surveillance and disappointingly failed to strengthen privacy rights.  In Florida v. Jardines, the Court ruled that a narcotics-detecting dog could not be used to sniff the porch of a home without a proper warrant. On its face the ruling is not too surprising since the Court does have a long history of strongly protecting privacy in and around the home.  However, two aspects are both surprising and alarming:  how little the decision does to enhance privacy rights and the way the justices fell on the issues of trespass and privacy.  This was a particularly interesting case because it required the more extreme justices to reconcile the competing facets of their political beliefs.  The conservative justices had to weigh their love of crime-busting with their love of privacy just as the liberal justices had to weigh their love of government paternalism with their love of civil liberties.  Only two of the more conservative justices, Scalia and Thomas, agreed that a proper warrant was needed.  They were joined by the more liberal justices Kagan, Sotomayor, and Ginsburg.  This odd alliance produced a disappointing result.

The face of the decision appears to extend privacy rights by enhancing our reasonable expectation of privacy to include the use of illegal drugs in the home.  Unfortunately, the case (authored by Scalia) was not based on privacy, but on trespass.   The decision is concerning because it hints at a shift in the Court towards crime busting and government at the expense of privacy.  The majority felt that under traditional trespass law it was reasonable for anyone to walk along the designated path to one’s front door – the path itself is an invitation for someone to knock on our door.  However, the path is not an invitation for someone to come to our door with a dog for the purpose of uncovering illegal drugs.  Rather than declaring that we have a reasonable expectation of privacy concerning our use of illegal drugs inside the home, the Court decided there was no need to explore privacy implication since a decision could be made solely based on trespass.  This is a great way for Scalia to continue his fight against drugs while also appearing to uphold the conservative fight for privacy.

Fortunately, in a concurring opinion, Justice Kagan, along with Justices Ginsburg and Sotomayor, said the case could be decided on either trespass or privacy grounds.  A police officer using a narcotics-detecting dog is similar to police, or anyone for that matter, using any sensory-enhancing device (binoculars, thermal-imaging, etc) to uncover what we are doing inside our homes.  This seems to be addressing and enhancing prior privacy case law that dealt with the surveillance of homes (see Surveillance in the City).  Justice Kagan acknowledges that we have a reasonable expectation of privacy in our homes that extends to illegal drug use and that narcotic-detecting dogs are similar to any other sensory-enhancing device.   This opinion enhances privacy rights, but since it’s just a concurring opinion it carries little legal precedence.

The dissent felt no warrant was needed because police have a license to approach our door (as the majority also believes) and it makes no difference whether they bring a dog.  This does not violate trespass law because a path to our front door invites humans and dogs – dogs are so ubiquitous that we should expect someone may bring a dog with them when they approach our door.  The dissent seems to ignore the fact that this isn’t just any dog, but a dog specifically trained to detect a crime.  This is particularly interesting since in a unanimous decision in Florida v. Harris (argued alongside Jardines) the Court said the detection of drugs by narcotic-detecting dogs is enough to provide probable cause for the search of a car.  So, according to the dissent, in one instance narcotic-detecting dogs are highly sophisticated and reliable and in another instance they are just ordinary dogs we expect to come onto our property.  With respect to privacy concerns, the dissent said this practice does not violate our reasonable expectation of privacy because we should expect that a smell emanating from our home will be detected by someone.  Here the dissent ignores a line of prior cases that hold nearly the exact opposite.  In Kyllo, the Court held that police could not use sensory-enhancing devices to read heat emanating from a house.  The dissent distinguishes this case by declaring that dogs have been used for many years and are nothing like the sensory-enhancing devices used in Kyllo because they are simply detecting something that a normal human could smell.

The Court seems to be moving in the direction of allowing police to use surveillance tactics closer and closer to the home.  This does not bode well for those who believe the drug-detecting streetlights are an invasion of privacy.  In Jardin, the Court had the opportunity to enhance our reasonable expectation of privacy in the home to include illegal drug use, but declined.   They also had the opportunity to clearly state that narcotic-detecting dogs are similar to any other sensory-enhancing device with respect to privacy and our homes, but declined.   Perhaps future cases dealing with surveillance (NSA?, drones?) will provide further guidance on this issue and provide some insight into what motivates the Court.