March 27, 2013
Florida v. Jardines, 569 U. S. ____ (2013).

You likely received a notification through my app on Tuesday alerting you of the SCOTUS ruling in Florida v. Jardines prohibiting police from using K-9 alerts within the curtilage of a home as probable cause to secure a search warrant. But the impact is far more significant and has less to do with the dog. In U.S. v. Jones, 565 US ___, 132 S.Ct. 945 (2012), the U.S. Supreme Court ruled there are two ways in which the government’s conduct may constitute a ‘search’ implicating the Fourth Amendment. First, a ‘search’ occurs when the person can claim a justifiable, reasonable or legitimate expectation of privacy that has been invaded by government action. Second, a Fourth Amendment ‘search’ also occurs when the government, in an attempt to obtain information, “trespasses” on any of the items specifically listed in the Fourth Amendment (“persons, houses, papers and effects”). This constitutes a “search,” whether or not there’s any infringement of the suspect’s legitimate expectation of privacy.

The decision in Jardines magnifies the Jones reinstated trespassory (intrusion) test and even took it a step further by defining where in the curtilage an officer (or dog) can be without trespassing. Where, you might ask? Only where uninvited strangers may go. No more peeking into the backyard, in windows, or even standing on the front porch. Jardines makes it clear that “At the Fourth Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ The area ‘immediately surrounding and associated with the home’—the curtilage—is ‘part of the home itself for Fourth Amendment purposes.’ The officers entered the curtilage here: The front porch is the classic exemplar of an area ‘to which the activity of home life extends.’ The officers’ entry was not explicitly or implicitly invited. Officers need not ‘shield their eyes’ when passing by a home ‘on public thoroughfares,’ but ‘no man can set his foot upon his neighbor’s close without his leave.’ A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is ‘no more than any private citizen might do.’ But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search.”

Jardines mentioned exceptions that would allow an officer to enter the curtilage:
  • Law enforcement officers need not “shield their eyes” when passing by the home “on public thoroughfares,” an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas.
  • Visual observation of the home from “public navigable airspace” so as long as it is done “in a physically nonintrusive manner.”
  • An implied “license” to trespass onto the curtilage exists when a knocker on the front door exists. “[T]he knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. To find a visitor knocking on the door is routine (even if sometimes unwelcome); 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. The scope of a license— express or implied—is limited not only to a particular area but also to a specific purpose.
  • Anywhere an unknown private citizen would be permitted to be present considering the social norms of that area. “A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.”
I should note, the Jardines ruling was a 5-4 vote. You can read the Slip Opinion here:

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