Privacy, Property, and the Drug War

While it is likely to attract little attention given today's epochal same-sex marriage arguments, the Supreme Court decided an important Fourth Amendment case on Tuesday. For the second time this year, the Supreme Court issued a ruling in a case involving drug-sniffing dog. This time, however, the Court did not allow the Fourth Amendment to be trumped by the War On (Some Classes of People Who Use Some) Drugs.

Jardines v. Florida involved a home search that uncovered marijuana plants, leading to a conviction. The police received an unverified tip that marijuana was being grown in Jardines's residence, but presumably did not believe that this tip was sufficient to establish the "probable case" required by the Fourth Amendment to obtain a search warrant. To obtain a warrant, the police took a drug-sniffing dog, who indicated that it had found the scent of illegal drugs. The findings of the dog's actions were used to obtain a search warrant to search Jardines's house, which led to the uncovering of the marijuana plants and his subsequent prosecution.

The question in this case is whether the dog sniffing around the outside of Jardines's house constituted a "search" within the meaning of the Fourth Amendment. To state the obvious, evidence obtained in a search cannot be used to retroactively establish the probable cause necessary to obtain a search warrant. The state of Florida argued that because the dog did not enter the house but merely searched the exterior that was visible from the street, the dog sniffing did not constitute a search. In a 5-4 opinion, the Supreme Court rejected this specious argument. Justices Scalia and Thomas—whose sporadic commitment to textualism does sometimes surface in Fourth Amendment cases—provided the swing votes, with the former writing for the majority.

There was, however, an interesting distinction drawn between Justice Scalia's opinion and the concurring opinion written by Justice Kagan (joined by Justices Sotomayor and Ginsburg.) Justice Scalia focused on the violation of Jardines's property rights. "[W]hen it comes to the Fourth Amendment," Scalia argues, "the home is first among equals." Given that the area "immediately surrounding and associated with the home" has long been considered part of the home for Fourth Amendment purposes, there can be little question that the sniffing dog was a "search" in Fourth Amendment terms. The focus on property rights, Scalia argues, has the "virtue" of "keep[ing] easy cases easy." A trespass on private property is clearly a "search." The majority did not technically declare the search unconstitutional, although it is hard to imagine that the lower courts will find the "exigent circumstances" that could justify a search without a valid warrant.

Kagan's concurrence did not dispute the accuracy of Scalia's analysis, and all three concurring justices joined Scalia's opinion. However, Kagan argued that the dog sniffing should have been declared a "search" on other grounds as well: privacy. Under longstanding precedent, the Fourth Amendment protects individuals in cases where they have a reasonable "expectation of privacy." Kagan argues persuasively that Jardines certainly had such an expectation. If someone were to peer into your home with high-powered binoculars, Kagan argues, has he also invaded your “reasonable expectation of privacy,” by nosing into intimacies you sensibly thought protected from disclosure? Yes, of course, he has done that too." The Court didn't need to focus solely on property rights, Kagan correctly points out: "a focus on Jardines’ privacy interests would make an 'easy cas[e] easy' twice over."

In this case, the distinction between property rights and privacy is academic, but in other cases it isn't. Scalia and Thomas's Fourth Amendment provides robust protection to those who own property, but much less to those who don't. The Fourth Amendment of Kagan, Sotomayor, and Ginsburg provides more protection going forward to the rights of those who don't own property, an important consideration given that poorer people are much more likely to be targets of police searches.

But Scalia and Thomas's Fourth Amendment is certainly preferable to the Fourth Amendment of the dissenters, which provide adequate protection to neither privacy nor property. The dissent was written by Justice Alito, whose civil liberties record has been (as was easily foreseeable at the time of his nomination) abominable. He was joined by Chief Justice Roberts and Justice Kennedy, who while more moderate than Alito also have poor civil liberties records. And unsurprisingly but still dismayingly joining the dissent was Stephen Breyer, the Clinton nominee who is often heterodox on civil liberties cases in the opposite direction from Scalia and Thomas.

Any decision that slows the drug war's remorseless assault on the civil liberties of Americans is welcome. But it's worth remembering that it's not just the privacy rights of property owners that are under attack.

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