Florida v. Jardines
Florida v. Jardines
Opinion
*3 *1413 We consider whether using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home is a "search" within the meaning of the Fourth Amendment.
I
In 2006, Detective William Pedraja of the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines. One month later, the Department and the Drug Enforcement Administration sent a joint surveillance team to Jardines' home. Detective Pedraja was part of that team. He watched the home for fifteen minutes and saw no vehicles in the driveway or activity around the home, and could not see inside because the blinds were drawn. Detective Pedraja then approached Jardines' home accompanied by Detective Douglas Bartelt, a trained canine handler who had just arrived *4 at the scene with his drug-sniffing dog. The dog was trained to detect the scent of marijuana, cocaine, heroin, and several other drugs, indicating the presence of any of these substances through particular behavioral changes recognizable by his handler.
Detective Bartelt had the dog on a six-foot leash, owing in part to the dog's "wild" nature, App. to Pet. for Cert. A-35, and tendency to dart around erratically while searching. As the dog approached Jardines' front porch, he apparently sensed one of the odors he had been trained to detect, and began energetically exploring the area for the strongest point source of that odor. As Detective Bartelt explained, the dog "began tracking that airborne odor by ... tracking back and forth," engaging in what is called "bracketing," "back and forth, back and forth." Id., at A-33 to A-34. Detective Bartelt gave the dog "the full six feet of the leash plus whatever safe distance [he could] give him" to do this-he testified that he needed to give the dog "as much distance as I can." Id., at A-35. And Detective Pedraja stood back while this was occurring, so that he would not "get knocked over" when the dog was "spinning around trying to find" the source. Id., at A-38.
After sniffing the base of the front door, the dog sat, which is the trained behavior upon discovering the odor's strongest point. Detective Bartelt then pulled the dog away from the door and returned to his vehicle. He left the scene after informing Detective Pedraja that there had been a positive alert for narcotics.
On the basis of what he had learned at the home, Detective Pedraja applied for and received a warrant to search the residence. When the warrant was executed later that day, Jardines attempted to flee and was arrested; the search revealed marijuana plants, and he was charged with trafficking in cannabis.
At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable
*5
search. The trial court granted the motion, and the Florida Third District Court of Appeal reversed. On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court's decision to suppress, holding (as relevant here) that the use of the trained narcotics dog to investigate Jardines' home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.
II
The Fourth Amendment provides in relevant part that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When "the Government obtains information by physically intruding" on persons, houses, papers, or effects, "a 'search' within the original meaning of the Fourth Amendment" has "undoubtedly occurred."
United States v. Jones,
565 U.S. ----, ----, n. 3,
That principle renders this case a straightforward one. The officers were gathering information in an area belonging *6 to Jardines and immediately surrounding his house-in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.
A
The Fourth Amendment "indicates with some precision the places and things encompassed by its protections": persons, houses, papers, and effects.
Oliver v. United States,
But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment's "very core" stands "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."
Silverman v. United States,
We therefore regard the area "immediately surrounding and associated with the home"-what our cases call the curtilage-as "part of the home itself for Fourth Amendment purposes."
Oliver,
While the boundaries of the curtilage are generally "clearly marked," the "conception defining the curtilage" is at any rate familiar enough that it is "easily understood from our daily experience."
Oliver,
B
Since the officers' investigation took place in a constitutionally protected area, we turn to the question of whether it was accomplished through an unlicensed physical intrusion.
1
While law enforcement officers need not "shield their eyes" when passing by the home "on public thoroughfares,"
Ciraolo,
"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."
McKee v. Gratz,
*1416
Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is "no more than any private citizen might do."
Kentucky v. King,
563 U.S. ----, ----,
*9 But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that . An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. 3 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. Consent at a traffic stop to an officer's checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search. 4
*10
The State points to our decisions holding that the subjective intent of the officer is irrelevant. See
Ashcroft v. al-Kidd,
563 U.S. ----,
III
The State argues that investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest. The State cites for authority our decisions in
United States v. Place,
Just last Term, we considered an argument much like this.
Jones
held that tracking an automobile's whereabouts using a physically-mounted GPS receiver is a Fourth Amendment search. The Government argued that the
Katz
standard "show[ed] that no search occurred," as the defendant had "no 'reasonable expectation of privacy' " in his whereabouts on the public roads,
*11
Jones,
565 U.S., at ----, 132 S.Ct., at 950 -a proposition with at least as much support in our case law as the one the State marshals here. See,
e.g.,
United States v. Knotts,
Thus, we need not decide whether the officers' investigation of Jardines' home violated his expectation of privacy under Katz . One virtue of the Fourth Amendment's property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines' property to gather evidence is enough to establish that a search occurred.
For a related reason we find irrelevant the State's argument (echoed by the dissent) that forensic dogs have been commonly used by police for centuries. This argument is apparently directed to our holding in
Kyllo v. United States,
* * *
The government's use of trained police dogs to investigate the home and its immediate *1418 surroundings is a "search" *12 within the meaning of the Fourth Amendment. The judgment of the Supreme Court of Florida is therefore affirmed.
It is so ordered.
Justice KAGAN, with whom Justice GINSBURG and Justice SOTOMAYOR join, concurring.
For me, a simple analogy clinches this case-and does so on privacy as well as property grounds. A stranger comes to the front door of your home carrying super-high-powered binoculars. See
ante,
at 1416, n. 3. He doesn't knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home's furthest corners. It doesn't take long (the binoculars are really very fine): In just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one. Has your "visitor" trespassed on your property, exceeding the license you have granted to members of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your "reasonable expectation of privacy," by nosing into intimacies you sensibly thought protected from disclosure?
Katz v. United States,
That case is this case in every way that matters. Here, police officers came to Joelis Jardines' door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equipment they used was animal, not mineral. But contra the dissent, see
post,
at 1420 (opinion of ALITO, J.) (noting the ubiquity of dogs in American households), that is of no significance in determining whether a search occurred. Detective Bartelt's dog was not your neighbor's pet, come to your porch on a leisurely stroll. As this Court discussed earlier this Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information
*13
to their human partners. See
Florida v. Harris,
568 U.S. ----,
The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines' privacy interests. A decision along those lines would have looked ... well, much like this one. It would have talked about " 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' "
Ante,
at 1414 (quoting
Silverman v. United States,
It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property "naturally enough influence[s]" our "shared social expectations" of what places should be free from governmental incursions.
Georgia v. Randolph,
I can think of only one divergence: If we had decided this case on privacy grounds, we would have realized that
Kyllo v. United States,
"Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant."Ibid.
That "firm" and "bright" rule governs this case: The police officers here conducted a search because they used a "device ... not in general public use" (a trained drug-detection dog) to "explore details of the home" (the presence of certain substances)
*15 that they would not otherwise have discovered without entering the premises.
And again, the dissent's argument that the device is just a dog cannot change the equation. As
Kyllo
made clear, the "sense-enhancing" tool at issue may be "crude" or "sophisticated," may be old or new (drug-detection dogs actually go back not "12,000 years" or "centuries,"
post,
at 1420, 1424, 1428, but only a few decades), may be either smaller or bigger than a breadbox; still, "at least where (as here)" the device is not "in general public use," training it on a home violates our "minimal expectation of privacy"-an expectation "that
exists,
and that is acknowledged to be
reasonable
."
Justice ALITO, with whom THE CHIEF JUSTICE, Justice KENNEDY, and Justice BREYER join, dissenting.
The Court's decision in this important Fourth Amendment case is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence.
The law of trespass generally gives members of the public a license to use a walkway to approach the front door of a house and to remain there for a brief time. This license is not limited to persons who intend to speak to an occupant or who actually do so. (Mail carriers and persons delivering packages and flyers are examples of individuals who may lawfully approach a front door without intending to converse.) Nor is the license restricted to categories of visitors whom an occupant of the dwelling is likely to welcome; as the Court acknowledges, this license applies even to "solicitors, hawkers and peddlers of all kinds." Ante, at 1415 (internal quotation marks omitted). And the license even extends to police officers who wish to gather evidence against an occupant (by asking potentially incriminating questions).
According to the Court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent's house by his dog, Franky. Where is the authority evidencing such a rule? Dogs have been domesticated for about 12,000 years; 1 they were ubiquitous in both this country and Britain at the time of the adoption of the Fourth Amendment; 2 and their acute sense of smell has *17 been used in law enforcement for centuries. 3 Yet the Court has been unable to find a single case-from the United States or any other common-law nation-that supports the rule on which its decision is based. Thus, *1421 trespass law provides no support for the Court's holding today.
The Court's decision is also inconsistent with the reasonable-expectations-of-privacy test that the Court adopted in
Katz v. United States,
For these reasons, I would hold that no search within the meaning of the Fourth Amendment took place in this case, and I would reverse the decision below.
I
The opinion of the Court may leave a reader with the mistaken impression that Detective Bartelt and Franky remained on respondent's property for a prolonged period of time and conducted a far-flung exploration of the front yard. See ante, at 1414 ("trawl for evidence with impunity"), 1416 ("marching his bloodhound into the garden"). But that is not what happened.
Detective Bartelt and Franky approached the front door via the driveway and a paved path-the route that any visitor would customarily use 4 -and Franky was on the kind of leash that any dog owner might employ. 5 As Franky approached *18 the door, he started to track an airborne odor. He held his head high and began "bracketing" the area (pacing back and forth) in order to determine the strongest source of the smell. App. 95-96. Detective Bartelt knew "the minute [he] observed" this behavior that Franky had detected drugs. Id., at 95. Upon locating the odor's strongest source, Franky sat at the base of the front door, and at this point, Detective Bartelt and Franky immediately returned to their patrol car. Id., at 98.
A critical fact that the Court omits is that, as respondent's counsel explained at oral argument, this entire process-walking down the driveway and front path to the front door, waiting for Franky to find the strongest source of the odor, and walking back to the car-took approximately a minute or two. Tr. of Oral Arg. 57-58. Thus, the amount of time that Franky and the detective remained at the front porch was even less. The Court also fails to mention that, while Detective Bartelt apparently did not personally smell the odor of marijuana coming from the house, another officer who subsequently stood on the front porch, Detective Pedraja, did notice that smell and was able to identify it. App. 81.
II
The Court concludes that the conduct in this case was a search because Detective Bartelt exceeded the boundaries of the license to approach the house that is recognized by the law of trespass, but the Court's interpretation of the scope of that license is unfounded.
A
It is said that members of the public may lawfully proceed along a walkway leading to the front door of a house because
*1422
custom grants them a license to do so.
Breard v. Alexandria,
Of course, this license has certain spatial and temporal limits. A visitor must stick to the path that is typically used to approach a front door, such as a paved walkway. A visitor cannot traipse through the garden, meander into the backyard, or take other circuitous detours that veer from the pathway that a visitor would customarily use. See,
e.g.,
*20
Robinson v. Virginia,
Nor, as a general matter, may a visitor come to the front door in the middle of the night without an express invitation. See
State v. Cada,
Similarly, a visitor may not linger at the front door for an extended period. See
*1423
As I understand the law of trespass and the scope of the implied license, a visitor who adheres to these limitations is *21 not necessarily required to ring the doorbell, knock on the door, or attempt to speak with an occupant. For example, mail carriers, persons making deliveries, and individuals distributing flyers may leave the items they are carrying and depart without making any attempt to converse. A pedestrian or motorist looking for a particular address may walk up to a front door in order to check a house number that is hard to see from the sidewalk or road. A neighbor who knows that the residents are away may approach the door to retrieve an accumulation of newspapers that might signal to a potential burglar that the house is unoccupied.
As the majority acknowledges, this implied license to approach the front door extends to the police. See
ante,
at 1415. As we recognized in
Kentucky v. King,
563 U.S. ----,
*22
Cada,
B
Detective Bartelt did not exceed the scope of the license to approach respondent's front door. He adhered to the customary path; he did not approach in the middle of the night; and he remained at the front door for only a very short period (less than a minute or two).
The Court concludes that Detective Bartelt went too far because he had the " objectiv[e] ... purpose to conduct a search." Ante, at 1417 (emphasis added). What *1424 this means, I take it, is that anyone aware of what Detective Bartelt did would infer that his subjective purpose was to gather evidence. But if this is the Court's point, then a standard "knock and talk" and most other police visits would likewise constitute searches. With the exception of visits to serve warrants or civil process, police almost always approach homes with a purpose of discovering information. That is certainly the objective of a "knock and talk." The Court offers no meaningful way of distinguishing the "objective purpose" of a "knock and talk" from the "objective purpose" of Detective Bartelt's conduct here.
The Court contends that a "knock and talk" is different because it involves talking, and "all are invited" to do that.
Ante,
at 1416, n. 4 (emphasis deleted). But a police officer who approaches the front door of a house in accordance with the limitations already discussed may gather evidence by means other than talking. The officer may observe items in plain view and smell odors coming from the house.
Ciraolo, supra, at 213,
*23 What the Court must fall back on, then, is the particular instrument that Detective Bartelt used to detect the odor of marijuana, namely, his dog. But in the entire body of common-law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass. G. Williams, Liability for Animals 136-146 (1939); J. Ingham, A Treatise on Property in Animals Wild and Domestic and the Rights and Responsibilities Arising Therefrom 277-278 (1900). Cf. B. Markesinis & S. Deakin, Tort Law 511 (4th ed. 1999).
The Court responds that "[i]t is not the dog that is the problem, but the behavior that here involved use of the dog." Ante, at 1416, n. 3. But where is the support in the law of trespass for this proposition? Dogs' keen sense of smell has been used in law enforcement for centuries. The antiquity of this practice is evidenced by a Scottish law from 1318 that made it a crime to "disturb a tracking dog or the men coming with it for pursuing thieves or seizing malefactors." K. Brown et al., The Records of the Parliaments of Scotland to 1707, (St Andrews, 2007-2013), online at http://www.rps.ac. uk/mss/1318/9. If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years. But the Court has found none.
For these reasons, the real law of trespass provides no support for the Court's holding today. While the Court claims that its reasoning has "ancient and durable roots," ante, at 1414, its trespass rule is really a newly struck counterfeit.
III
The concurring opinion attempts to provide an alternative ground for today's decision, namely, that Detective Bartelt's conduct violated respondent's reasonable expectations of privacy
*24
. But we have already rejected a very similar, if not identical argument, see
Illinois v. Caballes,
Consider the situation from the point of view of the occupant of a building in which marijuana is grown or methamphetamine is manufactured. Would such an occupant reason as follows? "I know that odors may emanate from my building and that atmospheric conditions, such as the force and direction of the wind, may affect the strength of those odors when they reach a spot where members of the public may lawfully stand. I also know that some people have a much more acute sense of smell than others, 6 and I have no idea who might be standing in one of the spots in question when *25 the odors from my house reach that location. In addition, I know that odors coming from my building, when they reach these locations, may be strong enough to be detected by a dog. But I am confident that they will be so faint that they cannot be smelled by any human being." Such a finely tuned expectation would be entirely unrealistic, and I see no evidence that society is prepared to recognize it as reasonable.
In an attempt to show that respondent had a reasonable expectation of privacy in the odor of marijuana wafting from his house, the concurrence argues that this case is just like
Kyllo v. United States,
Contrary to the interpretation propounded by the concurrence,
Kyllo
is best understood as a decision about the use of new technology. The
Kyllo
Court focused on the fact that the thermal imaging device was a form of "sense-enhancing technology" that was "not in general public use," and it expressed concern that citizens would be "at the mercy of advancing technology" if its use was not restricted.
*1426
The concurrence suggests that a
Kyllo
-based decision would be "much like" the actual decision of the Court, but that is simply not so. The holding of the Court is based on what the Court sees as a " 'physical intrusion of a constitutionally protected area.' "
Ante,
at 1414 (quoting
*26
United States v. Knotts,
The concurrence's
Kyllo
-based approach would have a much wider reach. When the police used the thermal imaging device in
Kyllo,
they were on a public street,
IV
The conduct of the police officer in this case did not constitute a trespass and did not violate respondent's reasonable expectations of privacy. I would hold that this conduct was not a search, and I therefore respectfully dissent.
At oral argument, the State and its amicus the Solicitor General argued that Jardines conceded in the lower courts that the officers had a right to be where they were. This misstates the record. Jardines conceded nothing more than the unsurprising proposition that the officers could have lawfully approached his home to knock on the front door in hopes of speaking with him. Of course, that is not what they did.
With this much, the dissent seems to agree-it would inquire into " 'the appearance of things,' " post, at 1422 (opinion of ALITO, J.), what is "typica[l]" for a visitor, ibid., what might cause "alarm" to a "resident of the premises," ibid., what is "expected" of "ordinary visitors," ibid., and what would be expected from a " 'reasonably respectful citizen,' " post, at 1423. These are good questions. But their answers are incompatible with the dissent's outcome, which is presumably why the dissent does not even try to argue that it would be customary, usual, reasonable, respectful, ordinary, typical, nonalarming, etc. , for a stranger to explore the curtilage of the home with trained drug dogs.
The dissent insists that our argument must rest upon "the particular instrument that Detective Bartelt used to detect the odor of marijuana"-the dog. Post, at 1424. It is not the dog that is the problem, but the behavior that here involved use of the dog. We think a typical person would find it " 'a cause for great alarm' " (the kind of reaction the dissent quite rightly relies upon to justify its no-night-visits rule, post, at 1422) to find a stranger snooping about his front porch with or without a dog. The dissent would let the police do whatever they want by way of gathering evidence so long as they stay on the base-path, to use a baseball analogy-so long as they "stick to the path that is typically used to approach a front door, such as a paved walkway." Ibid. From that vantage point they can presumably peer into the house through binoculars with impunity. That is not the law, as even the State concedes. See Tr. of Oral Arg. 6.
The dissent argues, citing King , that "gathering evidence-even damning evidence-is a lawful activity that falls within the scope of the license to approach." Post, at 1423. That is a false generalization. What King establishes is that it is not a Fourth Amendment search to approach the home in order to speak with the occupant, because all are invited to do that . The mere "purpose of discovering information," post, at 1424, in the course of engaging in that permitted conduct does not cause it to violate the Fourth Amendment. But no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.
The dissent claims, alternatively, that
Illinois v. Caballes,
The dissent's other principal reason for concluding that no violation of privacy occurred in this case-that police officers themselves might detect an aroma wafting from a house-works no better. If officers can smell drugs coming from a house, they can use that information; a human sniff is not a search, we can all agree. But it does not follow that a person loses his expectation of privacy in the many scents within his home that (his own nose capably tells him) are not usually detectible by humans standing outside. And indeed,
Kyllo
already decided as much. In response to an identical argument from the dissent in that case, see
See, e.g., Sloane, Dogs in War, Police Work and on Patrol, 46 J. Crim. L., C. & P.S. 385 (1955-1956) (hereinafter Sloane).
M. Derr, A Dog's History of America 68-92 (2004); K. Olsen, Daily Life in 18th-Century England 32-33 (1999).
Sloane 388-389.
See App. 94; App. to Brief for Respondent 1A (depiction of respondent's home).
The Court notes that Franky was on a 6-foot leash, but such a leash is standard equipment for ordinary dog owners. See, e.g., J. Stregowski, Four Dog Leash Varieties, http://dogs.about. com/od/toyssupplies/tp/Dog-Leashes.htm (all Internet materials as visited Mar. 21, 2013, and available in Clerk of Court's case file).
Some humans naturally have a much more acute sense of smell than others, and humans can be trained to detect and distinguish odors that could not be detected without such training. See E. Hancock, A Primer on Smell, http://www.jhu.edu/jhumag/996web/smell.html. Some individuals employed in the perfume and wine industries, for example, have an amazingly acute sense of smell.
Reference
- Full Case Name
- FLORIDA, Petitioner v. Joelis JARDINES.
- Cited By
- 1557 cases
- Status
- Published