Can We Get Over the Property Thing Already!

By Mark Wilson

Last week’s oral arguments in companion dog-sniffing cases will probably fall along predictable lines. And by “lines,” I mean “property lines.”

The Court will likely reverse Florida v. Jardines on the ground that the officer who brought adorable canine cop Franky to the front door of Jardines’ house was within the curtilage, the space adjacent to and associated with the home. Justice Scalia showed some trepidation at the idea that police could approach a house at any time, for any reason, and bring a canine-sniffing dog along. He likened it to the police peering into the home with binoculars, Rear Window-style. The second case, Florida v. Harris, will probably be affirmed. This case is basically the same as a previous drug-dog case, Illinois v. Caballes, with the exception that Aldo’s certification paperwork had expired 16 months earlier.

In the past decade or so, the Court has twice been called on to address the problems that new technology poses to the Fourth Amendment. In Kyllo v. United States, Justice Scalia largely avoided the technology issue by focusing on the nature of the place searched rather than the nature of the technology used. A thermal imaging detector was a search because it enabled police to see activities inside the home, a sacrosanct space at common law. Similarly, in last year’s United States v. Jones, Justice Scalia again focused on the place searched, holding that federal officials committed a common law trespass in attaching a GPS device to the underside of Jones’ car, rendering their search unconstitutional.

What’s left behind, of course, is the problem of the technology itself. There will come a day when analogies to property interests (the same interests we supposedly left behind in Katz v. United States) won’t work anymore. Justice Sotomayor, concurring in Jones, suggested as much. Justice Scalia’s opinion in that case got the Court through to the end of the day, but the problems ahead are predictable and significant.

During oral argument in these cases, Justice Kagan hinted that drug-sniffing dogs might constitute some type of technology. Justice Ginsburg pointed out that, even though dogs have had superior olfactory detection for their entire history on Earth, it was only in the 1970s that police began to use those noses to find drugs. And Justice Sotomayor, again the voice of reason in these situations, pointed out that drug dogs don’t merely augment the human nose—they supplant it. These are entirely valid concerns that, I fear, will be left on the curb like Mr. Greenwood’s garbage. No drug dogs on the curtilage. Why? Because it’s curtilage. Not because a drug dog’s nose operates over and above the capabilities of the human nose. And not because of drug dogs’ significant reliability problems.

The Court is fond of pulling “justiciability” tricks like these. You could say (and Chief Justice Roberts would agree) that the Court shouldn’t craft new constitutional doctrines lightly. But what do you do when a constitutional problem is staring right in your face? Ignore it and hope that the issue doesn’t come back before you retire.

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