Drug Sniffing Dogs and the Fourth Amendment

by Mike on March 27, 2013

in Judicial Watch,Law

When Justices Scalia, Thomas, Alito, and Kennedy are join the majority in a Supreme Court opinion, you can usually be sure that the Court ruled the right way.  It isn’t that those Justices are always correct, but the first three have great respect for the Constitution and Kennedy usually at least tries to reach decisions in accordance with our founding document.  That said, I love it when Supreme Court “voting blocs” split on an issue because it forces the chattering classes (ourselves included) to show some intellectual effort an honesty.

And that was exactly what happened yesterday in Florida v. Jardines, in which the Court held that it is a violation of the Fourth Amendment for the police to use drug sniffing dogs to conduct a warrantless search right outside of a defendant’s home.  The 5-4 decision was written by Justice Scalia and the result was supported by Justices Sotomayor, Thomas, Kagan, and Ginsburg.  Justices Breyer, Alito, Kennedy, and Weasel Roberts dissented.  Ah, what are the lefties who think Thomas and Alito are always wrong and Breyer and Ginsburg are always right to do? (To be fair, some conservatives think the same way in reverse)

Who knows?  All I can tell you is that I agree with the ruling.  First I’m giving a brief background, and this is a watered down version because I’m writing a blog post not a legal brief.  Contrary to popular belief, the text of the Fourth Amendment does not require a warrant for a search to be valid; the text merely requires that a search be reasonable.  The Amendment itself limits the circumstances under which a warrant may issue because at the time of our nation’s founding, British authorities frequently abused warrants to conduct unreasonable searches.  However, as the law of what constituted a reasonable search developed, courts historically began the analysis by holding that a properly issued warrant would be required unless a one of the myriad exceptions (have fun with those and realize that they’re just the tip of the Fourth Amendment warrant exception iceberg) that later developed applied to the facts of the cases before them.  So although a warrant is not required by the text of the Constitution, it is a de facto requirement as a starting point when analyzing the reasonableness of a search because requiring a properly issued warrant functioned as an effective check on state and executive power and helped ensure that searches would be reasonable.  That initial “warrant requirement” coupled with the exceptions generally (don’t get me started on Miranda) led to our law where searches under the Fourth Amendment merely have to be reasonable.

In this Jardines case, the police used a drug sniffing dog right outside the perp’s house without obtaining a warrant.  The dog alerted the officers that drugs were present, the cops entered the present, and found a bunch of marijuana plants.  The Court held the search to be unreasonable because the police did not obtain a warrant.

I agree with this decision because no place in a free society is entitled to more privacy protection than a home.  What a person does in his home, especially what one tries to keep private, should not be disturbed by the executive branch unless the police have probable cause to believe a crime is being committed and first obtains the permission of the judicial branch to conduct a search.  There are certainly exceptions to the rule.  For example, if a suspect leaves a window open while committing a violent crime or is running a volatile meth lab and fumes detectable by human scent are pouring from the house, common sense tells you that reasonableness allows a warrantless entry.  But if the police need to use a enforcement tool that can detect what is on the inside of a house the way human senses cannot, the expectations of a homeowner in a free society are entitled to protection under the Fourth Amendment.

Come to think of it, maybe Clarence Thomas is always right. . .

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