By Hayes Hunt and Michael Zabel
Let’s say one day you observe your local police officer walk a drug-sniffing police dog up to the front door of your neighbor’s house. The dog sniffs around outside, then gives a positive signal to the officer.
Did you just witness the police conduct a search of your neighbor’s home? The answer, according to a recent opinion from the Supreme Court of the United States, is yes.
Recently, the Court handed down its opinion in Florida v. Jardines, its second drug-sniffing dog case from last term. In Jardines, the Court held that “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”
The facts of Jardines are essentially what were laid out above. Police received an unverified tip that marijuana was being grown in the home of Joelis Jardines. Police officers approached Jardines’ home with a trained drug-sniffing dog. The dog sniffed around the front porch area of the home and the base of the front door, and gave an alert signal indicating he had detected drugs. On the basis of the dog’s signal, police applied for and obtained a warrant, and executed a search of Jardines’ home later that day, discovering marijuana plants inside.
Writing for a 5-4 majority, Justice Scalia wrote that the police’s actions with the drug-sniffing dog constituted a physical intrusion into the curtilage of Jardines’ home which was protected by the Fourth Amendment. The majority opinion rejected the notion that the police had an implied license to come onto Jardines’ property with their dog. While past decisions of the Court had recognized an implied license for a visitor, whether a police or private citizen, to approach a home and knock on a door “background social norms do not invite him there to conduct a search[,]” wrote Justice Scalia.
In a concurrence, Justice Kagan wrote that the case could be decided not only on the grounds of property rights, but also based on the Fourth Amendment’s “reasonable expectation of privacy” jurisprudence. Kagan likened the police’s activity in Jardines to a stranger coming to one’s front porch and peering in through the windows with binoculars. Such behavior, Kagan pointed out, would obviously violate an individual’s reasonable privacy expectations.
Justice Alito, writing for a four-justice minority, argued that the police were acting within their license when they approached the front door, and the presence of a police dog did nothing to alter that license. Privacy interests were not violated, according to the dissenting opinion, because a reasonable person understands that odors emanating from a home are capable of being detected from locations that are open to the public.
Jardines unquestionably strengthens the protection afforded to an individual’s home and curtilage by the Fourth Amendment. Notably, Jardines is also a rare check by the Supreme Court on the government’s ability to use drug-sniffing dogs in law enforcement efforts.
 Recently, we also covered Florida v. Harris, a case in which the Supreme Court of the United States held that the reliability of a drug-sniffing dog’s positive alert for illegal substances was properly determined by a fact driven, totality-of-the-circumstances analysis.