The 2012 United States Supreme Court decision in United States v. Jones curtailed law enforcement’s warrantless application of modern technology, but did so without specifically determining the privacy boundaries that may be infringed by technology.
Jones was the District of Columbia case wherein a global positioning system (GPS) tracking device was affixed without a warrant on a drug suspect’s vehicle and used to extensively track the suspect without accompanying physical surveillance. Although the Court had the opportunity to re-explore the extent to which technology might violate the Fourth Amendment it neglected to do so.
In United States v. Knotts (1983), then-Justice Rehnquist wrote that the Court’s approval of the use of beeper technology might shift if it permitted “dragnet-type law enforcement,” but he reserved any Court decision on the subject until the time when technology allowed such extensive surveillance.
That time seemed to come — and pass — with the Court’s short punt in United States v. Jones, wherein Justice Scalia relied on the physical trespass of the police placing a GPS device on Jones’ vehicle as the controlling legal argument for finding a Fourth Amendment violation. This return to the doctrine of trespass — which Justice Scalia reminded us, in Jones, was not dead and buried with the Court’s 1967 opinion in Katz v. United States — would continue into 2013 with the Florida v. Jardines decision.
Argued during the October 2012 term — well after United States v. Jones was decided — Jardines did not center on advanced technology but on one of the oldest of police detection devices: the canine sniff.
The Sniff, a Whiff
The issue in Jardines was simply whether the use of a canine to sniff the front door of a home for drugs was a minimally intrusive warrantless search. If so, the government argued, no warrant was necessary.
Miami-Dade police were advised that the home of Joelis Jardines was being used for a marijuana growing operation. A police dog and its handler approached the home when no one was present in the residence, and the dog sniffed around the front door. The dog alerted to the smell of marijuana, and the police used this information to obtain a search warrant.
In a 5-4 decision written by Justice Scalia, the Court held the dog sniff in this instance was a search requiring probable cause and a warrant. Fourth Amendment protection against government intrusion was based on the trespass by police upon Jardines’ property. It was, the Court found, substantially different than a “knock and talk,” wherein police approach a residence to talk to the inhabitants as part of an ongoing investigation.
Although not a practice as of yet reviewed by the U.S. Supremes, a number of state and federal courts have upheld the “knock and talk.”
But in Jardines, the Court held that entering upon an individual’s property and approaching the front door with a trained drug-sniffing canine was an entirely different matter. Despite the Court’s prior approval of canine sniffs in airports and the exterior of stopped motor vehicles, these were qualitatively distinguished from the entry upon private property to obtain the sniff.
Airports & Motorways
In the airport and stopped motor vehicle scenarios (U.S. v. Place (1983) and Illinois v. Caballes (2005)), no trespass occurred and the sniff was minimally intrusive. Based on a plain-view perspective, the dog sniffs in each of those cases were made from a lawful vantage point.
There is no expectation of privacy in the smells emanating from an individual’s luggage, vehicle or body that is exposed to the public. The officers in Jardines, however, committed a trespass that Justice Scalia found persuasive, as he had in Jones, in determining there was a Fourth Amendment violation.
These two decisions left unresolved the individual privacy rights implicated by the facts of each case. The concurring opinion of Justice Kagan in Jardines stated that both property rights and privacy rights were equally implicated in the case.
Similarly, in Jones, Justice Alito’s concurrence relied on a privacy approach to the Fourth Amendment rather than the majority’s trespass doctrine. What is clear from the Court’s continued analysis of Fourth Amendment protections is that the government cannot intrude upon personal property without probable cause and a warrant — which is a reasonable assessment of the amendment’s protections — but what is less clear is how the Court will choose to define privacy rights in light of new technology.
A reasoned analysis of Katz and other Court precedent would err on the side of protecting privacy rights, but Jones and Jardines both pulled up short of addressing the privacy issues.
Meanwhile, lower federal courts are grappling with the issue and creating a body of case law for the Supreme Court to consider in future terms.
Watch this space in 2014. I’ll keep you posted.