Interesting Times for the Fourth Amendment: The Trespass Doctrine is Dead, Long Live the Trespass Doctrine

In all of the excitement over the marriage equality cases,  the Court’s important decision in Florida v Jardines has gone by the wayside.

Jardines involves the use of a K-9 narcotics dog sniff done on the front porch or curtilage of a home.  This was the second case in 13 months in which Justice Scalia has decided a search and seizure case using his newly reborn “trespass doctrine.”  Last January, in United States v Jones, he ruled in a “unanimous” decision (with 2 concurring opinions that make Jones look more like a 5-4 decision) that the warrantless placement of a GPS tracking device on the under-carriage of a car was a physical intrusion and thus a trespass on a constitutionally protected area.  Scalia argued that the trespass doctrine was the historical basis for 4th Amendment protection, and the Katz “reasonable expectation of privacy” test added to, but did not substitute for the earlier test.  He conveniently ignored Justice Stewart’s unambiguous statement in his Katz majority opinion that the trespass doctrine was “no longer good law” and that the Fourth Amendment protects “people and not places.”  

Scalia used the same trespass rationale in Jardines.  The home is a constitutionally protected area.  The front porch is part of the curtilage of the home,and is entitled to the same protection.  Therefore, bringing a dog to the front steps to do a narcotics sniff was a physical intrusion of a constitutionally protected area.   He did not rule on whether it violated Jardine’s expectation of privacy because in his view, he did not need to reach that question.  

What was interesting about this case is that Scalia ignored his own precedent from Kyllo v. United States (2001), in which he used the Katz reasonable expectation of privacy test to strike down the use of a thermal visioning imager to collect information on heat emanating from the home.  Justice Kagan points this out in her Jardines concurrence, and suggests that Jardines is an easy case — it really is just Kyllo with a highly trained narcotics dogs instead of the Agema 210 thermal visioning imager.  

In re-reading Scalia’s decision in Kyllo, there was good reason for him to ignore his majority opinion from that case.   He does not want to acknowledge that he once decided cases using Katz, which he would prefer to go away, as he wants to rely entirely on his newly reborn trespass doctrine.  In Kyllo he admitted that Fourth Amendment searches had been “decoupled” from the tresspass/property origins in Katz.  Yet in Jones last year he acted as if the trespass doctrine has always been the way the 4th Amendment has been interpreted, and always the law,   He repeats that claims in Jardines.  Somehow he has brought the trespass doctrine back to life, disregarding the Katz’ precedent which said the trespass doctrine was no longer good law.  He is trying his best to make Katz go away.   Whether that will happen, however, is questionable, since in both Jones and Jardines other justices (Sotomayor in the former; Kagan in the latter) have focused heavily on Katz expectations of privacy to reach their decision.  Plus Alito’s concurrence in Jones and dissent in Jardines  also use Katz (but with different results). 

There is one other interesting tidbit that comes out of the “new trespass doctrine” cases.   In Jardines, we have a physical intrusion on a constitutionally protected area (the home).   In Jones, the placement of the tracker on the vehicle was an intrusion on a constitutionally protected area (the vehicle, an “effect”).  Yet, a vehicle has long been ruled to posses a “diminished expectation of privacy.”  Thus, all of the other K-9 cases have had no problems with the use of a dog sniff.  It does not violate any expectation of privacy, and Stevens went so far in Illinois v Caballes (2005) to argue that one has no expectation of privacy in possessing contraband.     It strikes me that if the vehicle is a constitutionally protected area in Scalia’s logic, why is the K-9 sniff of the vehicle not a search?  Scalia himself rejected the “through the wall” vs. “off the wall” argument of Justice Stevens’ dissent in Kyllo.  Would he be willing to make the same distinction with a K-9 search of a car?  I doubt it, and this position would not likely command a majority in any event, but it illustrates some of the limitations and inconsistencies of the new Fourth Amendment regime he is trying to create.   

These are interesting times for the Fourth Amendment, with many issues that still need to be answered.  

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