Friday, April 19, 2013

Can Silence = Guilt in Pre-Arrest, Pre-Miranda Questioning?

On Wednesday April 17th, 2012 the Supreme Court heard oral arguments in the case Salinas v. Texas.[1]  This case will test an issue that has deeply divided the circuits—whether, even before an arrest, an individual has the right to remain silent during an interview with police, and suffer no legal consequences from this action.   So far, ten lower federal and state courts have ruled that the Fifth Amendment does apply to silence before arrest, and before police have the duty to give Miranda warnings, with about as many lower courts ruling that it does not. 

Salinas v. Texas was decided by the Court of Criminal Appeals of Texas on April 25, 2012, and affirmed the Court of Appeals holding that the “Fifth Amendment right against compelled self-incrimination does not apply to pre-arrest, pre-Miranda silence used as substantive evidence of guilt in cases in cases in which a defendant does not testify.”[2]  The facts of this case are as follows.  In December 1992 police found two homicide victims.  An investigation led to Mr. Salinas who voluntarily accompanied the officers to the police station where he answered every question asked for an hour.  Then, when asked whether the shotgun shells found at the scene would match the shotgun found in his home, he remained silent and “demonstrated signs of deception”, according to the interrogating officer.  The officer’s continued asking questions, which Salinas answered.  Salinas was held on outstanding traffic warrants until ballistics showed the shotgun shells found at the scene had been fired from the shotgun found at Salinas’ house, at which time he was held as a murder suspect.  However, the District Attorney’s office declined charges without additional evidence and Salinas was released when the hold expired.  A witness later came forward stating Salinas told him he committed the murder.  Police attempted to arrest Salinas, but they could not locate him.  Salinas evaded arrest for fifteen years.  His first trial, in which the State did not make use of his silence from the initial interview, ended in a mistrial.   At his second trial the State offered evidence of his silence when he was questioned about the shotgun shells, which Mr. Salinas’ attorney objected to; however this objection was overruled and the silence was deemed admissible.  In this trial, Mr. Salinas was found guilty of murder and sentenced to twenty years’ imprisonment and a $5,000 fine. 

Mr. Salinas appealed the admission of the evidence of his silence to the Fourteenth Circuit Court of Appeals.  The Court of Appeals noted that other state and federal courts of appeals were divided on the issue but sided with the holding that silence was admissible.  Salinas then appealed the Court of Appeals decision to the Criminal Court of Appeals of Texas, who affirmed the holding of the Court of Appeals.  The Criminal Court of Appeals stated that the Fifth Amendment protection given to pre-trial silence varies according to several factors: “(1) whether the defendant was in police custody; (2) whether he was informed of his Miranda rights; and (3) whether evidence of such silence is offered as substantive evidence of guilt or elicited from a testifying defendant.” 

The Supreme Court has reached decisions on some issues relating to Fifth Amendment protection of silence.  In Doyle v. Ohio the Supreme Court held that a defendant’s right against compelled self-incrimination is violated if the State is allowed to use post-arrest, post-Miranda silence to impeach their testimony.[3]  However, in Jenkins v. Anderson the Supreme Court held the defendant’s rights are not violated when defendant choses to testify and is cross-examined about post-arrest, pre-Miranda silence.[4]  The issue here is whether pre-arrest, pre-Miranda silence can be used against a non-testifying defendant.  The Texas Court of Appeals stated that the Fifth Amendment protects a defendant from compelled self-incrimination, and that in pre-arrest, pre-Miranda circumstances the suspect’s interactions with police are not compelled.  Therefore, the court held that the Fifth Amendment right against compulsory self-incrimination is “simply irrelevant to a citizen’s decision to remain silent when he is under no compulsion to speak.”
Salinas’ brief argues that there is compulsion in Fifth Amendment terms when the State uses silence against an individual “because it leaves him no avenue to avoid incriminating himself.  If he speaks, his words can be used against him; and if he refuses to speak, the prosecution can argue that his silence is evidence of guilt.”[5]  Additionally, Salinas argues that the risk of wrongful conviction is just as high if pre-arrest silence is used against the defendant as evidence of guilt.   Furthermore, Salinas’ argues that compulsion has nothing to do with custody, and the right to remain silent has been recognized in many noncustodial settings like testifying before Congress or answering tax questions from the IRS.  Lastly, Salinas points to the fact that his first trial, where little use was made of his silence, ended in a mistrial, yet when special emphasis was put on his silence during the second trial he was found guilty.  He noted the fact that he could have been sentenced to life in prison, but the jurors only asked for the twenty years the judge had imposed.   Salinas’ argues for a simple rule, “Once police initiate contact with a suspect, Fifth Amendment protection right to remain silent kicks in.”
The State of Texas’ brief argues that a simple refusal to answer is not the same as invoking Fifth Amendment protection.[6]  They also note that Salinas did not claim he was in custody at the time, nor did he argue that hehad been coerced.  They argue that the encounter was voluntary, non-custodial, and had none of the attributes of coercion that the Fifth Amendment protects against.  Furthermore, they argue that precedent in Jenkins already held that “use of an individual’s voluntary, non-custodial communication with police is not compelled merely because of its potential use at trial.”  Texas also argues that the reasoning behind Griffin v. California, which banned the use of silence in a trial setting, is to protect the “presumption of innocence.”  The right to a presumption of innocence only applies at trial; therefore, they argue, this rationale should not be expanded to the pre-trial setting. 

The federal government has also entered the argument on the side of the State of Texas.[7]  The federal government argues that the right that is protected by the Fifth Amendment is the right not to be compelled to testify against oneself at trial and that the issue in Salinas is whether Griffinshould be expanded beyond the trial setting.  The federal government argues that it should not and that in order to gain the privilege of Fifth Amendment protection you must invoke that privilege, and silence does not do that.  The federal government argues that if mere silence is enough to invoke Fifth Amendment privilege then it would protect a great deal of conduct that is not related to the Fifth Amendment such as a moment of uncertainty about what a question meant.  Additionally, the federal government argues that a suspect who voluntarily goes with the police and answers questions, “unlike a defendant who refuses to take the stand his at trial, or a suspect who refuses to answer any police questions, the suspect takes actions that are inconsistent with any intention to exercise this (Fifth Amendment) privilege.” 

The Court here has the opportunity to set new precedent and extend the rights of criminal suspects in pre-arrest situations.  It will be interesting to see whether they handle the case as a simple extension of precedent or delve deeper into the meaning of silence, compulsion, or custody.  

Nicole Irwin

Blogger, Criminal Law Brief


Tuesday, April 16, 2013

Article 60 of the Uniform Code of Military Justice: Is Hagel’s Proposed Change an Appropriate Response?


On April 8, 2013, new Defense Secretary Chuck Hagel announced[1]that he has ordered the Pentagon to prepare legislation to Congress that would change Article 60 of the Uniform Code of Military Justice (UCMJ).[2]  Sec. Hagel wants to amend the UCMJ to take away the ability of convening authorities to change the findings of a court-martial for major offenses that would normally require a court-martial. A convening authority is the military officer responsible for appointing court members and the military judge for a court martial. Sec. Hagel also wants to require convening authorities to provide written decisions for their decisions to overturn minor offenses.  Sec. Hagel’s statement said “[t]hese changes . . . would help ensure that our military justice system works fairly, ensures due process, and is accountable.”
Sec. Hagel made this statement following a review of Article 60 by the Pentagon’s general counsel.  Sec. Hagel ordered the review in March 2013 after Lt. Gen. Craig Franklin,[3]in his role as convening authority, overturned the sexual assault conviction of Air Force Lt. Col. James Wilkerson.  A military jury at Aviano Air Base, Italy convicted Wilkerson in November of aggravated sexual assault and sentenced him to a year in jail, and dismissed him from the service without pay.

Sen. Claire McCaskill (D-Mo)  has repeatedly condemned Franklin’s action and proposed legislation following the Franklin’s action last month that has Sec. Hagel’s and the Pentagon’s support.[4]  Despite this there has been no public pronouncement from Sec. Hagel or the Air Force leadership thus far that Franklin’s justification for dismissing the conviction was flawed.  Sec. Hagel also said he is reviewing other options and actions to strengthen sexual-assault prevention and response efforts, and he would announce his decisions soon.

Lt. Gen. Franklin has vigorously defended his decision to overturn the conviction of Lt. Col. James Wilkerson.  On March 12, 2013, Franklin released a six-page letter detailing his reasons for overturning Wilkerson’s conviction.[5] Franklin reviewed the record thoroughly, but Franklin admittedly relied upon evidence that was inadmissible during the court-martial. Additionally, though he tried to dispel the notion he was showing favoritism to an officer in one of his former commands, Franklin made reference to the fact that Wilkerson was a distinguished and long serving officer and that made him trustworthy.  Ultimately, Franklin acknowledged that the case broke down to a he said she said incident and used Wilkerson’s trustworthiness as a long serving officer to conclude that the prosecution had not met its burden.  Franklin’s letter is rife with scenarios where he concludes perceived inconsistencies in the victim’s and Wilkerson’s stories in favor of Wilkerson.  Franklin resolves and finds explanations for all the inconsistencies in Wilkerson’s story while dismissing the victim’s story because of similar or less severe inconsistencies.  Ultimately Franklin’s explanation reveals that he sought to act as a supreme juror and gave virtually no respect to the court-martial’s procedural requirements or the decisions of the court-members.

Senator McCaskill, a former prosecutor, roundly dismissed Franklin’s reasons stating:

"This explanation crystalizes exactly why the convening authority should not have the unilateral ability to overturn a jury verdict-and why we need legislation that restricts their ability to do so. This letter is filled with selective reasoning and assumptions from someone with no legal training, and it's appalling that the reasoning spelled out in the letter served as the basis to overturn a jury verdict in this case."[6]

Wilkerson’s attorney released a statement[7]defending Lt. Gen. Franklin’s decision. Wilkerson’s attorney also condemned Sen. McCaskill for criticizing Lt. Gen. Franklin’s decision without having actually review the trial record and calling the Senator’s and Hagel’s response a “knee-jerk reaction.”  Lt. Gen. Franklin, in further defense of his decision, released the Wilkerson case’s entire trial record on the Air Force’s Freedom of Information Act webpage.[8] Franklin continues to be criticized for his decision and many enlisted members of the military perceive this decision as another case of an officer using Article 60 to protect another officer.  As Sen. Lindsay Graham (R-SC), an Air Force Reserve Judge Advocate, pointed out in during a March 13th, 2013, Senate Hearing,[9] very few convictions and sentences are overturned by the convening authority.  However, as Sen. Kirsten Gillibrand (D-NY) pointed out during the same hearing, the statistics show that officer defendants benefit from Article 60 at much higher rates than the enlisted do.

Nonetheless, Lt. Gen. Franklin was well within his authority to dismiss the findings of the court-martial.  Under UCMJ Article 60, the convening authority has unfettered discretion as a matter of command prerogative to set aside a finding of guilty or modify a sentence, so long as a sentence is not increased.  See United States v. Nerad[10], 69 M.J. 138 (CAAF 2010); United States v. Finster[11], 51 M.J. 185, 186 (CAAF 1999); United States v. Travis[12], 66 M.J. 301, 303 (CAAF 2008) (“Clemency is a highly discretionary command function of a convening authority.”) As stated earlier, no one from the Defense Department has said that Lt. Gen. Franklin violated any procedure in dismissing the findings of the court-martial.

However, if we assume that Lt. Gen. Franklin abused his authority to “show the pilot community he had their backs,”[13] then it is necessary to determine if Sen. McCaskill’s and Sec. Hagel’s proposed response is appropriate.  A few concerns that will need to be resolved if this legislation is to move forward.  First, doesn’t restricting the power to grant clemency and approve or disapprove of findings and sentences restrict due process instead of improve due process by eliminating a line of appeal?  Second, is the joint committee that annually reviews the UCMJ and recommends changes to Congress going to change its thorough process to satisfy the desires of Sen. McCaskill and other advocates?  Finally, could allowing Department of Defense review of Article 60 clemency grants and requiring the convening authority to specify in writing reasons for disapproving findings in serious cases in order to create an appellate record be an equally effective and less intrusive way to resolve the concerns raised in this case?

However this proceeds, given the recent push against the military’s ineffective response to sexual assault cases, it seems likely the change will occur.  Congress and the Defense Department must ensure that it is not intruding too far into a military justice system that, with some serious and notable exceptions, works well.  Congress must remember that just because the system has some differences from the civilian criminal justice system that the UCMJ is an effective and fair tool for military justice.

Ryan Hatley
Blogger,Criminal Law Brief

Thursday, April 11, 2013

An Analysis of the Counterfeiting Problem

On March 28, 2013, Suffolk County officials busted five suspects of an international counterfeiting ring.[1] The ring sold fashion knockoff items of brands such as North Face, Uggs, Coach, Louis Vuiton, Tory Burch, Michael Kors, Oakley, Kate Spade, Nike, Prada, Tiffany, and other brands stored in Queens facilities.[2]  Every imported item, manufactured in China, was a counterfeit.  All five suspects have been indicted on conspiracy and trademark counterfeiting charges.[3] This recent news event is an example of direct anti-counterfeiting efforts to fight the counterfeit market.  The fashion industry is one of many industries to have fallen prey to counterfeiting, but legislation and action by the courts and law enforcement have directly impacted the effects and attempts of market penetration by counterfeiters.  This is important because counterfeiting, if expanded to a large scale, can create hazards and a destructive environment –such as when the New York City Metropolitan Transit Authority unknowingly bought counterfeit trains from a manufacturer that ended up falling off the tracks.

Anti-counterfeiting efforts have strongly focused on third-party liability.  Due to legislation, third-party landlords are now liable for counterfeit goods sold on their property.  On real estate terms, third-party landlords can no longer pretend to not know about or ignore the sale of counterfeit goods on their property.  This legislation aims at pushing landlords to action to prevent counterfeit markets.  Third-party liability in real estate has been demonstrated by the recent case of Coach v. Popular Fashions.  On March 25, 2013, Coach filed a federal lawsuit in a Nashville District Court against Popular Fashions, a store in Murfreesboro, Tennessee.[4] Coach alleged that Popular Fashions had been selling Coach imitation bags and is demanding $14 million in damages.[5] Coach had been aware of the counterfeit sales since June 2012 and sent investigators and secret service agents to gather information about the store’s owners and staff.[6] The investigators made purchases and verified that the item were counterfeits.[7] The counterfeit items purchased by the investigators were used for a training session in identification of counterfeit items for Nashville law enforcement in July 2012.[8]  Investigators continued to make purchases at the store until December 2012, when the store was served a warrant and twenty-six counterfeit bags and nineteen counterfeit wallets were found as a result of a search.[9]  Coach has brought eleven claims against Popular Fashion involving claims from deceptive practice to trademark infringement.[10]  Popular Fashion owners and staff were aware of the counterfeits being sold on their property and therefore should be held accordingly liable.  However, real estate is only one of the few markets the counterfeiters have tapped.

One of the biggest recent problems involving third parties is E-commerce.  Due to the rise of the Digital Age after the millennium, the Internet has made counterfeiting simpler.  Sites like eBay and IOffer have been the prime markets for people selling counterfeit goods, allowing access of counterfeits from anywhere in the world.  Now a consumer no longer needs to go down to Canal Street for a counterfeit bag.  With a few clicks of the mouse, a consumer can now have a high quality counterfeit bag delivered to his or her door from China.

Anti-Counterfeiting efforts have aimed to deal with E-commerce by writing the merchants cease-and-desist letters.  Many in-house corporations have specific departments dedicated to drafting cease-and-desist letters, which tend to work efficiently in the removal of the counterfeit goods from the websites.  In fact, due to third-party liability, eBay and IOffer have teamed up with big fashion corporations and anti-counterfeiting efforts.  If notified, eBay and IOffer will remove counterfeit goods from their sites.  Not only are auction sites like eBay and IOffer involved, but also the payment money processing sites.  Third-party sites like Paypal may also be held liable and are working with auction sites to track and prevent counterfeits.

In the Tiffany, Inc. v. eBay, Inc., 600 F.3d 93 (2d Cir.), Tiffany charged eBay of contributory trademark infringement because eBay had listings of counterfeit Tiffany jewelry.  EBay took down the specific listings that Tiffany brought claims about but did not stop other listings from being posted.[11] The Court held that eBay was not liable for contributory infringement even if eBay had general knowledge that counterfeit Tiffany products were sold on its site.[12] The Court’s rationale was that eBay did not continue to give its services to those who sold counterfeit Tiffany jewelry knowing that the merchants sold Tiffany trademark infringement products and eBay did not turn a blind eye to ignore trademark infringement issues.[13] The focuses on contributory infringement involved continued services from third parties to merchants who sold counterfeits and action done by third parties to stop counterfeit merchandise from being sold.

Since the Tiffany case, eBay and other retailers have continued to move forward with anti-counterfeiting efforts.  EBay now has an anti-counterfeiting warning, guides, and a partnership with the International Anti-Counterfeiting Coalition.  Also, EBay joined with the Council of Fashion Designers of America in a “YOU CAN’T FAKE FASHION” campaign to raise awareness against counterfeits to celebrate original design.[14]  “We hope broader awareness will help fight counterfeits and the harm they cause, and eBay is proud to partner with the CFDA on the second iteration of this campaign,” said Alan Marks, eBay’s Senior Vice President of Global Communications.[15]  “Counterfeits not only are illegal, they also damage brand owners, frustrate shoppers and undermine consumer confidence. EBay invests substantial resources to help provide millions of consumers a trusted, confident marketplace experience; this campaign is another example of our commitment to being a leading industry voice in the fight against counterfeits.”[16]

Amelia Wong
Blogger, Criminal Law Brief

Image by: asgw

[4]Kubis, Emily, Coach Inc. Sues Murfreesboro Store Over Knockoffs, The Tennessean, (March 26, 2013) available at:
[9]Kubis, Emily, Coach Inc. Sues Murfreesboro Store Over Knockoffs, The Tennessean, (March 26, 2013) available at:
[10]Kubis, Emily, Coach Inc. Sues Murfreesboro Store Over Knockoffs, The Tennessean, (March 26, 2013) available at:
[11]LaLonde, Anne Gilson, Supreme Court Denies Cert in Tiffany v. Ebay, Mark Monitor (2010), available at:
[13]LaLonde, Anne Gilson, Supreme Court Denies Cert in Tiffany v. Ebay, Mark Monitor (2010), available at:
[14]Ebay and Council of Fashion Designers of America Advance Anti-Counterfeiting Efforts with the Return of “You Can’t Fake Fashion”, Businesswire (2012), available at:
[16] Id.

Friday, April 5, 2013

Cell Phone Tracking: “Hello… is this Uncle Sam?”

On March 28, 2013, an Arizona federal court heard arguments regarding the admissibility of incriminating evidence collected by the FBI using a sophisticated cell phone tracking device, the “Stingray,” in the case of Daniel Rigmaiden.[1] In 2008, Daniel Rigmaiden was arrested for his alleged involvement in organizing a multi-state operation to defraud the IRS.  Raigmaiden and his conspirators allegedly used approximately 175 different IP addresses to file over 1,900 fraudulent tax returns, and made over $4 million in the process.[2]

Rigmaiden’s arrest was the direct result of the FBI’s use of the Stingray, which has been in use by federal agents since at least the mid 1990’s.[3]The Stingray is a small device, installed in an unmarked van, which simulates a legitimate cell phone tower to trick cell phones into connecting to it.[4]The Stingray allows the government to route all network traffic in a given area through a single device.[5]According to Christopher Soghoian, technologist at the ACLU’s Speech Privacy and Technology Project, the government uses the Stingray by driving through a neighborhood and sending signals through the walls of homes to pick up cell phone data.[6]Once connected, the Stingray collects unique identifying information from cell phones so that the FBI can triangulate and map the location of any cell phone in the area in which the Stingray is being used.[7]While the Stingray allows the FBI to target specific cell phones, it also necessarily collects the data from the cell phones of innocent people who happen to be in the area.[8]

The Rigmaiden defense team argues that the evidence against Rigmaiden, collected as a result of using the Stingray, should be suppressed because the government used the device without a search warrant and in violation of Fourth Amendment protections against unreasonable search and seizures.  To get a search warrant, the government must convince a judge that there is probable cause to believe the area in which the government seeks to search contains evidence linking an alleged perpetrator to a crime.  Search warrants must be narrowly tailored to areas in which the government believes the evidence is likely to be found, as courts typically deem general search warrants as violations of the Fourth Amendment.

Recently, the ACLU of Northern California obtained a series of emails from the Department of Justice demonstrating that federal agents in California have routinely used the Stingray for surveillance while failing to disclose these tactics in applications to federal magistrate judges for permission to conduct electronic surveillance.[9]Rather, the ACLU maintains the government mislead federal magistrate judges into believing that the applications were for pen registers, or basic cell phone surveillance methods that only record the numbers on incoming and outgoing calls, and not the use of the more invasive Stingray technology to record location information.[10]

In Rigmaiden’s case, the government applied for a court order requesting that Verizon, Rigmaiden’s wireless provider, help federal agents by tracing Rigmaiden’s wireless broadband access and cell phone. But in addition to obtaining data from Verizon, the government interpreted the court order as approval to use the Stingray to detect the location of Rigmaiden’s cell phone within his apartment complex. However, the government never asked the magistrate judge for such permission.

The government argues that the court order was effectively a search warrant authorizing the use of the Stingray.  But the ACLU maintains that the order not only made no reference to using the Stingray, it was directed at Verizon rather than the government.

The Supreme Court has held that the government can use pen registers without obtaining a search warrant.  But Rigmaiden’s defense team argues that pen registers and the Stingray are incomparable because of the Stingray’s superior capabilities to pinpoint a particular cell phone location.  Consequently, the defense team has urged the Arizona federal court to use the recent Supreme Court decision in United States v. Jones, prohibiting police from attaching a GPS device to a vehicle without a search warrant, to prevent the government from using the Stingray to track alleged suspects without a warrant.[11]

There is a significant constitutional question as to whether the use of Stingrays, which automatically gather information from cell phones belonging to innocent third parties, could ever be considered limited enough as to be in compliance with the Fourth Amendment protection against unreasonable search and seizures.  But regardless of the constitutional question, the government should not be able to use the Stingray without a warrant.  Despite the Justice Department’s narrow reading of the Fourth Amendment, claiming that people do not have a reasonable expectation of privacy over their cell phone location data,[12]limits must be drawn to protect citizens’ privacy in light of emerging technology.

Jared Engelking
Blogger, Criminal Law Brief

Image Courtesy of

Tuesday, April 2, 2013

Dog Sniff at Home Declared a 4th Amendment Search

On March 26, 2013, the Supreme Court decided Florida v. Jardines, affirming the Florida Supreme Court’s 5-4 decision that a dog sniff at the front door of a house where the police suspected drugs were being grown constitutes a search for purposes of the Fourth Amendment.[1]  This case follows closely behind Florida v. Harris, where the Court in February ruled that an alert from a well-trained narcotics detection dog certified to detect illegal contraband is sufficient to establish probable cause for the search of a vehicle, reversing the Florida Supreme Court.[2] The decision in that case was unanimous.
             In 2006, Detective William Pedraja of the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of the respondent, Joelis Jardines.  One month later, the Department and the Drug Enforcement Administration sent a joint surveillance team to Jardines' home.  After fifteen minutes of surveillance there were no vehicles observed in the driveway, no activity observed around the home, and the blinds to Jardines’ home were drawn so nothing could be seen inside.  Detective Pedraja then approached Jardines' home accompanied by Detective Douglas Bartelt, a trained canine handler who had just arrived at the scene with his drug-sniffing dog.  As the dog approached Jardines' front porch, he apparently sensed one of the odors he had been trained to detect, and began energetically exploring the area for the strongest point source of that odor.  After sniffing the base of the front door, the dog sat, which is the trained behavior upon discovering the odor's strongest point.  On the basis of what he had learned at the home, Detective Pedraja applied for and received a warrant to search the residence.  The search revealed marijuana plants, and Jardines was charged with trafficking in cannabis.

At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.  The trial court granted the motion, and the Florida Third District Court of Appeal reversed.  On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court's decision to suppress, holding that the use of the trained narcotics dog to investigate Jardines' home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.[3]

Justice Scalia's majority opinion, joined by Justices Kagan, Thomas, Ginsburg and Sotomayor, did not focus on the right to privacy,which is implicated by most modern-day Fourth Amendment cases. Rather, the decision hinged on the basis of a citizen's property rights. It followed the 2012 precedent from United States v. Jones, that when police physically intrude on persons, houses, papers, or effects for the purpose of obtaining information, "a 'search' within the original meaning of the Fourth Amendment" has "undoubtedly occurred."  The Court held that the curtilage may not be used by a canine officer to sniff for marijuana and relied on long-standing rules regarding cartilage.  Scalia used the analogies of a "visitor exploring the front path with a metal detector", or allowing police to "peer into the house through binoculars with impunity" to illustrate such activities that are not implicitly licensed by the homeowner, which would constitute a trespass under. Scalia also determined that it was unnecessary to address whether or not Jardines' privacy was impacted.

Justice Kagan, joined by Justices Ginsburg and Sotomayor, added to the binoculars example to argue further that both property and privacy rights are equally implicated.  "A stranger comes to the front door of your home carrying super-high-powered binoculars. He doesn't knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home's furthest corners. ... Has your 'visitor' trespassed on your property, exceeding the license you have granted to members of the public...? Yes, he has. And has he also invaded your 'reasonable expectation of privacy'...? Yes, of course, he has done that too. That case is this case in every way that matters."  The concurring opinion stated the controlling case supporting this position was Kyllo v. United States, the previously decided case involving the use of a thermal imaging device. [4]

The dissent found no support in the common law for the majority’s conclusion that the police conduct here constituted a trespass.  The dissent pointed out that the majority acknowledged that the public, including the police, have license to approach the front door.  The dissenters also did not view the dog sniff as invading any reasonable expectation of privacy given that one can expect that odors will drift outside of a house and, possibly, into public areas where there is no question a dog could sniff for evidence of drugs without constituting a search. 

Justice’s Kagan’s concurring opinion seems to be more attenuated with the reality of what Jardines is all about.  Does a person have a reasonable expectation of privacy inside of their home?  That is essentially a no brainer and is backed by case precedent.  A canine dog is a tool utilized by the police to obtain probable cause to search an area.  The issue at heart is where may the canine dog do this?  The answer is governed by the answer to whether the searched item has a reasonable expectation of privacy where the canine dog is sniffing, like a vehicle on a public highway.  The home is private property where there is a reasonable expectation that the government should not simply be able to approach your home and use an extrasensory tool without probable cause.

Diana Cobo
Junior Blog Editor, Criminal Law Brief