Supreme Court Watch: Florida v. Jardines––October 31, 2012

On October 31^st, the United States Supreme Court will hear oral argument in Florida v. Jardines, (October Term 2012, 11-564) (for the Florida Supreme Court’s opinion click here).  This case presents a Fourth Amendment issue:  Is a dog sniff at the front door of a suspected grow house by a trained drug-detection dog a search requiring probable cause?

 After receiving a Crime Stoppers tip that a house in south Dade County was being used as a grow house, law enforcement officers began a surveillance.  A canine handler and his partner joined the surveillance team.  During the surveillance the canine handler, his partner, and a second officer approached the home.  The canine began to track the odor of the controlled dangerous substance, alerting to the presence of a substance by sitting down immediately after sniffing the front door.  While at the front door, the second officer smelled the odor of live marijuana.  Police subsequently obtained a search warrant––included in the application for the search warrant was the fact that the canine had alerted on the house.

The trial court granted defense motions to suppress––finding the use of a drug detector dog at the defendant’s house door constituted an unreasonable search under the Fourth Amendment.

In 1983, Justice O’Connor delivered the opinion in U.S. v. Place, 462 U.S. 696 (1983).  This case raised the issue whether the Fourth Amendment prohibited law enforcement from temporarily detaining personal luggage for a scan by a trained drug-detection canine.  Justice O’Connor wrote, “[t]he manner through which information is obtained through this investigative technique is much less intrusive than a typical search.”  The Justice noted, “[t]he canine sniff is sui generis.”  Justice Douglas was the sole dissenter, though his dissent did not address the canine issue specifically.

The following year, the Supreme Court in U.S. v. Jacobsen, 466 U.S. 109 (1984) expanded on its holding in Place and held that a police investigatory tool––such as a dog sniff or a chemical test––is not a search if it merely reveals the presence or absence of contraband.  The Court reasoned that the privacy interest in possessing contraband is not one that society recognizes as reasonable.  Later, in 2001 Maryland Court of Appeals decision, the state's highest court held that a K-9 scan of a vehicle is neither a search nor a seizure, and Fourth Amendment issues do not arise.

In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court was presented with another Fourth Amendment issue regarding the use of a narcotics-detection dog to sniff around the exterior of a vehicle during a traffic stop.  Justice Stevens writing for the majority held that, “a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

The membership of the court has changed since Justice Stevens wrote Caballes in 2005.  Justice Stevens along with Justice Souter, who was a dissenter in Caballes, and Justice O’Connor have retired from the Court.  Although he took no part in the decision, Chief Justice Rehnquist is also no longer serving on the Court.  The four new justices, Alito, Sotomayor, Kagan, and Chief Justice Roberts appear to be ideologically equally divided.  The true unknown in this upcoming case is Justice Scalia.  Although thought to be pro-government, earlier this year in another Fourth Amendment case, United States v. Jones, 586 U.S.    (2012), Justice Scalia found the government placing a GPS tracking device on a vehicle to be a search.  In Jones police had attached the GPS tracking device to a vehicle while it was parked in a public parking lot.  Justice Scalia was particularly offended by this trespass on the personal property of the vehicle’s owner.  There were no dissenting opinions in that case.  Caballes has a trespass component to the facts––police officers enter the cartilage with a narcotic detecting dog and follow the dog up to the front door where the dog alerted.

In their upcoming decision in Jardines, it is possible that the Court will follow and extend Jones, thus resisting the temptation to weaken the protection of the Fourth Amendment as Justice Douglas counseled in Place.

Jeffrey Wennar

Guest Blogger, Criminal Law Brief

Legalizing Prostitution

“Baby, cash money.”  With these words a Colombian prostitute initiated a deal with a U.S. Secret Service Agent that would eventually create a scandal and embarrass the entire agency.  Widely considered the “world’s oldest profession”­­––prostitution is the act of performing sexual acts in exchange for money.  It’s interesting though, that the world’s oldest profession is a crime in many places.  Just last week, on September 25, 2012, Anne Gristina plead guilty to running a prostitution ring in New York.  She’s not the first person to be convicted of assisting with prostitution.  Heidi Fleiss is one of the more famous people who got convicted for participating in the prostitution.  Around the world, in a survey of one hundred countries, at least 61% have some form of legal prostitution.  Today in the United States, prostitution is illegal everywhere except for 11 counties in Nevada.  Should prostitution be a crime in the U.S.?   

 There are strong opinions on both sides of the fence regarding prostitution.  One side thinks that prostitution should be a crime because it’s immoral and leads to additional criminal activity, as well as the spread of sexually transmitted diseases.  On the other side is a group that believes prostitution should not be a criminal violation and prostitutes should be recognized as workers like everyone else.  Among those that advocate for non-criminal prostitution, there are those in favor of legalizing prostitution and those in favor of decriminalization.  Legalization entails the state regulating a particular practice––here the practice of prostitution.  Decriminalization is when the state has no laws related to the practice.  Proponents of decriminalizing prostitution advocate for the removal of all laws related to prostitution.  There would be no criminal laws under which prostitutes could be punished.  This would allow prostitute to seek legal assistance if cheated or assaulted and would reduce law enforcement costs of policing and prosecuting prostitutes.[1] 

Arguments for Legalized Prostitution	Arguments Against Legalized Prostitution
·      Increased rights for prostitutes ·      Decrease in public expenditures on prosecuting prostitutes and customers ·      Increased safety for prostitutes ·      Increased revenue for the state in the form of taxes ·      Liberation of women from the paternalistic bonds of the government	·      It’s immoral ·      Exploits women ·      Increases crime ·      Attracts prostitutes from countries where it is illegal ·      Spreads sexually transmitted diseases ·      Will eventually lead to a decreased in the quality of life prostitutes

Why Legal Prostitution Can Work

Prostitution should be legalized instead of decriminalized.  Prostitution is an industry that should be regulated in some way––mainly for the purpose of ensuring the safety of prostitutes and promoting the protection of their employment rights.  It should not be regulated in order to perpetuate gender stereotypes and paternalism by the government.

Western society has a long history of enacting paternalistic laws, which in effect, control the behavior of women.  For example, women were prohibited from engaging in many professions simply because they of their gender.  In a Supreme Court case, Bradwell v. State, Bradwell, a woman, was denied the opportunity to practice law because “natural and proper timidity and delicacy [of] the female sex” make her unfit to do many occupations.  The criminalization of prostitution is a remnant of this time.  The state is essentially telling women what is best for them, what job they can have, and under what circumstances they can engage in sexual behavior.  Criminalizing prostitution infringes upon the individual liberty a woman has to decide whom to have sex with and to choose the employment that she desires.  The state should not be in the business of regulating how an individual uses her body.  State regulation of behavior based on the state’s interpretation of morality is wrong.  We saw this back during the days of miscegenation, when the state prohibited individuals of different races from marrying.  Loving v. Virginia was the case that led to the decriminalization of this practice.  The Lovings (a White husband and Black wife) were convicted and sentenced to jail for being married since they were not the same race.  This was considered a morally right practice––frequently, scriptures from the Bible were cited in support of the practice.  Today, we see regulating behavior based on morality in the gay marriage debate.[2]  States are regulating whom people can marry largely due to moral justifications.  While everyone is able to have her or his own opinions about what is right and moral, the state should not impose its morals on its citizens.

Prostitutes should be considered employees in their chosen field.  They deserve the same rights and protections that other employees enjoy.  In a country where prostitution is legal, a prostitute may able to break the chains of the pimp and avoid much of the danger associated with the job.  She can work for herself, choose her clients, and work in a safe work environment.  She does not have to worry about being fearful of reporting crime committed against her and can get benefits like her counterparts who are not in the sex industry.

Some argue that legalizing prostitution will encourage or increase human trafficking.  This claim has little merit.  It is entirely possible for the state to legalize prostitution and at the same time prohibit the forcing of individuals into prostitution.  Legalizing prostitution will have no effect on federal laws prohibiting human trafficking.  In fact, decriminalization or legalization of prostitution could decrease human trafficking.  Right now, because there is no legitimate market for prostitutes, individuals are trafficked in to meet the demand.  If women (and men) were able to be prostitutes legally, there is likely a large number of people who would be prostitutes, but for its illegal status.  The amount of prostitutes will increase when it is legalized and there will be enough workers to meet the demand.

There are a number of regulated regimes under which legal prostitution could operate.  One option is the decriminalization model, where all existing laws related to the prohibition are removed and it is allowed to operate on its own.  Another alternative is to allow prostitution to be legal but maintain statutes prohibiting pimping, a situation when a person serves as an “agent” of a prostitute and takes some of her earnings, and statutes prohibiting others from financially benefitting off prostitution.  Yet another model used in some countries is to allow prostitution, but criminalize street prostitution.  The model used in most of the counties in Nevada where prostitution is legal, is to allow it in certain cities and only in state regulated brothels. 

Legal prostitution can work in the United States; even though it may have some negative drawbacks like any other profession.   It may take much time for the stigma associated with it to erode, however through state regulation, prostitution can be a safe, legitimate and profitable business

Bethany J. Peak

Blogger, Criminal Law Brief

Author’s Note:  Throughout the blog I refer to prostitutes as women only for ease of writing. I understand that there are men prostitutes as well, however, since the majority are women, I focus on their concerns.

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[1] Michael Conant, Federalism, the Mann Act, and the Imperative to Decriminalize Prostitution, 5 Cornell J.L. & Pub. Pol'y 99 (1996).

[2] Dent Jr., George, The Defense of Traditional Marriage, 15 J.L. & Pol. 581, 588 (1999), (commenting that “. . . moral considerations are appropriate in law-making . . . “)

Will the Supreme Court Address Whether the Government May Abolish the Insanity Defense?

The Supreme Court’s new term started October 1st, but the Court met on September 24th to consider whether to grant new cases.  One case that the Court is still considering hearing is Delling v. Idaho.[1]  The main issue in Delling is whether Idaho violated the Fourteenth Amendment to the Constitution by abolishing the insanity defense in criminal cases.  The Court has never addressed what the answer to this question might be; if the Court hears it, Delling will be the first time states have any guidance as to the constitutionality of outlawing the insanity defense in criminal cases.

Most crimes require that the government prove beyond a reasonable doubt that the defendant intended to commit an act.  The insanity defense usually involves the question of whether a person was too insane to be considered legally responsible for his actions.  This defense could be a complete defense to the crime, so if proven, the person would not have to serve time in jail.  In 2005, Idaho changed the law so that insanity was no longer allowed as a defense.[2]  John Delling, the defendant in this case, was prevented from using insanity as a defense by that Idaho law.  Instead, he would have to prove that he could not form the intent to commit a crime because he is insane.  This will allow the defendant to defend himself against a charge that requires a specific kind of intent, but not against other charges.  For example, a defendant may be able to defend himself from being convicted of first-degree murder, which requires intent, but not involuntary manslaughter, which does not.  The insanity defense, on the other hand, would have absolved the defendant of criminal responsibility.

Delling was accused of killing two people and deemed competent to stand trial in February of 2008.[3]  He then agreed to a conditional plea, where he would plea guilty to both killings, but not give up his right to appeal the Idaho law preventing him from presenting an insanity defense.  Delling was sentenced to life in prison following this plea.

Delling’s main argument is that Idaho’s law preventing him from presenting an insanity defense is unconstitutional under the Fourteenth Amendment.  The Fourteenth Amendment guarantees every person due process before their life, liberty, or property is taken away.[4]  Delling argued that by not allowing him the opportunity to present insanity as a complete defense, Idaho deprived him of his due process rights. 

The Idaho Supreme Court disagreed, stating that numerous cases before Delling’s took no offense to the law abolishing the insanity defense in Idaho.  The court also stated that the United States Supreme Court had several opportunities to state whether Idaho acted constitutionally when it abolished the insanity defense.  Despite these opportunities, the Supreme Court has never said whether or not a state must allow a defendant to pose an insanity defense.  In fact in footnote twenty in Arizona v. Clark, the Supreme Court specifically acknowledged that it had never weighed in on this question.[5]  That footnote stated the Court did not need to address that question in Clarkand left the issue for another time.

The Court was very careful not to state how it would ultimately reach such a question.  The fact that the Supreme Court felt the need to acknowledge that there may be a constitutional issue when some states abolish the insanity defense should mean that the Court would eventually grant certiorari to address the issue.  All Delling can ask now is whether the Court is ready to address that question in his case. 

But regardless of how the Court ultimately decides whether states can abolish the insanity defense, the Court should hear Delling’s case.  Some states now allow the insanity defense, while others do not.  Someone who commits a crime in Idaho will not have the same defenses available as if he committed that crime in another state.   This creates a discrepancy of justice across state lines.  While laws in one state are frequently different than laws in another state, this is a question of what is constitutionally allowed.  If the Court decides that states are allowed to abolish the insanity defense, at least other states will have a choice to make.  Right now those states may be waiting on the Court to offer guidance. 

Conversely, if the Court decides that abolishing the insanity defense is unconstitutional, there are people in jail in Idaho right now who might not need to be there.  The insanity defense involves whether a person could be held accountable for his actions; if the Court agrees that the insanity defense cannot be abolished, it should apply its decision retroactively.  Defendants who were not responsible for their actions should not stay locked away simply because they committed a crime before the Supreme Court addressed this question.  If the ruling would apply retroactively, this is all the more reason that the Court should hear Delling’s case now.  Otherwise, state courts will have to hold more retrials to see if a defendant was criminally insane at the time of their actions.  The Court should grant certiorari in Delling to decide this question.

Bonnie Lindemann

Blogger, Criminal Law Brief

Image by: Phil Roeder

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[1] http://www.supremecourt.gov/opinions/05pdf/05-5966.pdf

[2] http://www.law.cornell.edu/constitution/amendmentxiv

[3] http://www.isc.idaho.gov/opinions/delling%2036920.pdf

[4] http://law.justia.com/codes/idaho/2005/18ftoc/180020007.html

[5] http://www.isc.idaho.gov/opinions/delling%2036920.pdf

States Respond to the U.S. Supreme Court Decision on Juvenile Life Sentences

On June 25, 2012, the Supreme Court of the United States issued its ruling in Miller v. Alabama.  The Court held mandatory life sentences for juveniles without the possibility of parole are unconstitutional.  The Court reasoned that “[w]hile a mandatory life sentence for adults does not violate the Eighth Amendment, such a sentence would be an unconstitutionally disproportionate punishment for children.”  Furthermore, the Court added  the punishment should be proportioned to the offense and the offender.  Miller is a victory for juvenile justice advocates, but the fight continues.  Miller abolishes mandatory juvenile life without parole sentences, but it still permits a judge to sentence a juvenile to life without parole.  It is time for the United States to completely abolish juvenile life without parole sentences.  The court’s focus for juvenile offenders should be rehabilitation.

More than half of the states are affected by the Court’s decision in Miller.  There are currently twenty-nine states that have mandatory life without parole sentences for juveniles, and there are approximately 2500 juveniles serving life without parole in the United States.

 States have promptly begun to respond to the Court’s decisions.  North Carolina, the first state to respond to the Court’s decision, has amended its sentencing laws to comply with Miller.  Pennsylvania, the state with the highest number of juveniles serving life without parole, has initiated legislative hearings to determine how to best comply with Miller.  Michigan, the state with the second highest number of juveniles serving life without parole, has also initiated legislative hearings to determine how to best comply with Miller.  

While some states are making prompt attempts to comply with the Court’s decision, Iowa found a way to evade compliance.  Iowa’s Governor Terry Branstad commuted the life sentences for juveniles in his state to a number of years.  The governor changed the sentences from life without the possibility of parole to a sixty year minimum sentence before the juvenile is eligible for parole.  Iowa’s Constitution permits the governor to commute life sentences to a number of years; however, the question remains whether commuting juvenile life without parole sentences to a sixty year minimum sentence actually complies with Miller or whether the sentence in itself is unconstitutional for a juvenile after Miller.

Miller simply gives the judge discretion.  It allows the judge to consider mitigating factors for sentencing.  Mitigating factors are factors regarding the juvenile’s character or circumstances of the crime including but not limited to age, mental illness, and history of maltreatment.   After considering these factors, a judge can still sentence a juvenile to life without parole.  The actions of Iowa’s governor seem to suggest that he does not trust the state’s judges with this type of discretion.  In Miller, the Court pointed out that juveniles are immature, irresponsible, impetuous, reckless, and susceptible to influence and psychological damage.  Moreover, the Court pointed out that the crime should be proportioned to both the offender and the offense.  For the foregoing reasons, judges need discretion in juvenile sentencing.  If Governor Branstad trusts his state’s judges then he can trust that they will issue sentences that consider the offender’s mitigating circumstances as well as public safety and punishment for the crime.

Iowa’s new sentence for juveniles is arguably equivalent to a life sentence without the possibility of parole.  The average life expectancy in the United States is seventy-eight years old.  Lifelong imprisonment would likely shorten the life expectancy age even more.  For a juvenile who is sentenced at the age of eighteen, he would not be eligible for parole until he is seventy-eight.  Iowa is essentially sentencing juveniles to spend the rest of their life in prison give or take a couple of years.  Iowa’s governor’s actions are completely contrary to the Court’s decision and rationale in Miller.

According to Amnesty International, the United States is believed to be the only country in the world to sentence its juveniles to life in prison without parole.  Although the Court’s decision in Miller is a step in the right direction, we must completely ban juvenile life without parole.  Juveniles have the capacity to change.  These are children, many whom have not had proper care, guidance, and supervision.  It is important that the Court stated the punishment must be proportioned to both the offender and the offense.  We cannot just look at the crime; we must look at the offender as well.  When we really look at the offender, we will see a hurt child. Many juvenile offenders have a history of maltreatment.  Maltreatment is certainly not an excuse to commit vicious crimes, but there is a correlation between maltreatment and juvenile criminal offense.  Children are not born criminals.  When a child commits a vicious crime something has obviously gone wrong in their life.  We may not be able to protect every child from maltreatment or the violence plaguing so many low income neighborhoods, but when the child does come to the court’s attention, we can help that child.  Our goal for juvenile offenders should always be rehabilitation.

Tonya Davis

Blogger, Criminal Law Brief

Image By: Envios

Legislation and the Beat Cop: Is Stop-and-Frisk Coming to San Francisco?

Amid continuing national controversy and judicial disapproval, San Francisco Mayor Ed Lee is standing firmly behind a stop-and-frisk policy similar to one already implemented by New York City.  The policy would allow law enforcement officers to stop and search anyone they considered suspicious.  Proponents of the policy cite crime prevention as the driving force during a period of increased homicides in the city. Opponents, on the other hand, are more concerned about a potential increase in racial profiling and lack of proof that such policies would indeed prevent crimes.

The reasonable suspicion basis is a much lower legal standard than the probable cause normally required under the Fourth Amendment searches and seizures.  The stop and frisk is different from an arrest and a full search – a stop involves only a temporary interference with a person’s liberty, and the frisk is generally limited to the patting down of the suspect’s outside clothing.  Stop-and-frisk has long been implemented by law enforcement unofficially, and the definitions of the policy were not explained until the 1968 Supreme Court decision in Terry v. Ohio.  In Terry, the Court found that an officer may perform a search for weapons without a warrant, even without probable cause, when the officer reasonably believes that the person may be armed and dangerous.  A Terry stop may not be based on an officer’s hunch that the suspect is up to no good, but instead it must be based on a reasonable, articulable suspicion.  The Court also noted that the purpose of the second component, the frisk, is to ensure the officer’s safety.  As such, the frisk requires reasonable suspicion that the suspect is armed and dangerous, as opposed to just being involved in a crime.

While Terry remains a valid precedent, the issue of racial profiling arose as cities such as New York and Philadelphia began to heavily implement the policy in the 1990s.  A recently released report by the New York Civil Liberties Union demonstrated that the program overwhelmingly targeted minorities to the extent more than eighty percent of those stopped were black or Latino.  In 2011, Philadelphia settled a class-action suit against the city by seven men alleging civil rights violations.  The settlement laid out a model for court supervision and police monitoring and accountability.   Combined with greater interests by the lower courts, it is likely that any future stop-and-frisk policies would be closely monitored and within reach of the judicial system on the local law enforcement level.

Therefore, it seems peculiar that Mayor Lee continues with his push for the implementation of the policy amid lackluster national and local support.  While there has indeed been an increase in homicides, the rise is negligent in the face of declining crime rates throughout the city.  Stop-and-frisk may constitute a valuable tool in the law enforcement arsenal, but whether its benefit is outweighed by the possibility of skewed use and abuse has not been sufficiently demonstrated.  The underlying issue here may be of the importance of decision sovereignty by the patrolling officers – is it better to give greater legislative leeway to the beat cop and hope he or she makes the right call or to limit what they can do and possibly endanger their safety?

Elena Gekker

Blogger, Criminal Law Brief

Image by DavidsonScott15

 

DNA Recording: The Court Allows Maryland to Continue Collecting and Testing DNA Samples from People Who Are Arrested.

On Monday, July 30, Chief Justice Roberts issued a stay to allow Maryland to continue sampling and testing DNA from people who have been arrested, but not yet convicted, of a crime.  This practice came under fire in 2009 when Alonzo Jay King, Jr., was arrested for assault.  During the booking process, personnel at the Wicomico County Central Booking facility took a sample of King’s DNA.  Maryland State Police Forensic Sciences Division processed the sample and entered it into the Maryland DNA database.  The database matched the sample to a rape that was committed in 2003.  Following this match, King was charged and convicted of that rape. 

King appealed his conviction, arguing that Maryland violated his Fourth Amendment right to an expectation of privacy.  He also argued that expectation of privacy outweighed any interest the State might have in collecting his DNA.  The Maryland Court of Appeals agreed and overturned King’s conviction.  The State appealed this decision to the Supreme Court of the United States.

To issue a stay, the State had to show three things.  First, that there was a “reasonable probability” that the Court would grant certiorari to hear the case.  Second, that there was a “fair prospect” that the Court would reverse the lower court’s decision.  And, third, that there was a “likelihood that harm [would] result from the denial of a stay.” 

The Chief Justice easily found a reasonable probability that the Court would grant certiorari to hear the case.  Given that the Circuit Courts do not agree on the issue––also known as a circuit split––there was a high probability that the Court would hear the case.  Generally, the Court tries to resolve circuit splits to ensure the Constitution is being applied consistently across the country. 

In finding that there was a reasonable probability that the Court would grant certiorari, the Chief Justice characterized this split as “implicat[ing] an important feature of day-to-day law enforcement practices.”  The Chief Justice went on to say that the decision would have effects beyond just Maryland because the samples Maryland collects go into the FBI database and can be matched to crimes across the country. 

The second element the State had to prove was that there was a “fair prospect” that the Court would reverse the lower court.  The Chief Justice addressed this question in a single sentence: “[i]n addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.”  Whether the Chief Justice chose to consider this factor in such a cursory manner because he is concerned whether he has the votes to actually overturn the lower court’s ruling is anyone’s guess.  Issuing the stay is at least an indication that the Court is split on this issue, or they would not have bothered with the stay before deciding whether to take the case.

The third element was that the State would suffer irreparable harm if the stay were not issued.  Chief Justice Roberts credited this program as a “valuable tool for investigating unsolved crimes” and helping reduce the number of violent offenders in the public.  The Chief Justice also noted that crimes that involve DNA evidence in the first place “tend to be serious, and serious crimes cause serious injuries.”  Thus, Maryland does suffer irreparable harm if the stay is not issued. While King argued that the Court should consider Maryland’s eight-week delay as undermining its claim of irreparable harm, the Chief Justice still gave more weight to the value this policy has for law enforcement efforts.

Whether this program will ultimately be found unconstitutional is unknown.  Having granted the stay, it seems almost a certainty that the Court will ultimately hear the case.  The Chief Justice seems to indicate in his opinion granting the stay that the program will ultimately be found constitutional.  However, it is unclear whether he will be able to find the votes to support his position. Criminal law is an interesting area, and the votes do not always follow traditional party lines.   In this last term alone, Chief Justice Roberts, Justices Scalia, Kennedy, Thomas, and Sotomayor agreed that the installation of a GPS tracking device on a car without a warrant was unconstitutional.  Justices Alito, Ginsberg, Breyer, and Kagan would have found the same result, but disagreed with the majority’s “trespass” approach.  In addition, the Court split 4-1-4 in Williams v. Illinois.  Justices Kagan, Scalia, Ginsburg, and Sotomayor composed the dissenting opinion, while Chief Justice Roberts, Justices Kennedy, Alito, and Breyer composed the majority.  Justice Thomas concurred partially with the dissent, and partially with the majority.  Neither of these cases displayed the usual break down of votes, with Chief Justice Roberts, Justices Alito, Thomas, and Scalia on one side, Justices Ginsberg, Breyer, Kagan, and Sotomayor on the other, with Justice Kennedy as the decisive vote.   

The concern with this sort of program is what safeguards are in place to keep officers from abusing the policy.  Under this program, could an officer arrest a suspect on an unrelated crime as a pretext for collecting their DNA?  Suppose this unrelated crime was a traffic violation.  The Supreme Court has ruled that the police may arrest people for traffic violations, even if the penalty is a simple fine.  The potential for abuse in this type of program seems unavoidable.  Hopefully the Court will address this problem when it inevitably grants certiorari in this case.

Bonnie Lindemann

Blogger, Criminal Law Brief

Supreme Court Set to Rule on Whether the Use of Drug-Sniffing Dogs Around the Exterior of the Home are a Violation of the Fourth Amendment’s Right to Privacy.

The Supreme Court is currently on summer recess; however, there are some interesting criminal procedure cases that the Court will hear when the new term begins in October.  One of these cases, Florida v. Jardines, has to do with how police may use canines trained to detect narcotics without violating an individual’s Fourth Amendment right to privacy.  In this case the Florida Supreme Court held that the factual situation surrounding the law enforcement’s use of drug-sniffing dogs violated an individual’s right to privacy under the Fourth Amendment. 

Whether a search is a violation of an individual’s right to privacy is dependent on the factual situation surrounding the search.  First, it must be determined that what the officers did was a search in the first place.  If it is not a search, then there is no Fourth Amendment protection.  For example, if an individual no longer has any privacy interest in an item, such as trash put out on the street for trash collection, then it is not regarded as a search if officers look through the trash.  However, if the trash is still inside the individual’s home, the officers may not search it without a warrant, which requires the officer to have probable cause that the search will lead to evidence.

Prosecutors often argue that the use of drug-sniffing dogs is not a search at all and thus does not violate the Fourth Amendment.  Prosecutors rely on the Supreme Court case Illinois v. Caballes which held that since the dog only alerts to something illegal and an individual does not have a privacy interest in illegal items or substances; the use of drug sniffing dogs is not a search under the Fourth Amendment.  The Supreme Court has embraced this precedent in cases where the dog was used to sniff luggage, the exterior of a car pulled over for a traffic violation, or vehicles stopped at a highway checkpoint.

The Jardinescase can be distinguished because the dog was used to sniff the outside of a home suspected of being used for drug trafficking.  In Jardines, police received a tip that the Jardines’ home was being used to grow marijuana.  On this tip alone, police used a dog to sniff the outside of the home and the dog alerted to the front door.  The officer also said he smelled marijuana and noticed that the air conditioner was continuously running on high.  The officers then obtained a search warrant based on this information and found a marijuana growing operation inside.

The Florida Supreme Court reversed the lower court’s holding that this was not a search under the Fourth Amendment.  The lower court reasoned there was no search because the officers and the dog were legally present on the outside of the home and the dog only alerted to illegal activity.  The Florida Supreme Court disagreed and based their decision on the Supreme Court case Kyllo v. US.  Kyllo held the use of a thermal imaging device pointed at a home to detect heat lamps was unconstitutional.  The Court reasoned that the home is the place where individuals enjoy the greatest amount of privacy rights, the device was not used by the general public, and the device can reveal things inside the home that are not illegal.

The Florida Supreme Court rationalized that the use of drug sniffing dogs outside the home fits into the category set out by Kyllo.  The court reasoned that the use of the dog does not only reveal something illegal; but is also capable of exposing the homeowner to public embarrassment and humiliation when it is carried out in the public view.  The Florida Supreme Court also worried that this rule would lead to the use of dogs in large-scale dragnet style searches. 

The home is the place where individuals enjoy the greatest amount of privacy and I do agree that the use of drug-sniffing dogs in dragnet style searches would violate the Fourth Amendment.  An individual’s right to privacy in their home should preclude the ability of police to simply walk up and down streets checking houses using drug sniffing dogs with no cause whatsoever.  However, I believe Jardines can be differentiated from that situation.  In Jardines, the police went to the house because they received a tip that the house was being used to grow marijuana.  Because of this tip, the officers proceeded to gather additional information in order to obtain a search warrant.  The use of the dog based on this tip was minimally invasive and was an effective way of determining whether illegal substances were present.  Additionally, the officer also noticed the smell of marijuana and the fact that the air conditioner was continually running on high, which indicated, from his experience as a police officer, that the house was being used to grow marijuana.  I do not believe that the danger of public embarrassment and humiliation because neighbors might see the dog amount to the use of the dog being a search in terms of the Fourth Amendment.  The dog did not alert to anything aside from the illegal substance inside the home and the officers had at least some cause to suspect the home was being used to grow marijuana.

Nevertheless, it will be interesting to see how the Supreme Court rules on this case and other dog sniffing cases that will come before it in the new term.  Since the factual situation is so important to the Fourth Amendment right to privacy, this is a continually developing area of law and the Supreme Court has the opportunity to either expand or restrict the ability to use drug-sniffing dogs around the exterior of the home. 

Nicole Irwin

Blogger, Criminal Law Brief