Pit & Quarry, May 2013

BY MICHAEL T HEENAN The Fourth Amendment again T he Fourth Amendment to the United States Constitution states that the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated In a March 2012 article titled Investigatory monitoring I discussed a U S Supreme Court decision that held that it is an unreasonable search if police attach a GPS tracker to a private vehicle so they can follow its route Writing for the majority in that case Justice Antonin Scalia stated It is important to be clear about what occurred in this case The government physically occupied private property a car being a personal effect for the purpose of obtaining information In a case just decided in March of this year Florida v Jardines Justice Scalia again found an unreasonable search along with Justice Clarence Thomas and concurring Justices Elena Kagan Ruth Bader Ginsberg and Sonia Sotomayor In this case two police officers and a drug sniffing dog approached the front entrance of Jardines house in Florida The dog on a six ft lead became excited and kept going back and forth until he finally sat down at the front door which is evidently what these dogs are trained to do when they find the strongest scent The officer who was the handler then took the dog and left the property The other officer on the basis of the dogs detection claimed reasonable cause to obtain a search warrant In executing the warrant the officer found marijuana being grown at the house Jardines was prosecuted At trial Jardines moved to suppress the marijuana evidence on the grounds that the canine investigation was an unreasonable search The trial court granted the motion but the court of appeal reversed The case proceeded to the Florida Supreme Court which then rejected the appeal decision and upheld the trial courts suppression of the evidence The Florida Supreme Court held that the use of a trained narcotics dog to investigate Jardines home was an unconstitutional search The case went from there to the Supreme Court THE ISSUE BEFORE THE U S SUPREME COURT WAS WHETHER THE OFFICERS CONDUCT CONSTITUTED A SEARCH WITHIN THE MEANING OF THE FOURTH AMENDMENT of the United States on what is referred to as a writ of certiorari The courts decision The issue before the U S Supreme Court was whether the officers conduct constituted a search within the meaning of the Fourth Amendment In addressing this the court had to consider that there is basically an implied consent for anyone to walk up to the front door of a house This could include anyone from door to door salespeople to Halloween trick or treaters A police officer could do just that the court noted because it is no more than what any private citizen might do However Justice Scalia wrote To find a visitor knocking on a door is routine even if sometimes unwelcome to spot that same visitor Dogs that are used to detect unlawful explosives or drugs at locations such as quarries do not fall under the U S Supreme Court decision made in Florida v Jardines exploring the front path with a metal detector or marching his bloodhound into the garden before saying hello and asking permission would inspire most of us to well call the police From an early decision Justice Scalia quoted O ur law holds the property of every man so sacred that no man can set his foot upon a neighbors close without his leave Justice Scalia went on to say As it is undisputed that the detectives had all four of their feet and all four of their companions firmly planted on the constitutionally protected extension of Jardines home the only question is whether he had given his leave even implicitly for them to do so He had not In referring to the constitutionally protected extension of Jardines home Justice Scalia referred to case law related to the curtilage which is the area immediately surrounding and associated with the home This is part of the home itself for Fourth Amendment purposes In dealing with the question of whether there was implied consent for the officers to enter Jardines porch with a trained drug detection dog Justice Scalia stated The officers entered the curtilage here The front porch is the classic exemplar of an area to which the activity of home life extends Continued on page 54 50 PIT QUARRY May 2013 www pitandquarry com