Why Does a Dog Sniff Require a Warrant?

A scrambled Supreme Court majority says it counts as a search, but disagrees on the reasoning.
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Swoan Parker/Reuters

"A dog is just a dog until he is standing in front of you," goes an old Haitian Creole proverb. "Then he is Monsieur Dog."

While the nation focused on arguments over same-sex marriage last week, the Court told us what the law thinks when not Monsieur but Deputy Dog is front of your house, sniffing for drugs.

The result should, I hope, not be surprising -- bringing a trained drug dog onto private property and up to a front door to detect drugs, the majority held, is a "search" under the Fourth Amendment and ordinarily will require a warrant to be "reasonable."

Nonetheless, there is much to be gleaned from the opinions in Florida v. Jardines. The result, which seems intuitively right, commanded only a 5-4 majority. And the four-justice minority includes Justice Stephen Breyer, while Justice Antonin Scalia, a conservative, wrote for the majority.

First the facts. Deputy Dog in this case is Franky, a trained operative of the Miami-Dade Police. The police got a tip that Joelis Jardines was growing pot in his house. Police and federal agents descended on the home. They watched to be sure no one was inside, then brought Franky to the front door. Officers keep Franky on a long leash, because he is wild and spins around erratically when sniffing for drugs. After a few seconds, Franky sat in front of the front door -- a signal that he had smelled drugs. Police got a search warrant; the next day, they found marijuana plants and arrested Jardines.

The issue for the Court: was the dog sniff itself a search, for Fourth Amendment purposes? If so, the warrant was invalid, because there was no probable cause for it.

Justice Scalia, writing for the Court, said a sniff is a search. The front porch, he wrote, is considered by the law part of the home, an area that is called curtilage. It is true, Scalia concedes, that strangers (or for that matter police) may walk up to the door and knock. But bringing a trained sniffer dog is something else. "To find a visitor knocking on the door is routine (even if sometimes unwelcome)," he wrote. "[T]o spot that same visitor 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."

Scalia reaches his result much as he did the result in United States v. Jones, a 2012 case in which the Court found that placing a GPS tracker on a private car is a "search" requiring a warrant. He looks to eighteenth-century tort law and the 1765 case of Entick v. Carrington, in which English law enforcement broke into a writer's home and smashed open all his containers to search for "seditious" writings. No dogs were used in the search, but Scalia cites it for the general rule that "no man can set his foot upon his neighbor's close without his leave."

Interestingly enough, Justice Elena Kagan (in a concurring opinion joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor), meets Scalia on his own rhetorical ground. In an even more conversational style, Kagan agrees with Scalia's conclusion while challenging his method. The question is not what the 18th-century Court of King's Bench would have thought of Franky, she suggests, but the test used by modern courts -- whether Jardines had "a reasonable expectation of privacy" in his front porch.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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