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Florida V. Jardines</Em> Washington and Lee University School of Law Washington & Lee University School of Law Scholarly Commons Scholarly Articles Faculty Scholarship 2013 Florida v. Jardines: The Wolf at the Castle Door Timothy C. MacDonnell Washington and Lee University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlufac Part of the Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, Fourth Amendment Commons, and the Supreme Court of the United States Commons Recommended Citation Timothy C. MacDonnell, Florida v. Jardines: The Wolf at the Castle Door, 7 N.Y.U. J.L. & Liberty 1 (2013). This Article is brought to you for free and open access by the Faculty Scholarship at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Scholarly Articles by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. NEW YORK UNVERSITY JOURNAL OF LAW & LIBERTY FLORIDA V. JARDINES: THE WOLF AT THE CASTLE DOOR Timothy C. MacDonnell* INTRODUCrION Even before the United States declared its independence, colo- nists believed that their homes were their castles.' This belief had its origins in English common law, declared by the Prime Minister of Great Britain, William Pitt, in 1763: The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.2 Timothy C. MacDonnell is Associate Professor of Law, Washington and Lee Uni- versity School of Law. 1 LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 151 (1999). 2 Id. Imaged with Permission of N.Y.U. Journal of Law & Liberty New York University Journal of Law & Liberty [Vol. 7:1 This doctrine is embodied in the Fourth Amendment 3 to our Consti- tution and is currently at a crossroads. Advances in technology and investigative techniques have re- sulted in the "King," or government, being capable of entering a citizen's home without physically crossing its threshold.4 Today, the 5 6 government can hear what is being said, see what is being done, and know what is being written,7 without a physical intrusion into the home. All that stops the King from crossing the threshold of each citizen's home is the Fourth Amendment and the Supreme Court's repeated declaration that "[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." 8 3 U.S. CONST. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."). I In 1968 Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 212, Title III (codified as amended at 18 U.S.C. §§ 2510-2522 (2006)). This statute governed wiretapping and electronic eavesdropping. Jonathan J. Green, Note, Electronic Monitoring in the Workplace: The Needfor Standards, 52 GEO. WASH. L. REV. 438, 440 n.12 (1984); R. Scot Hopkins & Pamela R. Reynolds, Current Development 2002-2003: Redefining Privacy and Security in the Electronic Com- munication Age: A Lawyer's Ethical Duty in the Virtual World of the Internet, 16 GEO. J. LEGAL ETHIcS 675, 681 (2003). 5 Green, supra note 4, at 445. 6 See Tania Branigan, Big Brother: Measure for Measure, THE GUARDIAN (Sept. 13, 2002), http://www.guardian.co.uk/ uk/2002/sep/14/privacy.taniabranigan?INTCMP=SR CH (last visited Nov. 11, 2012) (noting that surveillance experts can use wave detec- tors, optic taps, window bouncers, power surveillance, microchip implants, radiation analysis, and keystroke logging). 7 See Hopkins & Reynolds, supra note 4, at 683 (arguing that in order for the gov- ernment to monitor electronic mail there is usually a requirement to have probable cause and a warrant authorizing the monitoring). 8 E.g., Silverman v. United States, 365 U.S. 505, 511 (1961) (citing Entick v. Carring- ton, 19 Howell's State Trials 1029, 1066 (1765); Boyd v. United States, 116 U.S. 616, 626-30 (1886)). Imaged with Permission of N.Y.U. Journal of Law & Liberty 2013] The Wolf at the Castle Door On January 6, 2012, the United States Supreme Court granted certiorari in Florida v. Jardines,9 a case that has the potential to dra- matically impact the degree of protection the Fourth Amendment provides individuals in their homes. Despite its potential impact, Jardines seems innocuous at first. The State of Florida has appealed the Florida Supreme Court's de- termination that police violated the Fourth Amendment when they used a narcotics dog to sniff the front door of a suspect's home without a warrant. 10 In its brief in support of certiorari, the State of Florida points out that police are already permitted to use narcotics dogs without warrants in airports and at traffic stops.1 Florida and seventeen other states have argued that the dog sniff of an automo- bile is no different than the dog sniff of a home. 12 The claim is that 9 See Jardines v. State, 73 So. 3d 34, 37 (Fla. 2011) (holding "that probable cause, not reasonable suspicion, is the proper evidentiary showing of wrongdoing that the government must make prior to conducting a dog 'sniff test' at a private residence"), cert.granted, 132 S. Ct. 995 (Jan. 6, 2012) (No. 11-564). 10 See id. at 49 (concluding "that a 'sniff test[]' . .. is a substantial government in- trusion into the sanctity of the home and constitutes a 'search' within the meaning of the Fourth Amendment. As such, it warrants the safeguards that inhere in that amendment-specifically, the search must be preceded by an evidentiary showing of wrongdoing"); Petition for Writ of Certiorari at *i,State v. Jardines, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S.Ct. 995 (Jan. 6, 2012) (No. 11-564) (appealing "[w]hether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause"); Florida v. Jardines, 132 S.Ct. 995, 995, 181 L. Ed. 2d 726, 726 (2012) (granting the "[p]etition for writ of certiorari" as to question one). 11Petition for Writ of Certiorari at 14-15, State v. Jardines, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S.Ct. 995 (Jan.6, 2012) (No. 11-564). 12Id.; Brief of the State of Texas et. al. as Amici Curiae Supporting Petitioner at 1, Florida v. Jardines, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S.Ct. 995 (Jan. 6, 2012) (No. 11-564). In addition to the amicus brief from 17 state attorney generals, the United States, the National Police K-9 Association, and Wayne County, Michigan have submitted amici briefs challenging the Florida Supreme Court's ruling. Brief for the United States as Amicus Curiae Supporting Petitioner, Florida v. Jardines, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S.Ct. 995 (Jan.6, 2012) (No. 11-564); Brief of The National Police Canine Association and Police K-9 Magazine As Amici Curiae in Support of Petitioner, Florida v. Jardines, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (Jan.6, 2012) (No. 11-564); Brief of Wayne County, Michigan as Amicus Curi- Imaged with Permission of N.Y.U. Journal of Law & Liberty 4 New York University Journalof Law & Liberty [Vol. 7:1 there is no reasonable expectation of privacy in possessing contra- band, thus any investigative technique that only reveals the pres- ence or absence of contraband is not a search. 13 The logic used to support the canine sniff as a "non-search" threatens to significantly reduce the Fourth Amendment's protection of the home. Courts that have upheld warrantless dog sniffs of the home have done so by applying a line of cases decided by the Supreme Court that carve out an exception to the application of the Fourth Amendment for cases involving investigative techniques ostensibly capable of discovering contraband without otherwise violating a person's privacy interest. 14 Although the Supreme Court has not named this exception, legal scholars have called it the canine search doctrine, the contraband exception, and the binary search doc- trine.15 At its most expansive, the exception declares that individu- ae in Support of Petitioner, Florida v. Jardines, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (Jan. 6, 2012) (No. 11-564). 13See Illinois v. Caballes, 543 U.S. 405, 408 (2005) ("We have held that any interest in possessing contraband cannot be deemed 'legitimate,' and thus, governmental conduct that only reveals the possession of contraband 'compromises no legitimate privacy interest."' (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984))). 14See City of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000); United States v. Ja- cobsen, 466 U.S. 109,123 (1984); United States v. Place, 462 U.S. 696, 707 (1983). 15 See Ric Simmons, The Two Unanswered Questions of Illinois v. Caballes: How to Make the World Safe for Binary Searches, 80 TUL. L. REV. 411, 424 (2005); Ric Sim- mons, From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty- FirstCentury Technologies, 53 HASTINGs L.J.
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