The Supreme Court, in a 5-4 split decision, upheld the Florida Supreme Court ruling prohibiting the use of drug dogs to sniff on porches, Florida v. Jardines, Slip No. 11-564 (U.S., 2013). The decision was an interesting coalition of Justices, with Scalia writing the opinion joined by Thomas, Ginsburg, Sotomayor, and Kagan. Roberts, Kennedy, and Breyer joined Justice Alito’s dissent.
Scalia’s opinion should not come as a surprise, as he has discouraged government trespass on private property in other decisions, including the Jones opinion last year. In U.S. v. Jones, Scalia found that placing a GPS tracking device on someone’s vehicle without a warrant constituted a trespass and was impermissible. Likewise, today he writes that when the government enters on the curtilage of a home, they are trespassing if they exceed the implied invitation available to common guests. That is, officers can walk up to the front door and knock, but to bring a trained drug-sniffing dog to conduct a search is a search and a trespass. This case may ultimately prevent officers from looking through windows after approaching a home and its curtilage as well. The court reaffirms the “open fields” doctrine, where law enforcement will receive more latitude, but the immediate curtilage of the home, which must include the porch, carries an expectation of privacy much like the home itself.