FLORIDA v. JARDINES
On November 3, 2006, the Miami-Dade Police Department received an unverified ""crime stoppers"" tip that the home of Joelis Jardines was being used to grow marijuana. On December 6, 2006, two detectives, along with a trained drug detection dog, approached the residence. The dog handler accompanied the dog to the front door of the home. The dog signaled that it detected the scent of narcotics. The detective also personally
The detective prepared an affidavit and applied for a search warrant, which was issued. A search confirmed that marijuana was being grown inside the home. Jardines was arrested and charged with trafficking cannabis. Jardines moved to suppress the evidence seized at his home on the theory that the drug dog's sniff was an impermissible search under the Fourth Amendment and that all subsequent evidence was fruit of the poisonous tree.
The trial court conducted an evidentiary hearing and subsequently ruled to suppress the evidence. The state appealed the suppression ruling and the state appellate court reversed, concluding that no illegal search had occurred since the officer had the right to go up to the defendant's front door and that a warrant was not necessary for the drug dog’s sniff. The Florida Supreme Court reversed the appellate court's decision and concluded that the dog's sniff was a substantial government intrusion into the sanctity of the home and constituted a search within the meaning of the Fourth Amendment. The state of Florida appealed the Florida Supreme Court's decision.
Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog a Fourth Amendment search requiring probable cause?
Legal provision: Fourth amendment
Yes. Justice Antonin Scalia delivered a 5-4 opinion affirming the Florida Supreme Court’s decision. The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes. Typically, ordinary citizens are invited to enter onto the porch, either explicitly or implicitly, to communicate with the house’s occupants. Police officers, however, cannot go beyond the scope of that invitation. Entering a person’s porch for the purposes of conducting a search requires a broader license than the one commonly given to the general public. Without such a license, the police officers were conducting an unlawful search in violation of the Fourth Amendment.
Justice Elena Kagan wrote a concurring opinion in which she argued that the case dealt with privacy issues as well as the property issues the majority opinion addressed. People have a heightened expectation of privacy in their homes and the areas immediately surrounding their homes, and in this case, the police violated that expectation. Because the police officers used a device (a drug-sniffing dog) not in public use to learn details about the home, Justice Kagan argued that an illegal search had been conducted. Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor joined in the concurrence.
Justice Samuel A. Alito dissented, arguing that the majority’s interpretation of the public license to approach a person’s front door is too narrow and should extend even to police officers collecting evidence against an occupant. The dissent argued that the common law of trespass does not limit the public license to a particular category of visitors approaching the door for a specific purpose. Chief Justice John G. Roberts, Justice Anthony M. Kennedy, and Justice Stephen G. Breyer joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
FLORIDA, PETITIONER v. JOELIS JARDINES
on writ of certiorari to the supreme court of florida
[March 26, 2013]
Justice Scalia delivered the opinion of the Court.
We consider whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment.I
In 2006, Detective William Pedraja of the Miami-Dade Police Department received an unverified tip that marijuana was being grown in the home of respondent Joelis Jardines. One month later, the Department and the Drug Enforcement Administration sent a joint surveillance team to Jardines’ home. Detective Pedraja was part of that team. He watched the home for fifteen minutes and saw no vehicles in the driveway or activity around the home, and could not see inside because the blinds were drawn. Detective Pedraja then approached Jardines’ home accompanied by Detective Douglas Bartelt, a trained canine handler who had just arrived at the scene with his drug-sniffing dog. The dog was trained to detect the scent of marijuana, cocaine, heroin, and several other drugs, indicating the presence of any of these substances through particular behavioral changes recognizable by his handler.
Detective Bartelt had the dog on a six-foot leash, owing in part to the dog’s “wild” nature, App. to Pet. for Cert. A–35, and tendency to dart around erratically while searching. As the dog approached Jardines’ front porch, he apparently sensed one of the odors he had been trained to detect, and began energetically exploring the area for the strongest point source of that odor. As Detective Bartelt explained, the dog “began tracking that airborne odor by . . . tracking back and forth,” engaging in what is called “bracketing,” “back and forth, back and forth.” Id., at A– 33 to A–34. Detective Bartelt gave the dog “the full six feet of the leash plus whatever safe distance [he could] give him” to do this—he testified that he needed to give the dog “as much distance as I can.” Id., at A–35. And Detective Pedraja stood back while this was occurring, so that he would not “get knocked over” when the dog was “spinning around trying to find” the source. Id., at A–38.
After sniffing the base of the front door, the dog sat, which is the trained behavior upon discovering the odor’s strongest point. Detective Bartelt then pulled the dog away from the door and returned to his vehicle. He left the scene after informing Detective Pedraja that there had been a positive alert for narcotics.
On the basis of what he had learned at the home, Detective Pedraja applied for and received a warrant to search the residence. When the warrant was executed later that day, Jardines attempted to flee and was arrested; the search revealed marijuana plants, and he was charged with trafficking in cannabis.
At trial, Jardines moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search. The trial court granted the motion, and the Florida Third District Court of Appeal reversed. On a petition for discretionary review, the Florida Supreme Court quashed the decision of the Third District Court of Appeal and approved the trial court’s decision to suppress, holding (as relevant here) that the use of the trained narcotics dog to investigate Jardines’ home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search. 73 So. 3d 34 (2011).
We granted certiorari, limited to the question of whether the officers’ behavior was a search within the meaning of the Fourth Amendment. 565 U. S. ___ (2012).II
The Fourth Amendment provides in relevant part 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.” The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3 (2012) (slip op., at 6, n. 3). By reason of our decision in Katz v. United States, 389 U. S. 347 (1967) , property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County, 506 U. S. 56, 64 (1992) —but though Katz may add to the baseline, it does not subtract anything from the Amendment’s protections “when the Government does engage in [a] physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U. S. 276, 286 (1983) (Brennan, J., concurring in the judgment).
That principle renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.A
The Fourth Amendment “indicates with some precision the places and things encompassed by its protections”: persons, houses, papers, and effects. Oliver v. United States, 466 U. S. 170, 176 (1984) . The Fourth Amendment does not, therefore, prevent all investigations conducted on private property; for example, an officer may (subject to Katz) gather information in what we have called “open fields”—even if those fields are privately owned—because such fields are not enumerated in the Amendment’s text. Hester v. United States, 265 U. S. 57 (1924) .
But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511 (1961) . This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.
We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amendment purposes.” Oliver, supra, at 180. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” Hester, supra, at 59, so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.” 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769). This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 213 (1986) .
While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.” Oliver, 466 U. S., at 182, n. 12. Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which the activity of home life extends.” Ibid.B
Since the officers’ investigation took place in a constitutionally protected area, we turn to the question of whether it was accomplished through an unlicensed physical intrusion. 1 While law enforcement officers need not “shield their eyes” when passing by the home “on public thoroughfares,” Ciraolo, 476 U. S., at 213, an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas. In permitting, for example, visual observation of the home from “public navigable airspace,” we were careful to note that it was done “in a physically nonintrusive manner.” Ibid. Entick v. Carrington, 2 Wils. K. B. 275, 95 Eng. Rep. 807 (K. B. 1765), a case “undoubtedly familiar” to “every American statesman” at the time of the Founding, Boyd v. United States, 116 U. S. 616, 626 (1886) , states the general rule clearly: “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.” 2 Wils. K. B., at 291, 95 Eng. Rep., at 817. As it is undisputed that the detectives had all four of their feet and all four of their companion’s 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.
“A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.” McKee v. Gratz, 260 U. S. 127, 136 (1922) (Holmes, J.). We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” Breard v. Alexandria, 341 U. S. 622, 626 (1951) . This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. 2 Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 16).
But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. 3 To find a visitor knocking on the door is routine (even if sometimes unwelcome); to 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. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search. 4
The State points to our decisions holding that the subjective intent of the officer is irrelevant. See Ashcroft v. al-Kidd, 563 U. S. ___ (2011); Whren v. United States, 517 U. S. 806 (1996) . But those cases merely hold that a stop or search that is objectively reasonable is not vitiated by the fact that the officer’s real reason for making the stop or search has nothing to do with the validating reason. Thus, the defendant will not be heard to complain that although he was speeding the officer’s real reason for the stop was racial harassment. See id., at 810, 813. Here, however, the question before the court is precisely whether the officer’s conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.III
The State argues that investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest. The State cites for authority our decisions in United States v. Place, 462 U. S. 696 (1983) , United States v. Jacobsen, 466 U. S. 109 (1984) , and Illinois v. Caballes, 543 U. S. 405 (2005) , which held, respectively, that canine inspection of luggage in an airport, chemical testing of a substance that had fallen from a parcel in transit, and canine inspection of an automobile during a lawful traffic stop, do not violate the “reasonable expectation of privacy” described in Katz.
Just last Term, we considered an argument much like this. Jones held that tracking an automobile’s whereabouts using a physically-mounted GPS receiver is a Fourth Amendment search. The Government argued that the Katz standard “show[ed] that no search occurred,” as the defendant had “no ‘reasonable expectation of privacy’ ” in his whereabouts on the public roads, Jones, 565 U. S., at ___ (slip op., at 5)—a proposition with at least as much support in our case law as the one the State marshals here. See, e.g., United States v. Knotts, 460 U. S. 276, 278 (1983) . But because the GPS receiver had been physically mounted on the defendant’s automobile (thus intruding on his “effects”), we held that tracking the vehicle’s movements was a search: a person’s “ Fourth Amendment rights do not rise or fall with the Katz formulation.” Jones, supra, at ___ (slip op., at 5). The Katz reasonable-expectations test “has been added to, not substituted for,” the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas. Jones, supra, at ___ (slip op., at 8).
Thus, we need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz. One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.
For a related reason we find irrelevant the State’s argument (echoed by the dissent) that forensic dogs have been commonly used by police for centuries. This argument is apparently directed to our holding in Kyllo v. United States, 533 U. S. 27 (2001) , that surveillance of the home is a search where “the Government uses a device that is not in general public use” to “explore details of the home that would previously have been unknowable without physical intrusion.” Id., at 40 (emphasis added). But the implication of that statement (inclusio unius est exclusio alterius) is that when the government uses a physical intrusion to explore details of the home (including its curtilage), the antiquity of the tools that they bring along is irrelevant.* * *
The government’s use of trained police dogs to investigate the home and its immediate surroundings is a “search” within the meaning of the Fourth Amendment. The judgment of the Supreme Court of Florida is therefore affirmed.
It is so ordered.
1 At oral argument, the State and its amicus the Solicitor General argued that Jardines conceded in the lower courts that the officers had a right to be where they were. This misstates the record. Jardines conceded nothing more than the unsurprising proposition that the of-ficers could have lawfully approached his home to knock on the front door in hopes of speaking with him. Of course, that is not what they did.
2 With this much, the dissent seems to agree—it would inquire into “ ‘the appearance of things,’ ” post, at 5 (opinion of Alito, J.), what is “typica[l]” for a visitor, ibid., what might cause “alarm” to a “resident of the premises,” ibid., what is “expected” of “ordinary visitors,” ibid., and what would be expected from a “ ‘reasonably respectful citizen,’ ” post, at 7. These are good questions. But their answers are incompatible with the dissent’s outcome, which is presumably why the dissent does not even try to argue that it would be customary, usual, reasonable, respectful, ordinary, typical, nonalarming, etc., for a stranger to explore the curtilage of the home with trained drug dogs.
3 The dissent insists that our argument must rest upon “the particular instrument that Detective Bartelt used to detect the odor of mari-juana”—the dog. Post, at 8. It is not the dog that is the problem, but the behavior that here involved use of the dog. We think a typical person would find it “ ‘a cause for great alarm’ ” (the kind of reaction the dis-sent quite rightly relies upon to justify its no-night-visits rule, post,at 5) to find a stranger snooping about his front porch with or withouta dog. The dissent would let the police do whatever they want by way of gathering evidence so long as they stay on the base-path, to use a baseball analogy—so long as they “stick to the path that is typically used to approach a front door, such as a paved walkway.” Ibid. From that vantage point they can presumably peer into the house through binoculars with impunity. That is not the law, as even the State con-cedes. See Tr. of Oral Arg. 6.
4 The dissent argues, citing King, that “gathering evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach.” Post, at 7. That is a false generalization. What King establishes is that it is not a Fourth Amendment search to approach the home in order to speak with the occupant, because all are invited to do that. The mere “purpose of discovering information,” post, at 8, in the course of engaging in that permitted conduct does not cause it to violate the Fourth Amendment. But no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.
SUPREME COURT OF THE UNITED STATES
FLORIDA, PETITIONER v. JOELIS JARDINES
on writ of certiorari to the supreme court of florida
[March 26, 2013]
Justice Alito, with whom The Chief Justice, Justice Kennedy, and Justice Breyer join, dissenting.
The Court’s decision in this important Fourth Amendment case is based on a putative rule of trespass law that is nowhere to be found in the annals of Anglo-American jurisprudence.
The law of trespass generally gives members of the public a license to use a walkway to approach the front door of a house and to remain there for a brief time. This license is not limited to persons who intend to speak to an occupant or who actually do so. (Mail carriers and persons delivering packages and flyers are examples of individuals who may lawfully approach a front door without intending to converse.) Nor is the license restricted to categories of visitors whom an occupant of the dwelling is likely to welcome; as the Court acknowledges, this license applies even to “solicitors, hawkers and peddlers of all kinds.” Ante, at 6 (internal quotation marks omitted). And the license even extends to police officers who wish to gather evidence against an occupant (by asking potentially incriminating questions).
According to the Court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent’s house by his dog, Franky. Where is the authority evidencing such a rule? Dogs have been domesticated for about 12,000 years; 1 they were ubiquitous in both this country and Britain at the time of the adoption of the Fourth Amendment; 2 and their acute sense of smell has been used in law enforcement for centuries. 3 Yet the Court has been unable to find a single case—from the United States or any other common-law nation—that supports the rule on which its decision is based. Thus, trespass law provides no support for the Court’s holding today.
The Court’s decision is also inconsistent with the reasonable-expectations-of-privacy test that the Court adopted in Katz v. United States, 389 U. S. 347 (1967) . A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human.
For these reasons, I would hold that no search within the meaning of the Fourth Amendment took place in this case, and I would reverse the decision below.I
The opinion of the Court may leave a reader with the mistaken impression that Detective Bartelt and Franky remained on respondent’s property for a prolonged period of time and conducted a far-flung exploration of the front yard. See ante, at 4 (“trawl for evidence with impunity”), 7 (“marching his bloodhound into the garden”). But that is not what happened.
Detective Bartelt and Franky approached the front door via the driveway and a paved path—the route that any visitor would customarily use 4 —and Franky was on the kind of leash that any dog owner might employ. 5 As Franky approached the door, he started to track an airborne odor. He held his head high and began “bracketing” the area (pacing back and forth) in order to determine the strongest source of the smell. App. 95–96. Detective Bartelt knew “the minute [he] observed” this behavior that Franky had detected drugs. Id., at 95. Upon locating the odor’s strongest source, Franky sat at the base of the front door, and at this point, Detective Bartelt and Franky immediately returned to their patrol car. Id., at 98.
A critical fact that the Court omits is that, as respondent’s counsel explained at oral argument, this entire process—walking down the driveway and front path to the front door, waiting for Franky to find the strongest source of the odor, and walking back to the car—took approximately a minute or two. Tr. of Oral Arg. 57–58. Thus, the amount of time that Franky and the detective remained at the front porch was even less. The Court also fails to mention that, while Detective Bartelt apparently did not personally smell the odor of marijuana coming from the house, another officer who subsequently stood on the front porch, Detective Pedraja, did notice that smell and was able to identify it. App. 81.II
The Court concludes that the conduct in this case was a search because Detective Bartelt exceeded the boundaries of the license to approach the house that is recognized by the law of trespass, but the Court’s interpretation of the scope of that license is unfounded.A
It is said that members of the public may lawfully proceed along a walkway leading to the front door of a house because custom grants them a license to do so. Breard v. Alexandria, 341 U. S. 622, 626 (1951) ; Lakin v. Ames, 64 Mass. 198, 220 (1852); J. Bishop, Commentaries on the Non-Contract Law §823, p. 378 (1889). This rule encompasses categories of visitors whom most homeowners almost certainly wish to allow to approach their front doors—friends, relatives, mail carriers, persons making deliveries. But it also reaches categories of visitors who are less universally welcome—“solicitors,” “hawkers,” “peddlers,” and the like. The law might attempt to draw fine lines between categories of welcome and unwelcome visitors, distinguishing, for example, between tolerable and intolerable door-to-door peddlers (Girl Scouts selling cookies versus adults selling aluminum siding) or between police officers on agreeable and disagreeable missions (gathering information about a bothersome neighbor versus asking potentially incriminating questions). But the law of trespass has not attempted such a difficult taxonomy. See Desnick v. American Broadcasting Cos., 44 F. 3d 1345, 1351 (CA7 1995) (“[C]onsent to an entry is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause him for perfectly understandable and generally ethical or at least lawful reasons to revoke his consent”); cf. Skinner v. Ogallala Public School Dist., 262 Neb. 387, 402, 631 N. W. 2d 510, 525 (2001) (“[I]n order to determine if a business invitation is implied, the inquiry is not a subjective assessment of why the visitor chose to visit the premises in a particular instance”); Crown Cork & Seal Co. v. Kane, 213 Md. 152, 159, 131 A. 2d 470, 473–474 (1957) (noting that “there are many cases in which an invitation has been implied from circumstances, such as custom,” and that this test is “objective in that it stresses custom and the appearance of things” as opposed to “the undisclosed intention of the visitor”).
Of course, this license has certain spatial and temporal limits. A visitor must stick to the path that is typically used to approach a front door, such as a paved walkway. A visitor cannot traipse through the garden, meander into the backyard, or take other circuitous detours that veer from the pathway that a visitor would customarily use. See, e.g., Robinson v. Virginia, 47 Va. App. 533, 549–550, 625 S. E. 2d 651, 659 (2006) (en banc); United States v. Wells, 648 F. 3d 671, 679–680 (CA8 2011) (police exceeded scope of their implied invitation when they bypassed the front door and proceeded directly to the back yard); State v. Harris, 919 S. W. 2d 619, 624 (Tenn. Crim. App. 1995) (“Any substantial and unreasonable departure from an area where the public is impliedly invited exceeds the scope of the implied invitation . . . ” (internal quotation marks and brackets omitted)); 1 W. LaFave, Search and Seizure §2.3(c), p. 578 (2004) (hereinafter LaFave); id., §2.3(f), at 600–603 (“[W]hen the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment” (footnotes omitted)).
Nor, as a general matter, may a visitor come to the front door in the middle of the night without an express invitation. See State v. Cada, 129 Idaho 224, 233, 923 P. 2d 469, 478 (App. 1996) (“Furtive intrusion late at night or in the predawn hours is not conduct that is expected from ordinary visitors. Indeed, if observed by a resident of the premises, it could be a cause for great alarm”).
Similarly, a visitor may not linger at the front door for an extended period. See 9 So. 3d 1, 11 (Fla. App. 2008) (case below) (Cope, J., concurring in part and dissenting in part) (“[T]here is no such thing as squatter’s rights on a front porch. A stranger may not plop down uninvited to spend the afternoon in the front porch rocking chair, or throw down a sleeping bag to spend the night, or lurk on the front porch, looking in the windows”). The license is limited to the amount of time it would customarily take to approach the door, pause long enough to see if someone is home, and (if not expressly invited to stay longer), leave.
As I understand the law of trespass and the scope of the implied license, a visitor who adheres to these limitations is not necessarily required to ring the doorbell, knock on the door, or attempt to speak with an occupant. For example, mail carriers, persons making deliveries, and individuals distributing flyers may leave the items they are carrying and depart without making any attempt to converse. A pedestrian or motorist looking for a particular address may walk up to a front door in order to check a house number that is hard to see from the sidewalk or road. A neighbor who knows that the residents are away may approach the door to retrieve an accumulation of newspapers that might signal to a potential burglar that the house is unoccupied.
As the majority acknowledges, this implied license to approach the front door extends to the police. See ante, at 6. As we recognized in Kentucky v. King, 563 U. S. ___ (2011), police officers do not engage in a search when they approach the front door of a residence and seek to engage in what is termed a “knock and talk,” i.e., knocking on the door and seeking to speak to an occupant for the purpose of gathering evidence. See id., at ___ (slip op., at 16) (“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do”). See also 1 LaFave §2.3(e), at 592 (“It is not objectionable for an officer to come upon that part of the property which has been opened to public common use” (internal quotation marks omitted)). Even when the objective of a “knock and talk” is to obtain evidence that will lead to the homeowner’s arrest and prosecution, the license to approach still applies. In other words, gathering evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach. And when officers walk up to the front door of a house, they are permitted to see, hear, and smell whatever can be detected from a lawful vantage point. California v. Ciraolo, 476 U. S. 207, 213 (1986) (“The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares”); Cada, supra, at 232, 923 P. 2d, at 477 (“[P]olice officers restricting their activity to [areas to which the public is impliedly invited] are permitted the same intrusion and the same level of observation as would be expected from a reasonably respectful citizen” (internal quotation marks omitted)); 1 LaFave §§2.2(a), 2.3(c), at 450–452, 572–577.B
Detective Bartelt did not exceed the scope of the license to approach respondent’s front door. He adhered to the customary path; he did not approach in the middle of the night; and he remained at the front door for only a very short period (less than a minute or two).
The Court concludes that Detective Bartelt went too far because he had the “objectiv[e] . . . purpose to conduct a search.” Ante, at 8 (emphasis added). What this means, I take it, is that anyone aware of what Detective Bartelt did would infer that his subjective purpose was to gather evidence. But if this is the Court’s point, then a standard “knock and talk” and most other police visits would likewise constitute searches. With the exception of visits to serve warrants or civil process, police almost always approach homes with a purpose of discovering information. That is certainly the objective of a “knock and talk.” The Court offers no meaningful way of distinguishing the “objective purpose” of a “knock and talk” from the “objective purpose” of Detective Bartelt’s conduct here.
The Court contends that a “knock and talk” is different because it involves talking, and “all are invited” to do that. Ante, at 7–8, n. 4 (emphasis deleted). But a police officer who approaches the front door of a house in accordance with the limitations already discussed may gather evidence by means other than talking. The officer may observe items in plain view and smell odors coming from the house. Ciraolo, supra, at 213; Cada, 129 Idaho, at 232, 923 P. 2d, at 477; 1 LaFave §§2.2(a), 2.3(c), at 450–452, 572–577. So the Court’s “objective purpose” argument cannot stand.
What the Court must fall back on, then, is the particular instrument that Detective Bartelt used to detect the odor of marijuana, namely, his dog. But in the entire body of common-law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass. G. Williams, Liability for Animals 136–146 (1939); J. Ingham, A Treatise on Property in Animals Wild and Domestic and the Rights and Responsibilities Arising Therefrom 277–278 (1900). Cf. B. Markesinis & S. Deakin, Tort Law 511 (4th ed. 1999).
The Court responds that “[i]t is not the dog that is the problem, but the behavior that here involved use of the dog.” Ante, at 7, n. 3. But where is the support in the law of trespass for this proposition? Dogs’ keen sense of smell has been used in law enforcement for centuries. The antiquity of this practice is evidenced by a Scottish law from 1318 that made it a crime to “disturb a tracking dog or the men coming with it for pursuing thieves or seizing malefactors.” K. Brown et al., The Records of the Parliaments of Scotland to 1707, (St Andrews, 2007–2013), online at http://www.rps.ac.uk/mss/1318/9. If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years. But the Court has found none.
For these reasons, the real law of trespass provides no support for the Court’s holding today. While the Court claims that its reasoning has “ancient and durable roots,” ante, at 4, its trespass rule is really a newly struck counterfeit.III
The concurring opinion attempts to provide an alternative ground for today’s decision, namely, that Detective Bartelt’s conduct violated respondent’s reasonable expectations of privacy. But we have already rejected a very similar, if not identical argument, see Illinois v. Caballes, 543 U. S. 405 –410 (2005), and in any event I see no basis for concluding that the occupants of a dwelling have a reasonable expectation of privacy in odors that emanate from the dwelling and reach spots where members of the public may lawfully stand.
It is clear that the occupant of a house has no reasonable expectation of privacy with respect to odors that can be smelled by human beings who are standing in such places. See United States v. Johns, 469 U. S. 478, 482 (1985) (“After the officers came closer and detected the distinct odor of marihuana, they had probable cause to believe that the vehicles contained contraband”); United States v. Ventresca, 380 U. S. 102, 111 (1965) (scent of fermenting mash supported probable cause for warrant); United States v. Johnston, 497 F. 2d 397, 398 (CA9 1974) (there is no “reasonable expectation of privacy from drug agents with inquisitive nostrils”). And I would not draw a line between odors that can be smelled by humans and those that are detectible only by dogs.
Consider the situation from the point of view of the occupant of a building in which marijuana is grown or methamphetamine is manufactured. Would such an occupant reason as follows? “I know that odors may emanate from my building and that atmospheric conditions, such as the force and direction of the wind, may affect the strength of those odors when they reach a spot where members of the public may lawfully stand. I also know that some people have a much more acute sense of smell than others, 6 and I have no idea who might be standing in one of the spots in question when the odors from my house reach that location. In addition, I know that odors coming from my building, when they reach these locations, may be strong enough to be detected by a dog. But I am confident that they will be so faint that they cannot be smelled by any human being.” Such a finely tuned expectation would be entirely unrealistic, and I see no evidence that society is prepared to recognize it as reasonable.
In an attempt to show that respondent had a reasonable expectation of privacy in the odor of marijuana wafting from his house, the concurrence argues that this case is just like Kyllo v. United States, 533 U. S. 27 (2001) , which held that police officers conducted a search when they used a thermal imaging device to detect heat emanating from a house. Ante, at 3–4 (opinion of Kagan, J.). This Court, however, has already rejected the argument that the use of a drug-sniffing dog is the same as the use of a thermal imaging device. See Caballes, 543 U. S., at 409–410. The very argument now advanced by the concurrence appears in Justice Souter’s Caballes dissent. See id., at 413, and n. 3. But the Court was not persuaded.
Contrary to the interpretation propounded by the concurrence, Kyllo is best understood as a decision about the use of new technology. The Kyllo Court focused on the fact that the thermal imaging device was a form of “sense-enhancing technology” that was “not in general public use,” and it expressed concern that citizens would be “at the mercy of advancing technology” if its use was not restricted. 533 U. S., at 34–35. A dog, however, is not a new form of “technology or a “device.” And, as noted, the use of dogs’ acute sense of smell in law enforcement dates back many centuries.
The concurrence suggests that a Kyllo-based decision would be “much like” the actual decision of the Court, but that is simply not so. The holding of the Court is based on what the Court sees as a “ ‘physical intrusion of a constitutionally protected area.’ ” Ante, at 3 (quoting United States v. Knotts, 460 U. S. 276, 286 (1983) (Brennan, J., concurring in judgment)). As a result, it does not apply when a dog alerts while on a public sidewalk or street or in the corridor of a building to which the dog and handler have been lawfully admitted.
The concurrence’s Kyllo-based approach would have a much wider reach. When the police used the thermal imaging device in Kyllo, they were on a public street, 533 U. S., at 29, and “committed no trespass.” Ante, at 3. Therefore, if a dog’s nose is just like a thermal imaging device for Fourth Amendment purposes, a search would occur if a dog alerted while on a public sidewalk or in the corridor of an apartment building. And the same would be true if the dog was trained to sniff, not for marijuana, but for more dangerous quarry, such as explosives or for a violent fugitive or kidnaped child. I see no ground for hampering legitimate law enforcement in this way.IV
The conduct of the police officer in this case did not constitute a trespass and did not violate respondent’s reasonable expectations of privacy. I would hold that this conduct was not a search, and I therefore respectfully dissent.
1 See, e.g., Sloane, Dogs in War, Police Work and on Patrol, 46 J. Crim. L., C. & P. S. 385 (1955–1956) (hereinafter Sloane).
2 M. Derr, A Dog’s History of America 68–92 (2004); K. Olsen, Daily Life in 18th-Century England 32–33 (1999).
3 Sloane 388–389.
4 See App. 94; App. to Brief for Respondent 1A (depiction of respondent’s home).
5 The Court notes that Franky was on a 6-foot leash, but such aleash is standard equipment for ordinary dog owners. See, e.g.,J. Stregowski, Four Dog Leash Varieties, http://dogs.about.com/od/toyssupplies/tp/Dog-Leashes.htm (all Internet materials as visited Mar. 21, 2013, and available in Clerk of Court’s case file).
6 Some humans naturally have a much more acute sense of smell than others, and humans can be trained to detect and distinguish odors that could not be detected without such training. See E. Hancock, A Primer on Smell, http://www.jhu.edu/jhumag/996web/smell.html. Some individuals employed in the perfume and wine industries, for example, have an amazingly acute sense of smell. Ibid.
SUPREME COURT OF THE UNITED STATES
FLORIDA, PETITIONER v. JOELIS JARDINES
on writ of certiorari to the supreme court of florida
[March 26, 2013]
Justice Kagan, with whom Justice Ginsburg and Justice Sotomayor join, concurring.
For me, a simple analogy clinches this case—and does so on privacy as well as property grounds. A stranger comes to the front door of your home carrying super-high-powered binoculars. See ante, at 7, n. 3. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners. It doesn’t take long (the binoculars are really very fine): In just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one. Has your “visitor” trespassed on your property, exceeding the license you have granted to members of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your “reasonable expectation of privacy,” by nosing into intimacies you sensibly thought protected from disclosure? Katz v. United States, 389 U. S. 347, 360 (1967) (Harlan, J., concurring). Yes, of course, he has done that too.
That case is this case in every way that matters. Here, police officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equip-ment they used was animal, not mineral. But contra the dissent, see post, at 2 (opinion of Alito, J.) (noting the ubiquity of dogs in American households), that is of no significance in determining whether a search occurred. Detective Bartelt’s dog was not your neighbor’s pet, come to your porch on a leisurely stroll. As this Court discussed earlier this Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners. See Florida v. Harris, 568 U. S. ___ (2013) (slip op. at 2–3, 7–8). They are to the poodle down the street as high-powered binoculars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home—the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the Court holds to-day. Was it also an invasion of privacy? Yes, that as well.
The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests. A decision along those lines would have looked . . . well, much like this one. It would have talked about “ ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ ” Ante, at 4 (quoting Silverman v. United States, 365 U. S. 505, 511 (1961) ). It would have insisted on maintaining the “practical value” of that right by preventing police officers from standing in an adjacent space and “trawl[ing] for evidence with impunity.” Ante, at 4. It would have explained that “ ‘privacy expectations are most heightened’ ” in the home and the surrounding area. Ante, at 4–5 (quoting California v. Ciraolo, 476 U. S. 207, 213 (1986) ). And it would have determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there. See ante, at 6–7, and nn. 2–3.
It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property “naturally enough influence[s]” our “shared social expectations” of what places should be free from governmental incursions. Georgia v. Randolph, 547 U. S. 103, 111 (2006) ; see Rakas v. Illinois, 439 U. S. 128, 143, n. 12 (1978) . And so the sentiment “my home is my own,” while originating in property law, now also denotes a common understanding—extending even beyond that law’s formal protections—about an especially private sphere. Jardines’ home was his property; it was also his most intimate and familiar space. The analysis proceeding from each of those facts, as today’s decision reveals, runs mostly along the same path.
I can think of only one divergence: If we had decided this case on privacy grounds, we would have realized that Kyllo v. United States, 533 U. S. 27 (2001) , already resolved it. 1 The Kyllo Court held that police officers conducted a search when they used a thermal-imaging device to detect heat emanating from a private home, even though they committed no trespass. Highlighting our intention to draw both a “firm” and a “bright” line at “the entrance to the house,” id., at 40, we announced the following rule:
“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Ibid.
That “firm” and “bright” rule governs this case: The police officers here conducted a search because they used a “device . . . not in general public use” (a trained drug-detection dog) to “explore details of the home” (the presence of certain substances) that they would not otherwise have discovered without entering the premises.
And again, the dissent’s argument that the device is just a dog cannot change the equation. As Kyllo made clear, the “sense-enhancing” tool at issue may be “crude” or “sophisticated,” may be old or new (drug-detection dogs actually go back not “12,000 years” or “centuries,” post, at 2, 8, 12, but only a few decades), may be either smaller or bigger than a breadbox; still, “at least where (as here)” the device is not “in general public use,” training it on a home violates our “minimal expectation of privacy”—an expectation “that exists, and that is acknowledged to be reasonable.” 533 U. S., at 34, 36. 2 That does not mean the device is off-limits, as the dissent implies, see post, at 11–12; it just means police officers cannot use it to examine a home without a warrant or exigent circumstance. See Brigham City v. Stuart, 547 U. S. 398 –404 (2006) (describing exigencies allowing the warrantless search of a home).
With these further thoughts, suggesting that a focus on Jardines’ privacy interests would make an “easy cas[e] easy” twice over, ante, at 10, I join the Court’s opinion in full.
1 The dissent claims, alternatively, that Illinois v. Caballes, 543 U. S. 405 –410 (2005), controls this case (or nearly does). See post, at 9, 11. But Caballes concerned a drug-detection dog’s sniff of an automobile during a traffic stop. See also Florida v. Harris, 568 U. S. ___ (2013). And we have held, over and over again, that people’s expectations of privacy are much lower in their cars than in their homes. See, e.g., Arizona v. Gant, 556 U. S. 332, 345 (2009) ; Wyoming v. Houghton, 526 U. S. 295, 303 (1999) ; New York v. Class, 475 U. S. 106, 115 (1986) ; Cardwell v. Lewis, 417 U. S. 583 –591 (1974) (plurality opinion).
2 The dissent’s other principal reason for concluding that no violation of privacy occurred in this case—that police officers themselves might detect an aroma wafting from a house—works no better. If officers can smell drugs coming from a house, they can use that information; a human sniff is not a search, we can all agree. But it does not follow that a person loses his expectation of privacy in the many scents within his home that (his own nose capably tells him) are not usually detectible by humans standing outside. And indeed, Kyllo already decided as much. In response to an identical argument from the dissent in that case, see 533 U. S., at 43 (Stevens, J., dissenting) (noting that humans can sometimes detect “heat emanating from a building”), the Kyllo Court stated: “The dissent’s comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home . . . is quite irrelevant. The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. . . . In any event, [at the time in question,] no outside observer could have discerned the relative heat of Kyllo’s home without thermal imaging.” Id., at 35, n. 2.
ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-564, Florida v. Jardines.
Gregory G. Garre: Thank you, Mr. Chief Justice, and may it please the Court:
In the three prior cases in which this Court has held that a dog sniff is not a search, this Court has emphasized that a dog sniff is unique, both in terms of the manner in which information is obtained and the nature of the information revealed.
As to the latter point, this Court has emphasized that a drug detection dog reveals only the presence of contraband, and that no one has a legitimate expectation of privacy in that.
Justice Anthony Kennedy: I mean, that just can't be a proposition that we can accept across the board.
Nobody under that view has an interest in contraband in their home.
The question is, can you find out the contraband?
It's just a circular argument.
And if -- and in the -- was it the Caballes case that talked about that, if I have the right name?
That was where the contraband was visible; it was almost like the smoking gun falls out.
Well, of course, there's no interest in the smoking gun when it falls out in front of you.
So I just don't think that works.
Gregory G. Garre: Well, Justice Kennedy, in the Caballes case, the contraband wasn't visible before the dog alerted.
In the home case, we're not saying that you don't have a legitimate expectation of privacy in the home.
Of course, you do.
The question is whether you have a legitimate expectation--
Justice Sonia Sotomayor: So doesn't that mean that what's in your home that's not visible to the public has an expectation of privacy as well?
Gregory G. Garre: --Not when it comes to contraband, Your Honor.
And we think that the Kyllo case helps--
Justice Sonia Sotomayor: But that -- that is circular.
Then why do you need a search warrant?
If you have no expectation of privacy in the contraband, why bother even with a search warrant?
Gregory G. Garre: --Because, Your Honor, when you have a search warrant and you go into a home, there's going to be a lot of private information that you're going to come across, even if your expectation is finding evidence of a crime.
Justice Ruth Bader Ginsburg: Mr. Garre, does your argument mean -- you say minimally intrusive, and that the dog will detect only contraband, that the police then are to go into a neighborhood that's known to be a drug dealing neighborhood, go into -- just go down the street, have the dog sniff in front of every door, or go into an apartment building?
Is that -- I gather that that is your position.
Gregory G. Garre: Your Honor, they could do that, just like the police could go door to door and to knock on the doors and hope that they will find out evidence of wrongdoing that way.
But the two responses this Court has always pointed to is the restraint on resources and the check of community hostility.
Here, the police were combatting a serious epidemic of grow houses, hundreds of houses each year that were a scourge to the community, not only in terms just of the drugs that they were growing--
Justice Ruth Bader Ginsburg: How is it -- supposed the house had on the lawn, no dogs allowed?
Gregory G. Garre: --I think that would be different, Your Honor.
It would be -- and that's a way in which the house is different than a car.
Homeowners can restrict access to people who come up to their front door by putting gates or a sign out front.
Justice Antonin Scalia: Well, that's right.
And there's such a thing as what is called the curtilage of a house.
As I understand the law, the police are entitled to use binoculars to look into the house if -- if the residents leave the blinds open, right?
Gregory G. Garre: That's right.
Justice Antonin Scalia: But if they can't see clearly enough from a distance, they're not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point, are they?
Gregory G. Garre: They're not, Your Honor.
Justice Antonin Scalia: Why isn't it the same thing with the dog?
This dog was brought right up -- right up to the -- to the door of the house.
Gregory G. Garre: Your Honor, first of all, I think that, as this case comes to the Court, the police were lawfully present at the front door.
That was established by the courts below, and we don't think that they've challenged it here.
That's at least true with respect to the police officer.
The police officer could go up to the front door and knock and detect the smell of marijuana, just like Officer Pedraja did.
Justice Antonin Scalia: Well, then we've taken an unrealistic case, if that has been conceded, because it seems to me crucial that this officer went onto the portion of the house that -- as to which there is privacy, and -- and used a means of -- of discerning what was in the house that -- that should not have been available--
Gregory G. Garre: Well, I think the way you would--
Justice Antonin Scalia: --in that space.
Gregory G. Garre: --I think the way that you would answer that question, Your Honor, is, of course, there's a curtilage that extends around the house and protects, in which the homeowner has a reasonable expectation of privacy.
It's well established, we think, going back to the common law, that there is an implied consent for people, visitors, salesmen, Girl Scouts, trick-or-treaters, to come up to your house and knock on the door--
Justice Ruth Bader Ginsburg: Yes, but not implied consent for the policeman to come up with the dog.
The only purpose of the dog is to detect contraband.
So you can say, yes, there's an implied invitation to the Girl Scout cookie seller, to the postman, even to the police officer, but not police officer with dog, when the only reason for having the dog is to find out if there's contraband in the house.
Gregory G. Garre: --Well, Justice Ginsburg, first of all, I think, if the Girl Scout or the salesman or the trick-or-treater brought up a dog with them, there would be implied consent for that too, at least as long as the dog was on a leash.
I don't think the subjective--
Justice Ruth Bader Ginsburg: This is not any dog.
This is a drug detecting dog.
Gregory G. Garre: --No, that's right.
But I don't think it changes the subjective purpose of why they brought the dog with them.
Justice Sonia Sotomayor: Why is that an implied consent?
That's a huge assumption.
At least in the cities that I've lived in, you have to have a dog on a leash.
And you don't give implied consent.
If you're allergic to animals, you don't want dogs walking around at your door.
Gregory G. Garre: Well, you can certainly put the “ No Dogs Allowed ” sign out front.
And there, there would not be implied consent.
Justice Sonia Sotomayor: No, no, no.
But tell me why that you presume that there's implied consent?
Gregory G. Garre: Well, we start with the proposition that--
Justice Sonia Sotomayor: Do you think homeowners freely let dogs just come into their apartment?
I mean, there might be some homes that do.
Gregory G. Garre: --Well, certainly not in an apartment, Your Honor.
This search took place, the dog walked up the same way that a salesman would and alerted at the front of the door.
He didn't go in--
Justice Sonia Sotomayor: So we're going to treat it like a human being now?
You're invited to knock on my door because you're a dog?
Gregory G. Garre: --No, I think -- and certainly this is true in my neighborhood, Your Honor, is neighbors can bring their dog up on the leash when they knock on your front door, and I think that's true in most neighborhoods in America.
Homeowners that don't like dogs and want them off their property have a way to combat that, and that's putting a fence around it to say, no dogs--
Justice Sonia Sotomayor: So now we tell--
Gregory G. Garre: --allowed.
Justice Sonia Sotomayor: --all the drug dealers, put up a sign that says “ No dogs ”.
Gregory G. Garre: Well, they could, Your Honor.
There are certainly houses that have that.
But with respect to the question--
Justice Sonia Sotomayor: Isn't it fair just to assume that -- what's logical?
I -- I let people knock on my door because they have to say something to me.
I don't let a dog come up to my door -- I don't willy-nilly invite it to come up to my door.
Gregory G. Garre: --And I think -- Your Honor, I think the reason why that doesn't work here is that if you ask that question with respect to the officer, I think it's well settled or accepted that police officers can walk up the front path, absent a sign or something, knock on the door--
Justice Sonia Sotomayor: That implied consent, does that include them coming up and -- up to your porch and sweeping stuff into a garbage pan?
Gregory G. Garre: --I don't think it would, Your Honor.
I think that we're talking about going up there, knocking on the door.
The police officer cannot just--
Justice Antonin Scalia: Police officers can come there to knock on the door, but I thought you've conceded that police officers can't come there to look into the house with binoculars, right?
Gregory G. Garre: --With binoculars--
Justice Antonin Scalia: When the purpose of the officer's going there is to -- is to conduct a search, it's not permitted.
Gregory G. Garre: --If the purpose of the police officer here, for example, was to walk up to the house, hope that they answered the door, or hope that once they were up there, that they would smell the odor of marijuana, as Officer Pedraja did, that would not convert it into a search.
There was no invasion, physical invasion.
Justice Stephen G. Breyer: That's true, but if you're looking at expectation of a reasonable homeowner, imagine you have a home, a long driveway.
You do expect people to come up and come into the house, knock on the door, maybe even with dogs.
Do you expect them to sit there for 5 to 15 minutes, 15 minutes, not knocking on the door, doing nothing?
Gregory G. Garre: Well, Your Honor--
Justice Stephen G. Breyer: --is that something I wouldn't -- would you be nervous about that?
Gregory G. Garre: --I think--
Justice Stephen G. Breyer: Anyone coming to your door and not knocking.
Gregory G. Garre: --I think what -- I think what happened here--
Justice Stephen G. Breyer: Just sniffing.
Gregory G. Garre: --Well, I think everyone accepts when someone comes to your door, they can avail themselves of their God-given senses, whether it's looking into a window without binoculars, taking -- breathing in and smelling the air, as Officer Pedraja did.
I don't think there's a constitutional difference when the person has--
Justice Stephen G. Breyer: No, there is in this sense.
Justice Scalia just said it.
He said, you do have an expectation of people coming into your door, perhaps even with animals, perhaps even with binoculars, but not looking into the house, not looking into the house from the front step with the binoculars.
Now, why is that unconstitutional?
Because it's very unusual that someone would do that, and the homeowner would resent it.
Gregory G. Garre: --Well, Your Honor--
Justice Stephen G. Breyer: Would a homeowner resent someone coming with a large animal sitting in front of his front step on his property and sitting there sniffing for 5 to 15 minutes?
Forget the sniffing.
Just talking, loud noises.
Is that something that you invite people to do?
Gregory G. Garre: --Your Honor, what I think you can say there is implied consent to is a dog accompanying a person on a leash walking up to the front door, taking a sniff in a matter of seconds, not minutes--
Justice Stephen G. Breyer: Ah.
Is that what happened here?
Justice Elena Kagan: Well, that's not what the record says, Mr. Garre.
Justice Stephen G. Breyer: I thought what happened here was 5 to 15 minutes.
Justice Elena Kagan: I mean, the record suggests that he put the dog on a very long leash, the dog goes back and forth, tries to figure out where the smell is coming from.
It's not just -- you know, my first thought was you go up to the door, the dog barks once, and that's it.
But you read the record, this dog is there for some extended period of time, going back and forth and back and forth, trying to figure out where the greatest concentration of the smell is.
It actually seemed, from my reading of the record, to be, you know, a lengthy and obtrusive process.
Gregory G. Garre: --Your Honor, I think what the record shows is, is that the dog was on the scene, i.e., at the curb, walking up, going back into the car, and then leaving, for a total of 5 to 10 minutes.
Walking up to the front steps, sniffing, alerting and leaving is a matter of seconds or minutes.
It's not -- the dog isn't up there for 5 to 10 minutes.
It happens very quickly.
I think in thinking about reasonable expectations of privacy, it is important to keep in mind physically what's happening in these houses.
These people are growing drugs in the houses with the aid of electricity and light and heat.
And they need -- they need air conditioning in order to control the heat.
And that air conditioning is blowing a very strong odor of drugs out into the public, and the people know that.
They know that.
We know they know that because they use mothballs, which Officer Pedraja found here at the front of the house, outside of the house.
And so what you're talking about, although we talk about what's going on in the home, really what's happening here is odor of illegal contraband is being blown out into the street and someone is coming up to it and using their God-given senses in a way that humans and dogs have used for centuries and detecting that.
Chief Justice John G. Roberts: Well, we've had a lot of -- we've had a lot of discussion about whether it's 5 minutes or 15 minutes or whether it's mothballs.
I understood the issue before us to be whether or not under the Fourth Amendment it is a search for a dog to come up to the door and sniff, not with respect to -- we're not making a judgment, I thought, on the probable cause in light of the totality of the circumstances, but the ground of decision below was this is a search when the dog sniffs.
Gregory G. Garre: That you need probable cause just for the dog to sniff.
No, that's absolutely right.
And the dog sniff itself clearly is not a physical invasion in the same way that looking is not a physical invasion under the common law.
And the dog, we think--
Justice Antonin Scalia: It isn't just the sniffing in the abstract.
It's the sniffing at this point, the sniffing at a person's front door, right?
Gregory G. Garre: --Well, that's true, Your Honor, but I think if it wasn't a search for the police officer to walk up there and sniff and report smelling live marijuana, then it wasn't a search when Franky walked up there and alerted to the presence of an illegal narcotic.
Justice Antonin Scalia: --Well, I didn't say it wouldn't be a search if the police officer himself did that if he went there with the intention of -- of smelling at the door.
He's going there to search, and he shouldn't be on the curtilage to search.
Gregory G. Garre: I think it's been conceded in this case, at least it was below, that the officer could walk up there, knock on the door, report the smell of marijuana, and that that was not a search.
Justice Elena Kagan: Mr. Garre, this is what we said in Kyllo.
And I'm just going to read it.
"We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use. "
So what part of that do you think separates your case from this one?
In other words, what part of that language does not apply in this case?
Gregory G. Garre: Well, first of all, Franky's nose is not technology.
It's -- he's using -- he's availing himself of God-given senses in the way that dogs have helped mankind for centuries.
Justice Elena Kagan: So does that mean that if we invented some kind of little machine called a, you know, smell-o-matic and the police officer had this smell-o-matic machine, and it alerted to the exact same things that a dog alerts to, it alerted to a set of drugs, meth and marijuana and whatever else, the police officer could not come to the front door and use that machine?
Gregory G. Garre: Your Honor, I think the contraband rationale would be the same.
It would be different in that you don't have technology in this case.
And I think that's an important distinction because, as we read Kyllo, the Court was very concerned about advances in technology, and that's just not true for a dog's nose.
Justice Elena Kagan: So your basic distinction is the difference between like a machine and Franky.
Gregory G. Garre: Well--
Justice Elena Kagan: That we should not understand Franky as kind of a sense-enhancing law enforcement technology, but we should think of him as just like a guy.
Gregory G. Garre: --Your Honor, I think that's true for two reasons.
One is Franky is using the same sense of smell that dogs have used for centuries.
So this isn't a case where if you allow a dog to sniff today, he might use x-ray vision in the future.
That's not going to happen.
And the other thing is that Franky -- that the use of dogs for their sense of smell, which everyone agrees is extraordinary, mankind has been using them for law enforcement type purposes for centuries.
Justice Ruth Bader Ginsburg: Not this purpose.
You said centuries, but I think you recognize that it wasn't until the seventies.
I mean, the dogs were used to find culprits, but to use it in this way I think it was only since the seventies.
Gregory G. Garre: Well, to use it for drug detection purposes, that's right.
But they've -- we've been using dogs to track thieves for centuries going back before the founding.
Scotland Yard -- Scotland Yard used dogs to track Jack the Ripper.
That's the same type of way in which they are being used here.
The fact is today they're looking for drugs in this context, but--
Justice Sonia Sotomayor: Mr. Garre, there's no dispute that dogs can smell what human beings can't; is that correct?
It's not that we can find a machine to put it on a human being to enhance their sense of smells; dogs can do something human beings can't.
Gregory G. Garre: --They have a much better sense of smell, that's right.
But I think if you look at--
Justice Sonia Sotomayor: So you have to treat him like a guy, to think that he is not like technology in terms of augmenting what a human being can do.
Gregory G. Garre: --Well--
Justice Sonia Sotomayor: He's not augmenting what a human being can do.
He's substituting what a human being can do.
Gregory G. Garre: --He's -- the dogs, no doubt, have an enhanced sense of smell compared to the officer.
But I think that's really not functionally different than using an airplane to look into the house, like in Florida v. Reilly.
And in that sense, I think this case is a lot like that.
In Florida v. Reilly, the officers used a helicopter to fly over the drug house, and they saw exposed marijuana.
Here, you're using the drug detection dog to smell the odor of marijuana that is being pumped out of the house into the street.
And the people who use the house know that.
They know that, and we know they know that because the mothballs were present.
Mothballs are a masking agent.
People don't have a legitimate expectation of privacy, this Court has held, in things that they knowingly expose to the public, even in the home.
That's what the Court said in Florida v. Reilly.
It's what it said in Katz itself.
And I think, here, one way to resolve it is to say people who live in grow houses with a distinct odor of marijuana, who know that that is being pumped out into the street because of the air conditioning that they need to run the grow houses, there is no invasion in their -- in their expectation of privacy when either a man or a dog, when lawfully present on the property, uses their God-given senses to detect that.
If I could reserve--
Chief Justice John G. Roberts: Thank you, counsel.
Gregory G. Garre: --Thank you.
Chief Justice John G. Roberts: Ms. Saharsky.
ORAL ARGUMENT OF NICOLE A. SAHARSKY, FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONER
Nicole A. Saharsky: Mr. Chief Justice and may it please the Court:
I'd like to go right to two points that respond to the Court's questions.
The first is the question of whether the officer and the dog were lawfully in place, whether they could approach the front door, was conceded below.
And, as the court -- as the case comes to this Court, that is not an issue before the Court.
And I want to make sure that the Court has--
Justice Ruth Bader Ginsburg: I didn't -- I didn't understand the concession to be that the police had come to the door with the dog, the sole purpose of the dog being to detect contraband.
Nicole A. Saharsky: --Well, let me give the Court specific citations on that.
The court of appeals, the Florida Court of Appeals, found that the dog and the officer were lawfully in place.
That's JA pages 104, 105, 112, 116 and 120.
Before the Florida Supreme Court at oral argument, Respondent conceded that there was no reasonable expectation of privacy in the porch, and the Florida Supreme Court accepted that concession.
That's Petition Appendix page 31, also noted by the dissent in pages 78 to 79.
In the brief in opposition to cert, Respondent said that the police could approach the front door for a knock and talk, and made no separate argument about the dog's presence there making it not lawful.
So as this case comes to the Court, it is with the dog and the officer lawfully in place at the front door, approaching the front door just like any Girl Scout, trick-or-treater, or anyone else could.
And just to respond, Justice Ginsburg, to the questions that you raised, the police officer's purpose in approaching the front door does not mean that the officer can't come to the door.
The Court has said in many contexts that officer purpose doesn't matter, and it doesn't matter if the officer is looking for a lost child or thinking that that--
Justice Ruth Bader Ginsburg: You're agreeing with Mr. Garre that the police could take a dog and go down every house on the street, every apartment in the building?
Nicole A. Saharsky: --Well, assuming that the police can lawfully be in the place that they are going with the dog, which is conceded here--
Justice Ruth Bader Ginsburg: A house just like this house.
Nicole A. Saharsky: --If they are approaching the front door using the normal path, because the dog only detects contraband, yes, they could be used in those circumstances, but that's not happening.
There have been justices who've warned about that--
Justice Ruth Bader Ginsburg: Well, so any home, any home anywhere, and we should say that that's okay, and we can say it's okay because the government won't use it?
Nicole A. Saharsky: --There are justices that have warned about this for over 30 years, and these problems have not come to fruition.
There are restraints on police resources.
There's the potential for community hostility.
If you look at the cases that have arose in the courts of appeal--
Justice Ruth Bader Ginsburg: This Court has dealt with an item that was seized before, a piece of luggage, a car.
They have not dealt with the dog sniff in the context of a home that's not seized.
Nicole A. Saharsky: --But in Caballes, where admittedly the Court did not decide this specific issue, it distinguished the case of Kyllo as saying that that was finding out about lawful activity in the home, and that a person -- the critical distinction between Kyllo and the dog sniff in Caballes is that a person does not have a reasonable expectation of privacy in contraband.
Justice Anthony Kennedy: I just -- again, as I told Mr. Garre, I just can't accept that as the premise for the case.
The argument we're having about whether there is a reasonable expectation in society generally, whether or not the police because of limited resources are not going to have -- that's all fine.
But this idea that, oh, well, if there is contraband, then all the -- all the rules go out the window, that's just circular, and it won't work for me, anyway.
Nicole A. Saharsky: Well, I wanted to be sure to respond to that, Justice Kennedy, because I would hate for the Court to have the impression that all the rules go out the window.
That's not the case.
What we're talking about here is a sniff that would allow the police to go to a detached and neutral magistrate to say that, we have probable cause--
Justice Anthony Kennedy: That's fine--
Nicole A. Saharsky: --to get a warrant.
Justice Anthony Kennedy: --but don't ask me to write an opinion and say, oh, we're dealing with contraband here, so we don't need to worry about expectation of privacy.
There is simply no support for that because Caballes cited Jacobsen, and Jacobsen was where the contraband fell out of the package and it was in plain view.
So that just doesn't work, at least for me, in this case.
Nicole A. Saharsky: Well, the reasoning in contraband -- in Jacobsen, though, the Court said that the rationale, the reason for its decision in Place, is because when you're talking about people's reasonable expectations of privacy, they have both a subjective and an objective component.
So it's not just that you want to keep something private; it's that you need to have a legitimate expectation that you can keep that private.
And the Court has said over and over, in Place, in Caballes, in Jacobsen, that you do not have a legitimate expectation with respect to contraband.
That doesn't mean that the--
Justice Anthony Kennedy: Again, I don't think the cases go that far because those were cases in which the contraband -- Jacobsen -- was in plain view.
Everybody knows that it falls out of the package.
At that point, you don't have any--
What you're saying is, oh, well, if there is contraband in the house, then you have no legitimate expectation of privacy.
That, for me, does not work.
Nicole A. Saharsky: --What we're trying to say, Justice Kennedy, is not that you lack any privacy expectation in the home.
That's why you need to get a warrant before going into the home.
All the dog sniff allows is for the police to try to go to a magistrate and establish probable cause to get a warrant.
Justice Anthony Kennedy: That's fine.
We can talk about reasonable suspicion.
That's all okay.
Justice Elena Kagan: How does what you're saying, Ms. Saharsky, square with Karo?
Because in Karo, the only thing that the beeper alerted to in the home was the can of ether, which was clearly an item that was being used for drug manufacture.
And there was nothing else other than that item, which you might not call it contraband, but it was evidence of illegality, this can of ether.
There was no thought that it was used for anything else.
And that was the only thing that the beeper alerted it to; and, yet, nonetheless, we said, you know, of course that's a search.
Nicole A. Saharsky: I think that my answer touches on the point that you made, which is it was not contraband.
The police thought that it might be evidence of a crime, but the Court did not say it was contraband.
And, actually, there was a discussion at the oral argument, where defense counsel made very clear that ether has many lawful uses.
That makes it different from what the Court considered in Place.
This came after the Court's decision in Place.
Justice Elena Kagan: Well, not lawful uses in somebody's house.
I mean, maybe lawful uses in a factory or in an operating room, but nobody has cans of ether in their house unless they're making drugs.
Nicole A. Saharsky: Well, with respect, Your Honor, the defense counsel I think correctly suggested in the Karo oral argument that, in fact, there are lawful uses in photography labs in houses and the like.
He actually had an expert that came to the suppression hearing in that case and testified about the various lawful uses of ether in a house.
So I think, as the argument came to the Court, the government was not making an argument that that was contraband or evidence of a crime.
The government was just saying, oh, it's very limited information, because we had already -- we had already tracked the ether to the house, so you weren't finding out much.
And the Court said basically what it said in Kyllo, which is, it might not be much, but it's still about lawful information, activity in the house, and that's protected.
But in Caballes, the Court came back and said, sure, we've said Kyllo, lawful activity in the house, but your interests in protecting contraband are different; those are not legitimate interests.
And the Court has said that again and again and again.
Justice Elena Kagan: But in Kyllo -- and I think this was what Justice Kennedy was saying.
In Kyllo, there was already a seizure that had happened, and the Court just said, this is no -- this is really no greater an intrusion.
Nicole A. Saharsky: Well, with respect, when we look at the -- when we look at the language in these cases, in Caballes and the like, you know, the Court wasn't saying, oh, it's not a search because this has already -- this had already been seized and nothing more was happening.
The Court said it was not a search because there is no legitimate expectation of privacy.
And just to be clear, the question about whether folks have a reasonable expectation of privacy with respect to contraband in their house has to take into account two facts: First, that we're only talking about contraband; but, also, that dogs have been used and known for centuries for their sense of smell.
Justice Stephen G. Breyer: Yes, but I -- what I'm curious about, and it's an unanswered question for me, is we are considering whether the dog sniff is permissible, so I wanted to know what a dog sniff at the front door involved.
And at page 96, 97, 98 of the joint appendix, with which you are familiar, it explains that.
It isn't just going up and [indicating;] that's it.
It's a process called bracketing.
They describe it at length.
The officer, the dog officer, said he was in a rush that day and it didn't take more than 5 to 10 minutes.
And my question really is whether an ordinary homeowner expects people to walk down the curtilage and, with a big animal, and the animal -- they don't knock.
They behave in the page 96, 97, 98 way.
I subjectively think, well, that's pretty unusual behavior, whether it's a policeman or anybody else.
So what do you respond?
Nicole A. Saharsky: This sniff occurred very quickly, and it--
Justice Stephen G. Breyer: It was 5 to 10 minutes and it's 96-97.
Nicole A. Saharsky: --Right.
I think the 5 to 10 minutes, like counsel said, was the whole process of -- of bringing the dog up to the door, et cetera.
The sniff happened very quickly.
But putting that to the side, what the dog is doing is sniffing things that have been exposed to the public from inside the house, smells that the officer himself could smell, could smell in -- in plain smell.
And the Court has said in other cases, like in Place, that what the dog is doing is very limited in scope; it happens very quickly; there is no physical invasion; it's something that actually this Court has said in Florida v. Royer is something that we want officers to do, because it--
Chief Justice John G. Roberts: Could I follow up on Justice Breyer's question, because it strikes me as a little confusing.
Does the dog, as soon as he or she is at the door, sniff and sit or sniff and not sit, or does the dog -- I mean, you've talked about the sniff is immediate.
What -- what is the 5 to 10 minutes?
Nicole A. Saharsky: --The 5 to 10 minutes as I read the record was the whole process.
The -- the dog sniff I think took seconds or maybe a minute or 2 minutes--
Chief Justice John G. Roberts: And the whole process is -- is what?
Nicole A. Saharsky: --That they were -- that they met at the front gate, that they were walking up to the -- to the door, that the dog did the sniff, that the -- that he talked to the other officer, and then he went back to his car, which was parked I think some -- some length of time away.
Chief Justice John G. Roberts: It doesn't take the 5 to 10 minutes to walk to the door.
So the officer walks to the door, the dog sniffs right away and then?
Nicole A. Saharsky: --Well, the dog sniffs.
He has to find the strongest source of the odor.
So he starts sniffing right away.
He sniffs around for a few seconds; he finds the strongest source of the odor and he sits down at that place.
Chief Justice John G. Roberts: Where -- where in the -- where in the record do I find the few seconds point?
Nicole A. Saharsky: Well, I think the -- probably the cites that -- that Justice Breyer gave are the cites that describe it.
So I'm not sure that there is something more specific than that.
Chief Justice John G. Roberts: Thank you, counsel.
Nicole A. Saharsky: Thank you.
Chief Justice John G. Roberts: Mr. Blumberg.
ORAL ARGUMENT OF HOWARD K. BLUMBERG ON BEHALF OF THE RESPONDENT
Howard K. Blumberg: Mr. Chief Justice, and may it please the Court:
Police officers taking a narcotics detection dog up to the front door of a house is a Fourth Amendment search for two distinct and separate reasons.
First, when police reveal any details inside a home which an individual seeks to keep private, that is a Fourth Amendment search and that is exactly what a narcotics detection dog is doing, revealing details in the home the individual seeks to keep private.
Justice Anthony Kennedy: That's your first reason and I don't want you to be deterred from giving us the second, but if we can concentrate on that for a minute.
That seems to me a proposition that's equally unacceptable to what the Government is saying, that you have no interest in contraband.
The police often, when they have ordinary conversation with people, want to find out the details of what that person is doing, where the person lives, what goes on in the house.
"Hello, have you had a nice time at the -- at the park today? "
"I see you're coming home with your children; is this where you live? "
This is all routine conversation that we always have in order to try to find out what people are doing, what they are like, where they live.
So I -- I think the statement, and you -- you repeated it quite accurately from what you have at page 16 of your brief -- just goes too far.
"establish that police action which reveals any detail an individual seeks to keep private is a search. "
--that is just a sweeping proposition that in my view, at least, cannot be accepted in this case.
I think it's just too sweeping and wrong.
Howard K. Blumberg: Justice Kennedy, I would add a few words to the end of that statement: Anything that an individual seeks to keep private in the home, and that's the difference.
Your hypothet about conversation, certainly a police officer can talk to someone and ask them questions about--
Justice Anthony Kennedy: Well, the police officer talked with somebody at the police station, or walking down the street about what their occupation is, do they work at home.
They're -- they are trying to get information.
That's perfectly legitimate.
Howard K. Blumberg: --Certainly, but in that hypothet--
Justice Anthony Kennedy: Well, then your broad statement simply does not work.
Justice Antonin Scalia: Suppose you -- you have someone who, who has been guilty of a crime.
He has -- he has the body.
He has committed a murder and he has the body in the home.
He certainly wants to keep that private, right?
And he foolishly and mistakenly leaves the blinds open in the room where -- where the corpse is lying, and the policeman at a great distance has a telescope and he looks through the blinds and he sees the corpse.
Can the police go into the home?
Howard K. Blumberg: --In that situation, the person inside the home has knowingly exposed what is inside the home to the public.
Justice Antonin Scalia: Oh -- he hasn't knowingly.
He was careless.
Howard K. Blumberg: Well, but I -- I understood under your hypothetic that he knowingly left the blinds open.
Justice Antonin Scalia: He certainly wanted to keep it -- he wanted to keep it private.
Howard K. Blumberg: Well, certainly; and the defendant in Reilly wanted to keep the marijuana private.
Justice Antonin Scalia: Well, you could say the same thing here.
They wanted to keep private the fact that they were growing the marijuana, but they -- they used a means of suppressing the heat that made it impossible to keep it private.
Howard K. Blumberg: Well, that--
Justice Antonin Scalia: They were careless.
Howard K. Blumberg: --I -- I don't believe there is anything in the record to indicate that the air conditioner was blowing the smell of marijuana out from the house in a very strong manner.
As a matter of fact--
Justice Antonin Scalia: There were the mothballs.
Howard K. Blumberg: --There were mothballs there, and Detective Bartelt, the dog handler that was standing at the front door as well, testified without contradiction or without hesitation he didn't smell anything.
So if -- if Mr. Garre's representation about an air conditioner basically blowing the smell of marijuana outside the house so that anybody would smell it--
Chief Justice John G. Roberts: What were the mothballs there for?
Howard K. Blumberg: --The mothballs presumably were there to -- to mask the smell of an odor coming from the house.
Chief Justice John G. Roberts: Okay, then--
Howard K. Blumberg: It's manifesting an expectation of privacy.
Chief Justice John G. Roberts: --Well, that's my question.
Are we talking about the expectation of privacy in the marijuana or the expectation of privacy in the odor?
Howard K. Blumberg: The expectation of privacy on the -- in the details, what's going on inside your house.
Chief Justice John G. Roberts: Well -- well, no, that can't be right, because if you're letting smoke out that -- that -- I don't know, from the burning of a body or something, you don't say, well, because he's trying to conceal that you can't rely on the smoke.
Howard K. Blumberg: But that's knowingly exposing what's inside the house.
Chief Justice John G. Roberts: So I guess the question here is, if you appreciate the fact that the odor is coming out to the extent that you're going to put mothballs all around the house, it seems to me that you -- you may have an expectation of privacy in the marijuana plants, but you don't have an expectation of privacy in the odor, because you're emitting it out, out into the world, and it's the odor that was detected.
Howard K. Blumberg: But assuming that's what the mothballs were there for, that's to keep the odor inside the house, so that the public cannot find -- cannot detect that odor, unless you go up there--
Chief Justice John G. Roberts: That's like saying you put the -- the drugs in a -- in a bag to protect them from observation on the outside, but you use, you know, a clear bag rather than a, you know, opaque one or something.
You didn't -- you weren't very successful.
And -- when you began you said assuming that's what the mothballs were there for.
That is what they were there for, isn't it?
There is no other reason--
Howard K. Blumberg: --There's -- there is really no evidence in the record as to -- the only people who testified at the hearing on the motion to suppress were the two police officers.
Justice Samuel Alito: Well, I think your first reason is -- is so broad, it is clearly incorrect.
It's so broad, you ought to go on to your second reason.
Justice Anthony Kennedy: Yes, I was going to ask for your second, your second point.
Howard K. Blumberg: Well, the -- when a police officer takes a narcotic detection dog up to the front door of the house, that is also a Fourth Amendment search because that is a physical trespass upon the constitutionally protected area of the curtilage of the home.
Justice Samuel Alito: You know, we've had hundreds of years of trespass cases in this country and in England.
Has there -- do you have a single case holding that it is a trespass for a person with a dog to walk up to the front door of a house?
Howard K. Blumberg: Well, there are cases that go back to the -- I'm sorry, I don't have the, the citations -- but there are cases in the 1700s that established that basically a dog running on to someone else's property is a trespass.
Justice Samuel Alito: That really wasn't my question, was it?
Howard K. Blumberg: I thought your question was if a dog comes on to private property--
Justice Samuel Alito: If a dog on a leash is brought up to the front door of a person's house, was that a trespass at the time when the Fourth Amendment was adopted?
Howard K. Blumberg: --If it was without the consent of the homeowner, yes, it was a trespass.
Justice Samuel Alito: What is the case that says that?
Howard K. Blumberg: I do not have a case.
Justice Samuel Alito: You don't have the case.
Justice Stephen G. Breyer: You're assuming the conclusion in these things.
I mean, I thought since Katz the rule has been whether the homeowner has a reasonable expectation of privacy in -- which is infringed or violated or interfered with when the Government acts.
So that's a question of does he have that reasonable expectation.
So now we're back to exactly where we were.
Your opponents say, no, there is no reasonable expectation of privacy--
Howard K. Blumberg: Well--
Justice Stephen G. Breyer: --to protect a person with a dog coming up to the door and going [indicating,] all right?
Now, your response to that is what?
Howard K. Blumberg: --My response to that is that does violate the resident's reasonable expectation of privacy.
Justice Stephen G. Breyer: And then the question was, as Justice Alito put it, why?
He says, we go back to the 17th century, as far as you want, and there is no law that says there is any kind of expectation in a homeowner that a person won't walk up to the dog -- to the door with a dog on a leash and sniff, which, as he says -- which your opponents say is what happened here.
And your response to that is?
Howard K. Blumberg: My response to that is that any entry onto private property in the 1700's was a trespass, was the tort of trespass, unless it was with consent.
Justice Ruth Bader Ginsburg: What about, Mr. Blumberg, the government cited many, many pages in the record, I just took the first one, petition -- appendix to the petition, 104 and 105.
The court said, the officer and the dog were lawfully present at the defendant's front door, and we were told that that was conceded by you a number of times.
Howard K. Blumberg: Absolutely not, Justice Ginsburg.
What I -- what I said in the Florida Supreme Court, I was given a hypothet about an officer coming up by himself without the dog to knock on the front door and talk to the homeowner.
And I said that I conceded that would not be a violation of a reasonable expectation of privacy, and this Court has stated as much in Kentucky v. King.
And then the Court said to me, what's the difference?
And I said the dog.
And that's exactly what I'm saying here.
Justice Elena Kagan: Okay.
So that's clearly -- you do concede if the police officer walks up to the door, smells it himself, no problem there; is that right?
Howard K. Blumberg: If the police officer is perform -- is knocking on the door, part of a knock and talk, yes; but, if the police--
Justice Elena Kagan: But smells it himself, so there's no problem there.
So the difference is the dog.
So what difference does the dog make?
Suppose the dog were not doing this ten-minute bracketing that Justice Breyer was talking about.
Suppose this really were a very simple procedure.
The dog comes up, takes a sniff, barks, sits down.
And, you know, to make it even more, the dog is not a scary-looking dog, the dog is a Cockapoo.
So just like, you know, your neighbor with his Cockapoo walks up to your door all the time, that's what this police officer has done.
Why do you win that?
Howard K. Blumberg: --Well, whether it's a Cockapoo or Franky, who, from all the pictures, appears to be a very cute dog, it's not what the dog looks like, it's what the dog is doing on the front porch, which is--
Justice Elena Kagan: The dog does what your neighbor's dog does.
Howard K. Blumberg: --Well, no, this dog -- the neighbor's dog does not search for evidence on your front porch.
That's the key distinction.
Justice Antonin Scalia: But, Mr. Blumberg, I think you're, with respect, misguided to concede that if it was just the officer alone without the dog, it would be perfectly okay.
Howard K. Blumberg: I did not mean to concede that, and I was going to say that.
Justice Antonin Scalia: Well, I thought you did.
Howard K. Blumberg: I was about to return your--
Justice Antonin Scalia: And I would assume you would say that if the officer walks up there with no intention to knock and talk, but just walks up to the door with the intention of sniffing at the door, you would consider that to be a violation, wouldn't you?
Howard K. Blumberg: --And that was the point I was going to make in response to Justice Kagan's question.
Chief Justice John G. Roberts: --Well, our Fourth Amendment cases are very clear that they don't turn on the subjective intent of the particular officer.
Howard K. Blumberg: And I am not arguing that.
I am arguing--
Chief Justice John G. Roberts: I thought you just said it depends on whether or not he's going up to the door to sniff or going up for something else.
Howard K. Blumberg: --It depends what the officer does at the front door, not what his state of mind is.
If the officer goes up to the front door and starts sniffing around the cracks and crevices--
Chief Justice John G. Roberts: Yeah, sure, if he's down on his knees; but, what if he goes up to the front door and sniffs?
I mean, he's--
Howard K. Blumberg: --That's--
Chief Justice John G. Roberts: --he's got to breathe.
I mean, how do you tell whether it's different?
I don't understand.
He's going up to drop off, you know, tickets to the Policeman's Ball, and he smells marijuana.
What is that?
Is that a violation or not?
Howard K. Blumberg: --It is not because he is not performing any type of search.
Chief Justice John G. Roberts: So it depends on -- but if he's going up to sniff, it is a violation?
Howard K. Blumberg: Not going up to sniff.
If he goes up there and does sniff--
Justice Samuel Alito: What if he goes to--
Howard K. Blumberg: --and starts searching around, looking in the windows--
Justice Samuel Alito: --he goes to deliver the tickets, and he sniffs?
He doesn't intend to sniff before he goes, but he goes the deliver the tickets, and he smells the marijuana.
Is that a search?
Howard K. Blumberg: --No, because he's not performing any kind of search.
And this Court has repeatedly held that an officer--
Justice Samuel Alito: Well, he doing exactly the same thing.
Two officers go up to two identical houses.
One goes up with the subjective intent to sniff.
The other one goes up with the subjective intent to drop off the tickets to the Policeman's Ball.
Your answer is one is a search, one is not a search.
Howard K. Blumberg: --No, and I am not in any way, shape or form tying it to the subjective intent of the officer.
Justice Antonin Scalia: All right.
Again, I think you're wrong not to accept that.
I think our cases support it.
I think you cannot enter the protected portion of a home, which is called the curtilage, with the intention of conducting a search, that that is not permitted.
I think our cases establish that.
Howard K. Blumberg: I believe the language--
Justice Antonin Scalia: And it's fine to say -- I don't think it's true that the intent of the officer is never relevant.
It is relevant in that context.
The reason for the officer going onto protected property, if he's going on just to knock on the door to sell tickets to the Policeman's Ball, that's fine.
If he's going on to conduct a search, that's something else.
Howard K. Blumberg: --The language in this Court's opinion in Jones is for the purpose of conducting a search.
Chief Justice John G. Roberts: Can odors be in the equivalent of plain sight, plain smell?
In other words, the officer goes up to drop off the Policeman's Ball tickets, the door is open, he sees the dead body.
The officer goes up to sell the Policeman's Ball tickets, and he sees -- he smells the marijuana.
Okay in both cases, right?
Howard K. Blumberg: Yes, Mr. Chief Justice.
Chief Justice John G. Roberts: So this depends upon how strong the odor is.
Howard K. Blumberg: This Court's decisions establish that a police officer does not have to close his eyes when he goes up to the front door of a house to do a knock and talk.
He does not have to hold his nose to prevent.
Anything that he naturally observes using his ordinary senses when he is there for a lawful purpose such as a knock and talk is fine.
Chief Justice John G. Roberts: If the -- let's say it's a townhouse that goes right up to the sidewalk.
If the police go by with their dog intending to sniff, and the dog alerts, on the sidewalk but two feet away is the front door, that's okay, right?
Howard K. Blumberg: Well, that would not be a trespass.
That would not be a search because a trespass--
Chief Justice John G. Roberts: So it's okay?
Howard K. Blumberg: --No, it's not okay, respectfully, because the dog would still be revealing details inside the home that the officer could not reveal using his or her ordinary senses.
That's our first argument in this case.
Chief Justice John G. Roberts: Well, let me make sure I understand you.
The policeman is walking down the sidewalk with his dog, the dog stops and alerts.
That doesn't constitute sufficient probable cause to get a search warrant to go into the townhouse.
There's been no entry onto the property, just a policeman walking with his dog.
Howard K. Blumberg: Well, but I assume on your hypothet it's a policeman walking with his narcotics detection dog up and down the street.
Chief Justice John G. Roberts: Sure.
Howard K. Blumberg: A dog that he knows is trained--
Chief Justice John G. Roberts: He's walking the dog.
He's not out searching.
He's walking the K-9 dog, and the dog alerts on a house without any trespass.
You think that's still bad?
Howard K. Blumberg: --Yes.
And I would submit that would basically be the same thing as a police officer walking up and down the street with a thermal imager that's turned on.
Justice Antonin Scalia: But you do say that this is an easier case.
Howard K. Blumberg: This is an easier case, of course, because the police officer in this case -- and not only the facts of this case, but the question presented is going up to the front door of a home.
Justice Samuel Alito: I thought the relevance of technology was that the technology that we have now was not necessarily -- was not -- much of it was not available at the time when the Fourth Amendment was adopted, so we can't tell what the -- what people in 1791 would have thought about it.
But that's not true of dogs.
Dogs were around.
They have been around for 10,000 years.
Howard K. Blumberg: Dogs were around, Justice Alito--
Justice Samuel Alito: --and they've been used -- and they've been used to detect scents for 10,000 -- for thousands of years.
Certainly, they were available for that purpose in 1791, weren't they?
Howard K. Blumberg: --But in 1791, dogs had not been trained to detect criminal activity within a house -- not -- I'm sorry--
Justice Samuel Alito: But they had been trained to track people, had they not?
Howard K. Blumberg: --Yes.
Dogs have been tracking people--
Justice Samuel Alito: So in 1791, if someone -- if the police were using -- or somebody was using a bloodhound to track someone who was suspected of a crime, and the bloodhound -- and they used the bloodhound to track the person to the front of -- to the front door of a house, would that have been regarded as a trespass?
Howard K. Blumberg: --Yes, I believe it still would have.
Justice Samuel Alito: And what's the case that says that?
Howard K. Blumberg: Well, the -- I do not have a case that says that taking a bloodhound up to the front door of a house would be a trespass.
But if you analyze it under the definition of what a trespass is, it's an unlawful entry onto private property without consent of the homeowner.
And there is no--
Justice Samuel Alito: Without implied consent.
Howard K. Blumberg: --Right.
Justice Samuel Alito: Actual or implied consent.
Howard K. Blumberg: I don't believe a homeowner, back in the 1700's, impliedly consented to police coming up to the front door of his house with a bloodhound, even though everybody knew they could do that.
Justice Samuel Alito: Well, are there cases that say that the implied consent exists only where the person is coming to the door for a purpose that the homeowner would approve if the homeowner knew the purpose of the person coming to the door?
Howard K. Blumberg: The specific doctrine is implied consent by custom.
And so you look to what is it customary for people to accept in terms of people coming onto their property.
Justice Anthony Kennedy: How is that different from what Justice Breyer I think correctly indicated, our inquiry as to whether there is a reasonable expectation of privacy?
In a way, that's circular because if we say there is, then there is, if we say there isn't, then there isn't.
But if we're looking at community values in general, isn't it a reasonable expectation of privacy?
Howard K. Blumberg: It's very similar.
The two doctrines are very similar.
Whether you're saying it's a violation of a reasonable expectation of privacy--
Justice Anthony Kennedy: Let me ask this.
I think I know what your answer would be.
Suppose the policemen have little microphones on so they can talk into their radio, the microphone on their lapel.
Suppose the policeman goes to the homeowner and he has the microphone in his lapel on so his partner can hear the conversation, and they can -- the two of them talk about it later.
They're talking to the homeowner.
Is that an unlawful search?
Howard K. Blumberg: --If the homeowner chooses to engage in conversation with that officer and his conversation is overheard on the microphone--
Justice Anthony Kennedy: It doesn't occur to him that that mike is on.
Howard K. Blumberg: --But, again, when you talk to the police officer, that's a reasonable possibility.
You don't have -- it's not a reasonable expectation of privacy, that if you talk to a police officer, that that might be going out to another police officer that's in the car down the street.
But there's no -- a homeowner does not--
Justice Anthony Kennedy: But -- but maybe it is a reasonable expectation, maybe it isn't.
I frankly think that might be harder than the dog case or that you can make a stronger case for a reasonable expectation of privacy.
If the -- if the homeowner is making a lot of marijuana with -- with odors coming out, he knows that a dog or a person might smell it.
Howard K. Blumberg: --But, again, this particular case is not -- the question presented does not hinge on whether or not a normal officer could smell it, because this officer, Detective -- I'm sorry -- Detective Bartelt said he did not smell it.
Justice Anthony Kennedy: It does hinge on what is a reasonable expectation of privacy.
Howard K. Blumberg: It does.
Justice Anthony Kennedy: And that's what we're trying to find out.
Howard K. Blumberg: It does.
Justice Stephen G. Breyer: I'll look at this later, but I'm rather surprised.
My understanding of the case law was the Chief Justice's, and I thought what you're supposed to look at is the behavior of the individual, the police officer, who comes to the door or looks into the house, not his subjective motive.
Now, as we just heard, you said, and with support here, that Jones changed that, but I don't know what in Jones changed that.
Jones is the case where the police did in fact go to a person's car and physically put something in it.
That's -- something that tracked.
Howard K. Blumberg: Correct.
But the definition--
Justice Stephen G. Breyer: So what is it in Jones that said what we're supposed to look at is not behavior, but the subjective intent of the officer?
Howard K. Blumberg: --It's the language in Jones that says one of the elements in determining whether or not a physical trespass constitutes a search under the Fourth Amendment is, is there a physical trespass, onto a constitutionally protected area, for the purpose of conducting a search.
Those are the three elements of the--
Chief Justice John G. Roberts: What is the constitutionally protected area in this case?
Howard K. Blumberg: --In this case, the curtilage of the home.
Chief Justice John G. Roberts: Even though it's the sidewalk where people -- there's an implied license for people to walk up to--
Howard K. Blumberg: Well, that was your--
Justice Stephen G. Breyer: I mean, it may be a search.
Howard K. Blumberg: --It's not a sidewalk here.
It's the front door.
Justice Antonin Scalia: It's not the sidewalk here, is it?
Howard K. Blumberg: No, no, it's the front door of the home here.
Chief Justice John G. Roberts: --No, it's the front part.
But there is an implied license to walk up to the front door, right?
Howard K. Blumberg: Only -- only to do certain things.
Justice Antonin Scalia: There's -- there's an implied license to -- to go on to the curtilage for most people.
Howard K. Blumberg: Yes.
Justice Antonin Scalia: The curtilage is -- is not sacrosanct to do certain things.
Howard K. Blumberg: Such as to try to and sell Girl Scout cookies, to knock -- even a police officer can go on to the curtilage, to knock on to the door -- I'm sorry -- to knock on the front door, to try and engage the person inside the home in a conversation.
Justice Sonia Sotomayor: Could we go back to the concession that was asked of you, what you conceded in the Florida court or didn't?
Have you conceded that the police officer sans dog, if he had come up to the door and knocked, that that would have been permissible, that that was not a search or seizure?
Howard K. Blumberg: If what the police officer was doing at the front door was a knock and talk.
That was the law--
Justice Sonia Sotomayor: Did he have -- did he have a right under the facts of this case?
He had been told that in this house they were growing marijuana by a confidential informant.
Assume that's all that he had.
Would he have had a right to walk up to the door, knock on it, and start asking questions?
Howard K. Blumberg: --Without the dog.
Justice Sonia Sotomayor: Let's -- sans dog, yes.
Howard K. Blumberg: Yes, yes.
That's Kentucky v. King, I believe.
Justice Sonia Sotomayor: All right.
So you are conceding that he had license to walk onto -- or walk to the door and ask questions.
Howard K. Blumberg: A police -- there's implied consent for a police officer to go up to the front door, knock on the door and attempt to engage the person in the house in conversation if they open the door.
Justice Samuel Alito: So why is that?
Why is that?
If you took a poll of people and said do you want -- do you want police officers who suspect you of possibly engaging in criminal conduct to come to your front door and knock on the door so they can talk to you and attempt to get incriminating information out of you, would most people say, yeah, I consent to that?
Howard K. Blumberg: In terms of consent?
Again, it's implied consent by custom.
And I think at this point it's customary for people to expect that police officers may come to your front door and knock on your front door to try and talk to you.
You don't have to talk to them.
Justice Sonia Sotomayor: I guess the bottom line is that are you taking -- it sounds to me like you're saying there's no implied consent to bring a dog on to my property.
Howard K. Blumberg: Absolutely.
And certainly not a narcotics detection dog.
Justice Sonia Sotomayor: You're -- Mr. Garre said differently, that there is an implied consent for your neighbor to bring the dog up for anyone else but a police officer.
Is that what you're saying?
There's an implied consent for anyone else or there is no implied consent, period?
Howard K. Blumberg: I think a strong argument can be made that there is no implied consent for anyone to bring a dog up to the front door of your house, because, as you pointed out, a lot of people don't like -- don't like dogs and -- and some people are allergic to dogs.
Justice Ruth Bader Ginsburg: I thought you were talking about a dog trained to detect contraband--
Justice Antonin Scalia: Yes.
Justice Ruth Bader Ginsburg: --not just any old dog.
Howard K. Blumberg: We are, but I believe the hypothet was just any dog.
But certainly, when it's -- when it's a dog trained to detect contraband, there's no question that no one impliedly consents to that happening and there's no question, as Justice Breyer pointed out, that a homeowner has a reasonable expectation of privacy that that's not going to happen.
Justice Samuel Alito: You draw a distinction between dogs that are not drug detection dogs and ordinary dogs.
Would you draw the same distinction between a police officer who is not expert at detecting the smell of methamphetamine and a police officer who is expert at detecting the smell of that drug?
Howard K. Blumberg: In terms of the right of that officer to come up to the house and knock on the front door?
Justice Samuel Alito: To knock on the front door, yes.
Howard K. Blumberg: No, there -- there wouldn't be any distinction to that.
You impliedly consent and you have no reasonable expectation of privacy that any type of police officer is going to come and knock on your front door and try and talk to you.
Justice Stephen G. Breyer: Not a police officer.
If we start -- policemen have to know how to behave.
And in this area, they can behave the same way as other people can behave, and we expect them to behave, even though their motive differs.
They're always trying to find crime.
That's what I thought the law was.
I've been trying to figure out just what you say, but in a slightly different form.
Do people come up to the door with dogs?
Do the dogs breathe?
Do in fact policemen, like other people, come up and breathe?
Do we expect it?
Yes, we expect people to come up and breathe.
But do we expect them to do what happened here?
And at that point, I get into the question: What happened here?
And I'd be interested in your view on that.
Howard K. Blumberg: And -- and just to clear up the factual, I don't believe that -- that what happened here in terms of the use of the drug detection dog took 5 to 15 minutes.
It didn't take 5 to 15 minutes.
It certainly took, I would say, at least 1 or 2 minutes, because what happened -- and again, this is on 96, 97 and 98 -- the officer goes from the street over the curb, up to the front door of the house, with the dog basically dragging him up to the front door of the house.
They go up this walkway -- and a picture of the home is -- is in the appendix to the brief -- and then the dog crosses the -- into the alcove, the area right in front of the house.
And once he gets in that area, the dog starts violently bracketing back and forth, pulling on the leash.
The dog handler testified that the other officer had to stay back, because it was so violent that people could get knocked down by what's happening.
And for a period of time the dog goes back and forth, back and forth, and then at some point goes to the crack on the bottom of the front door, sniffs that, and then the process finally stops, he sits down.
So that's factually what happened.
Justice Ruth Bader Ginsburg: Mr. Blumberg, the Florida appellate court, yes, the court of appeals, did say that that the officer and the dog were lawfully present.
But you say you didn't make that concession.
Howard K. Blumberg: Well, that's -- I did not make that concession and -- no, I certainly did not concede that, but the court found that.
And that's the point I wanted to make.
The courts, both courts in Florida, squarely addressed that issue, Justice Ginsburg.
There is a whole section in the opinion in the Third District Court of Appeals saying the officer and the dog were lawfully present.
They didn't -- that section doesn't go, defense counsel concedes that issue.
That -- that issue -- that part of the opinion goes: We find that the officer and the dog were lawfully present.
So it's squarely before this Court.
Justice Samuel Alito: Well, don't we have to accept that?
Don't we have to accept that as a statement of Florida law?
Howard K. Blumberg: I'm sorry.
I didn't hear the beginning of your--
Justice Samuel Alito: Do we not have to accept that as a statement of Florida law?
Howard K. Blumberg: --No.
Justice Samuel Alito: No?
Howard K. Blumberg: No.
Justice Anthony Kennedy: No.
Howard K. Blumberg: The issue is whether or not that's a violation of the Fourth Amendment.
And -- and just because the Third District Court of Appeal found -- that's -- that's what's before the Court today.
That's why the issue is squarely before the Court.
The Third District Court of Appeal decided the officer had the right to go up and be there on the front porch with the dog.
The Florida Supreme Court disagreed.
There is a passage in the decision of the Florida Supreme Court that says an officer going up to the door -- can go up to the door and do a knock and talk, but when the officer goes up with a narcotics detection dog, that is a qualitatively different matter.
So that issue is--
Chief Justice John G. Roberts: Maybe this is the same question Justice Alito asked earlier, but people have different senses of smell.
So what if there is some person who has, you know, the best sense of smell in the department, and they say, well, let's use him to go do the knock and talks when we suspect drugs; that way, he may discover the odor of marijuana when other people wouldn't.
Is it -- is it -- is it wrong for them to select the person with the best sense of smell to do that?
Howard K. Blumberg: --I think that would lead more to a determination that there was a trespass because they selected the officer who had the best sense of smell to go up to that door.
So they weren't really going up there to do a knock--
Chief Justice John G. Roberts: To do a knock and talk.
You said knock and talks are okay.
Howard K. Blumberg: --Well, but there's -- knock and talks are okay; but, under your hypothet, it appears that the knock and talk was -- was not really what the officer was going up there for.
They picked the officer with the best sense of--
Justice Sonia Sotomayor: You're on a really slippery slope with that answer.
There's dual motives in everything police officers do.
Howard K. Blumberg: --Right.
Justice Sonia Sotomayor: They knock to hope the person comes to the door and that they can see something from the door.
They knock -- they always have a dual motive.
So you're suggesting what.
Howard K. Blumberg: No.
Justice Sonia Sotomayor: In terms of our rule--
Howard K. Blumberg: I don't--
Justice Elena Kagan: --that if they select somebody with a sense of smell because they have gotten a tip of drugs in a house, that we give up, in that situation, the assumption that they went to investigate.
Howard K. Blumberg: --No.
But the rule I'm asking this Court to adopt does not rely on the subjective intent of the police officer.
The rule I'm asking this Court to adopt--
Justice Sonia Sotomayor: --He knocks, and he says to the neighbor, who are you?
I've gotten a report, and I'm smelling drugs, so I know you have drugs in there.
Howard K. Blumberg: --That -- that would be fine.
That would be -- that would be plain smell in that.
Justice Sonia Sotomayor: But if he smells first and asks the question second, that's not okay?
Howard K. Blumberg: --No, no.
What's not okay is if he goes up there to perform a search, or if he conducts a search -- and, again, back to the facts of this case, when a police officer goes up to the front door with a narcotics detection dog, there is no question what that officer is doing.
That officer is performing a search.
And, therefore, if you go to Jones, the officer and the dog have entered -- have physically trespassed, because there is no consent to do that, onto a Constitutionally protected area, the curtilage of the home, and performed a search.
If you just -- you follow the test set forth in Jones and apply it to what happened here and the question presented here, it is a trespass.
Justice Samuel Alito: I thought the reason -- I thought the rationale in Jones, what Jones added, was that it is a search if it was a trespass.
Howard K. Blumberg: Yes.
Justice Samuel Alito: And so I come back to the very first question I asked you, do you have any authority for the proposition that this would be a trespass?
Any case that says this is -- any trespass case in the last five hundred years in any English-speaking country?
Howard K. Blumberg: I don't believe any court has faced this issue as to whether or not taking a police dog up to the front door of a house is a trespass under the common law.
Chief Justice John G. Roberts: Thank you, counsel.
Howard K. Blumberg: Thank you.
Chief Justice John G. Roberts: Mr. Garre, you have three minutes remaining.
REBUTTAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF PETITIONER
Gregory G. Garre: Thank you, Your Honor.
First, with the question of how long they were at the scene, the record says that they were at the scene for five to ten minutes.
That's -- that includes in the car; walking up to the door, which my friend conceded was a minute or two; and, then back in the car and leaving.
With respect to the bracketing, bracketing just means that the dog is getting excited, moving his head around.
This is a passive alert dog.
They get a little bit excited and then sit down.
It's no different than what a neighbor's dog would do when they get to the front door.
Second, with respect to state law, we do think it's important.
And Florida has a decision, State v.--
Justice Sonia Sotomayor: I thought what the dog does, according to the police officer's testimony, is he gave him a long leash so the dog would lead him to the drugs.
And what the dog did, I thought, according to what I read, was go past the motorcycle to make sure -- I mean, the officer said this -- you don't know if the drugs are in the motorcycle, you don't know if they're in the garage, you don't know where they might be.
So the dog is permitted to roam around until he catches the scent.
Is that accurate?
Gregory G. Garre: --Yes.
They're walking up the common path, and you can see it from the picture at the -- appended to the brief, and then up to the front door.
It's near the front door where he alerted by sitting down.
Justice Sonia Sotomayor: But the point is that he's sniffing all the way around the scene.
Gregory G. Garre: He's sniffing; he's breathing.
Justice Sonia Sotomayor: Yes.
Gregory G. Garre: With respect to state law, State v. Morsman, 394 So.2d 408 at 409, this was a case that came up during oral argument in the Supreme Court.
It says that, under Florida law, there is no reasonable expectation of privacy in a porch, taking into account that visitors and salesmen can come up to the front door.
And I think that that's pertinent here.
Justice Kennedy, if you don't like the contraband rationale, then I hope you would consider the knowingly exposed to the public rationale.
Here, the record does show that they -- drug houses do vent the stuff outside.
It's page A-48 of the joint appendix.
That's in the warrant, where they talk about what the air conditioning unit does to the scent of marijuana in the house.
We know that they knew about that because Officer Bartelt came across the moth balls -- that's on page 100 of the joint appendix -- outside of the house.
The mothballs were outside of the house, which means--
Justice Elena Kagan: But I think, Mr. Garre, that the--
Gregory G. Garre: --which means that they knew that the odors were outside the house.
Justice Elena Kagan: --I think, Mr. Garre, that you have to concede that this is a case about police use -- call it a technology, call it whatever you want to call it -- of something that enhances what normal people can sense.
And then the question becomes, do you have a reasonable expectation of privacy in, basically, people just having their normal senses, rather than some technique or method or technology that enhances those senses?
So that your implied consent or expectations about your neighbor might differ fundamentally, you know, if the neighbor comes and knocks on your door, or if the neighbor brings his magnifying glass and his microscope and everything else and starts testing everything around it.
You might say, no, that's -- I'm -- I'm not there for that.
Gregory G. Garre: Well, and I think that gets back to our point that this is a dog that's been used by humans for centuries by scent.
And in that respect, it's quite different than the helicopter that was used for aerial surveillance in Florida v. Reilly.
Chief Justice John G. Roberts: Thank you, counsel.
Gregory G. Garre: Thank you, Your Honor.
Chief Justice John G. Roberts: Counsel.
The case is submitted.
Chief Justice John G. Roberts: Justice Scalia has the opinion of the Court this morning in case 11-564, Florida versus Jardines.
Justice Antonin Scalia: Come out from behind these briefs here.
This case is here on writ of certiorari from the Supreme Court of Florida.
The police received a tip that the respondent Joelis Jardines was growing marijuana in his home.
A surveillance team went to the home but saw nothing.
Two officers then took a dog trained to detect the smell of illegal drugs and approached Jardines' home.
The dog and his handler walked up to the front porch.
After sniffing around and going back and forth on the porch, the dog eventually sat down in front of Jardines' front door which is what he was trained to do upon finding the odor's strongest point.
The officers then secured a search warrant using what they had learned as establishing probable cause and marijuana plants were found in the home.
At trial, Jardines moved to suppress that evidence arguing that when the officers brought the dog up to his door, they had searched his home without probable cause in violation of the Fourth Amendment.
The trial court agreed with him, so did the Supreme Court of Florida and so do we.
The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.
This case does not concern what it means for a search to be unreasonable.
Rather, the question here is more fundamental.
What actions constitute a search?
The basic rule is that a search occurs for Fourth Amendment purposes when the Government physically intrudes for investigative purposes on one of the areas that the amendment protects, that is, intrudes on to persons, houses, papers, or effects.
Our later cases have supplemented this test but the basic approach keeps easy cases easy and by those lights, this is an easy case indeed.
First, there is no doubt that the officers physically intruded into an area protected by the Fourth Amendment.
In our law of search and seizure, the home is first among equals.
At the amendment's absolute core is the right of a man to retreat into his own home and there be free from the state's gaze.
The area immediately surrounding the home which is called the curtilage has long been regarded as part of the home itself.
The police cannot without a warrant based on probable cause hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the house.
And the officers here had all four of their feet and all four of their companions planted firmly on that curtilage.
The front porch is the classic example of an area intimately associated with the life of the house.
The only remaining question is whether Jardines had given the officers permission even implicitly to be on his porch.
He had not.
It is true that by hanging a knocker on the front door, we implicitly invite visitors including the police to approach our homes in hopes of speaking with us.
But the scope of that invitation is limited to a particular place, to a brief duration, and just as importantly to a particular purpose.
No one is invited to come up to the home simply to snoop around.
No door-to-door salesman would think himself licensed to stand on the front porch and peer into the windows.
And no neighbor would think it proper to slip a metal detector around the front lawn before coming to the door and asking permission.
The officers here were on the porch to gather evidence, nothing more, and we have no trouble concluding that the social norms that invite a visitor to the front door do not extend that far.
We therefore need not and do not decide whether the officers violated the reasonable expectations of privacy approach described in Katz versus United States, that the officers learned what they learned only by gathering evidence in a constitutionally protected area is enough to know that a search occurred.
The judgment of the Supreme Court of Florida is affirmed.
Justice Kagan has flied a concurring opinion in which Justices Ginsburg and Sotomayor joined.
Justice Alito has filed a dissenting opinion in which the Chief Justice and Justices Kennedy and Breyer joined.