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Argument recap: If you lose Scalia…


If a lawyer defending a police tactic learns in the first few minutes of a hearing that Justice Antonin Scalia’s vote is probably lost, the trouble signs are ominous indeed.   And, if it also becomes clear that Justice Anthony M. Kennedy is hostile to your main argument, and tells you so flatly, the situation may go swiftly from dire to hopeless.  That was what Washington attorney Gregory G. Garre encountered Wednesday as he sought authority for police to use a drug-sniffing dog to check out the front of a private home, without a search warrant.

If the case of Florida v. Jardines was in fact out of his control virtually from the start, Garre might be comforted by the very real chance that he would win the second case he argued immediately after — Florida v. Harris.  The Court seemed to have little interest in clamping down on the use of drug-sniffing dogs as a general police practice — at least in settings other than private homes — and disdainfully dismissed the notion that such a dog would not be well-trained to be reliable  before being put to work.

The two Florida cases returned the Court to the constitutional arena of drug searches, where the Justices — and especially Justice Scalia — have been notably sympathetic to law enforcement techniques.   In fact, the Court had spoken with approval of using trained dogs in that activity, and had even ruled — several times — that a drug-sniffing dog’s search is not a search at all under the Constitution.  But the Court had not encountered a case in which the K-9 partners of officer and dog went right up to the front door of a home, and the dog got a chance to smell whether illegal drug activity was going on inside.

Police in Miami did not have a warrant when they took a dog named Franky up on the porch at the home of Joelis Jardines, where Franky “alerted” to the smell of marijuana coming from under the front door.  Attorney Garre (a former U.S. Solicitor General who took this case on Florida’s side to defend police dogs and their handlers) no doubt went to the lectern in a mood of optimism as he asked the Court to rule once again that such a tactic is not a search at all under the Fourth Amendment.

His first words recalled the Court’s prior rulings “that a dog sniff is not a search,” and emphasized the point that a police dog only detects something that is illegal, in which “no one” can claim they have a privacy right against police discovery.  Justice Kennedy stopped him immediately: “That just can’t be a proposition that we can accept across the board.”  To contend that no one has a privacy claim for contraband, Kennedy said, is “a circular argument” that “just doesn’t work.”

Although it was not yet clear whether Garre could try an alternative argument that might hold Kennedy’s vote, the Justice had said enough to put Garre’s case in doubt.  It did not take much longer, though, for the woe to deepen for Garre.   Some of the more liberal Justices set the scene by exploring whether Garre would concede any privacy rights to shield a home from a drug-sniffing dog, but it was Justice Scalia who was adamant about it.  The Court had ruled in the past, he said, that police are “not entitled to go onto the curtilage of the house, inside the gate” to see what they could not from a distance using binoculars.  “Why isn’t it the same thing with the dog? This dog was brought right up to the door of the house.”

Garre tried to recover, making the point (which the other side would later seek to refute) that it had been conceded in this case that the officer and the dog had a legal right to be on the porch.  Scalia shot back that, if that had been conceded, then the Court should not have taken this case.  “It seems to me crucial,” he went on, “that this officer went onto the portion of the house, as to which there is privacy, and used a means of discerning what was in the house that should not have been available.”

When Florida’s lawyer then tried to argue that homeowners gave “implied consent” for others — such as trick-or-treaters — to come onto their porch, and could even bring a dog with them and expect the homeowner’s consent,  the more liberal Justices reinforced Scalia’s point by saying that such consent could not be assumed for a police officer bringing a dog with the sole purpose of detecting criminal evidence.   Soon, Scalia was back into the argument flow, once again emphasizing his view that when police go onto the private space of a home, with the purpose of conducting a search, “it’s not permitted.”

Garre was then subjected to sustained tough questioning by liberal Justices, stressing their perception that what had happened at Jardines’ home was not just a fleeting smell sweep by the dog Franky, but — as Justice Elena Kagan put it — “a lengthy and obtrusive process.”

Garre tried a digression, arguing that the air conditioners at Jardines’ house were pushing out the smell of marijuana from inside the house, so anyone coming up close to the house could smell it without invading any private space at all.    The dog sniff at the time, he said, “is not a physical invasion.”  Scalia was not persuaded: “It isn’t just the sniffing in the abstract.  It’s the sniffing at a person’s front door, right?”

Justice Kagan suggested that Franky’s sense of smell was not just a substitute for human smell, but was more like an enhanced technology — perhaps like an imaginary “smell-a-matic” machine that would have the capacity to detect what was privately occurring in the home.   She quoted from the Court’s 2001 decision in Kyllo v. United States, declaring that police use of a heat-sensing device from outside a house was a search that required a warrant.  Garre was arguing, she said, that the Court should not think of Franky as “kind of a sense-enhancing law enforcement technology,” but rather “just like a guy.”  It was clear she did not accept that.   Justice Sonia Sotomayor indicated she did not accept it, either.

An Assistant to the U.S. Solicitor General, Nicole A. Saharsky, had the same difficulty as Garre with the more liberal Justices, but she also managed to bring out more of Justice Kennedy’s skepticism, too.   In an attempt to counter what Justice Kagan had said about the Kyllo decision, Saharsky said that what made that case different from a dog sniff case is that one who has illegal drugs has no expectation of privacy in them.   Kennedy promptly remarked: “This idea that, oh, well, if there is contraband, then all the rules go out the window, that’s just circular, and it won’t work for me, anyway.”  When Saharsky tried to rebut his point, Kennedy repeated it — several times.

When Jardines’ lawyer, Miami attorney Howard K. Blumberg, went to the lectern, Justice Kennedy displayed a different kind of skepticism.  Blumberg had opened with the comment that it was always a search under the Fourth Amendment whenever police learn “any details inside a home which an individual seeks to keep private.”  Kennedy said that was “just too sweeping and wrong” because police often seek entirely innocent information about people in ordinary conversations with them, so to put every private detail beyond potential police discovery was a proposition that he could not accept.

From that exchange, it began to appear that what Kennedy was most concerned about in the Jardines case was to keep the Court from going too far in either direction, to put too much within the reach of police, and to put too much beyond their reach.  It was, perhaps, a reminder that Kennedy had dissented in the Kyllo decision (indeed, he is the only dissenter in that case still on the Court).

Justice Scalia (the author of Kyllo) also relented a bit when Blumberg was arguing, making points about how Jardines was “careless” in letting the aroma of marijuana get pushed outside the home by air conditioning.   It was not evident, though, that the Justice had dropped his concern about police going onto private property without a warrant and with the specific purpose of making a search.  In fact, he would later tell Blumberg that he was conceding too much authority to a police officer to enter the private exterior space of a home.

Blumberg also had difficulty with some of the conservative Justices, notably Justice Samuel A. Alito, Jr., in an alternative theory — that the use of a police dog to sniff at the exterior of a home was a kind of trespass that violates the Fourth Amendment.   The Miami lawyer’s strongest moment, though, appeared when he countered — with some success — the state’s argument that he had conceded that the officer and the dog had a legal right to be on Jardines’ porch.   In arguing that point, he strengthened his case by making it clear that he was not objecting to a police officer approaching a home, knocking, and asking questions — as long as the officer was not making a search, and was not using a dog to make a search, when the officer had no warrant.  “It’s what the dog is doing on the front porch” that counts, he argued.

Jardines’ lawyer also had some difficulty navigating through questions by Justice Alito and by Chief Justice John G. Roberts, Jr., about whether he was challenging the intent of the police officer, in the face of Supreme Court precedents that say the subjective plans of an officer are beside the point in analyzing the constitutionality of what they had done.  Blumberg’s explanation was that he was not talking about the officer’s intent, but about what the officer did upon entering private space.

The atmospherics in the courtroom changed entirely when the Court went into the second argument, in the Harris case.   The issue in that case is whether a sniff by a drug-detection dog, indicating the presence of a drug, should be treated as enough justification for police to go ahead and make a search because the “alert” amounts to “probable cause” to search.   Garre had made a tactical decision to argue the case more from the point of protecting the use of police dogs from over-reaching by courts trying to dig into the details of how such a dog was trained and how it performed.  That argument went over well with the Justices, especially since Garre — as the case moved along — was willing to allow lawyers for a criminal suspect to raise questions about dog training and certification, so long as those were not absolute mandates from a court.

Clayton Harris’s lawyer, Tallahassee attorney Glen  P. Gifford, struggled often to deal with the Justices’ skepticism about the need for courts to second-guess how a dog was trained and how that training was maintained.   Gifford’s most difficult moments came when Justice Scalia challenged him to give reasons why a police K-9 officer would ever use a dog that was not well-trained and would thus be ineffective in doing the only task the dog was to perform.

The Court is expected to decide the two cases, probably in separate rulings, by next summer.


Recommended Citation: Lyle Denniston, Argument recap: If you lose Scalia…, SCOTUSblog (Oct. 31, 2012, 4:06 PM),