Friday, April 05, 2013

Left Side of the Aisle #102 - Part 3

Good news #3: SCOTUS says "Down, boy!"

Another bit of good news comes from - gasp - the Supreme Court, which has - double-gasp - placed a limit on the search powers of police.

Just last week, in a 5-4 split, the Court ruled that police cannot bring drug-sniffing police dogs onto a suspect's property to look for evidence without first getting a search warrant. It involved the case of a Florida man who was arrested for marijuana trafficking after police, acting on a tip, brought a drug-sniffing dog to his front door. The dog smelled weed, the cops used that to get a warrant, and the bust followed. In its decision, the Court held that police had engaged in a trespass and an unconstitutional warrantless search and so the conviction must be tossed out.

What was interesting is that the 5-4 split was not the usual one: The majority consisted of Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan - no surprises so far - Clarence Thomas, and Antonin Scalia. The four dissenters were John Roberts, Stephen Breyer, Anthony Kennedy, and Sam Alito.

In his opinion, writing for the majority, Scalia declared that a person has the Fourth Amendment right to be free from the government's gaze inside their home and in area surrounding it, which is called the curtilage.

In a truly weird dissent, see if you follow this, Sam Alito said that if it's not a trespass for a mail carrier to come on a porch for a brief period, then it's not a trespass for cops to do the same to collect evidence against an occupant - the difference in both intent and the desire or willingness of the occupant to have them there being, apparently, irrelevant. He then griped that according to the majority, the police officer in this case committed a trespass because he was accompanied during his "otherwise lawful visit" by his drug-sniffing dog. "Where," he wrote, "is the authority evidencing such a rule?"

Um, Sam? Maybe the Fourth Amendment? I assume you've heard of it.

The Court has already approved the use of drug-sniffing dogs in previous cases, including routine traffic stops. The difference for the majority in this case is that the dog was used at a home, described by Elena Kagen in a concurring opinion as "the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects."

One quick footnote to this is that Kagen referred to a drug-sniffing dog as "a specialized device for discovering objects not in plain view (or plain smell)." That is an awareness that I wish would penetrate the skulls of the other members of the Court. It seems to me that that acknowledgement, particularly the use of the word "device," in and of itself marks the use of drug-sniffing dogs without a warrant as unconstitutional -  unless we are to argue, as it seems some are, that our privacy extends only so far as our most advanced technologies or "devices" cannot penetrate.


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