Wednesday, March 27, 2013

Drug dog day afternoon

Joelis Jardines figured he was safe inside his own house. So long as no one knew what was going on behind the doors he had nothing to worry about.

But then someone told the police that he was cultivating copious amounts of cannabis under his roof. And, the police being the police, just had to figure out a way to get inside that house. So, relying on the fact that the courts have shredded the Fourth Amendment to verge of meaninglessness over the years, someone had the brilliant idea to walk a drug dog around the front of the house.

Of course the dog did his little song and dance and one of the officers went off and found a judge who hadn't read the Bill of Rights in several years who signed off on a warrant application and Mr. Jardines found himself dragged into court charged with trafficking in marijuana.

Surprising enough the trial court agreed with Mr. Jardines that the actions of the police crossed the line and constituted an illegal search. The appeals court then reversed the trial court. The Florida Supreme Court granted Mr. Jardine's petition for discretionary review and affirmed the decision of the trial court.

This, of course, would not do for the State of Florida and the case ended up in front of the US Supreme Court to determine whether the officers' actions constituted a warrantless search.

And, in Florida v. Jardines, 569 US ___ (2013), the Nine in Robes decided that the use of the police dog on the front porch of Mr. Jardines' house was a search. The Court held that the area immediately surrounding the house, the curtilage, was a constitutionally protected space and that any intrusion in that space by law enforcement without the permission of the homeowner is verboten.

Justice Scalia's opinion harks back to the original text of the Fourth Amendment and its prohibition against searches of a person or his house, papers or effects.

The opinion does raise questions, however. Just how far will this reading of the Fourth Amendment go when we're talking about aerial drones or surveillance aircraft? While in such a scenario the police aren't physically intruding upon a constitutionally protected space - they are viewing a space that they would have no access to but for the eye in the sky. And what about devices that could detect narcotics from the street? Will the Court look to the distance from the front door or at the effect of the technology?

And while we looking at the actual words of the Fourth Amendment, how will this decision affect government efforts to intercept email and digital communications? What about cell phone GPS information? How about the contents of a laptop's hard drive? And if walking a dog around the front porch is a search of a house, how is walking a dog around the exterior of a car not a search?

The decision is another step in the right direction, now it just remains to be seen if this Court is willing to curtail police efforts to create shortcuts around the Fourth Amendment. I'm not holding my breath.


Lee said...

Paul, I have a question.

In such a case as you have described where the search was rendered void and illegal, what happens to the defendant and the contraband seized. If the search was never supposed to take place and was illegal, then don't the police have to return to the defendant everything that was seized? Maybe even compensate the defendant for the defense attorney costs (considering that it was the illegal actions of the police that resulted in the courtroom proceedings as like in civil court where the loser pays the bill)? How do the police justify to the public returning guns, drugs, and or money to the defendant? If the police to not return such items seized to the defendant then apparently the police are allowed to seize whatever they want (as long as it is not used in court). Has this ever been clarified?

Paul B. Kennedy said...

In a case such as this the evidence seized would be suppressed and the case would end up being dismissed. The dope and any other contraband seized would not be returned and the defendant would not be reimbursed for the expenses he incurred in defending himself.

Lee said...

If the contraband seized is not returned to the defendant then the government is allowed to search and seize at will....?