Florida v. Jardines - 11-564 (2013)
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.