Florida v. Jardines - 11-564 (2013)



No. 11–564



on writ of certiorari to the supreme court of florida

[March 26, 2013]

     Justice Alito, with whom The Chief Justice, Jus- tice 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.


     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 im- mediately 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.


     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.


     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 be- tween 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, drive- ways, 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 in- dividuals 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.


     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 Respon- sibilities 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.


     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 ferment- ing 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 oc- cupant 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.


     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.

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