SUPREME COURT OF THE UNITED STATES
_________________
No. 11–564
_________________
FLORIDA, PETITIONER
v. JOELIS
JARDINES
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.
I
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.
II
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.
A
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.
B
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.
III
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, 409–410 (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.
IV
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.