Wednesday, April 17, 2013

Dog Sniffs and Stigma

By Sherry F. Colb

In my column for this week on Verdict, I discuss Florida v. Jardines, a recently decided case in which the U.S. Supreme Court held, by a 5-4 majority, that police violated the Fourth Amendment when they walked onto the front porch of a suspect's home and had a narcotics-trained dog sniff for several minutes to detect  the scent of marijuana emerging from inside the house.  My column discusses some of the uncertainty I have, after reading the majority and concurring opinions (the latter joined by three members of the five-Justice majority), regarding the ways in which the Court might analyze some hypothetical variations on the dog-sniff-on-front-porch scenario.

In this post, I want to consider why we might object to a narcotics sniff.  As I discuss in my column, I think it is somewhat odd to maintain that people have a reasonable expectation of privacy in the presence of unlawful materials inside their homes.  To the extent that a dog sniff exposes only the fact that there are (or are not) illegal narcotics in the home, how can it be legitimate to object to a sniff?

One response is to understand "reasonable" in a purely empirical fashion.  It is reasonable to expect the presence of narcotics in one's house to remain unknown to the police, because absent police intervention, it is realistic to project that no one will know that there are narcotics inside the home.  The problem with that analysis, however, is that the Supreme Court has taken an expressly normative approach to "reasonableness," particularly when the context is an investigation that will uncover illegal possession.  It has said, for example, in Illinois v. Caballes, that people lack any reasonable expectation of privacy in the fact that there are narcotics in their car.  In addition, the Court has explicitly said that "[a] burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as 'legitimate.' His presence, in the words of Jones [v. United States, [citation omitted] is 'wrongful;' his expectation [of privacy] is not 'one that society is prepared to recognize as reasonable.'"  Police, in other words, need not honor empirically realistic but normatively baseless expectations that criminal activity will go undiscovered.

One could defend the Jardines concurrence (which endorses a reasonable expectation of privacy in the case) by saying that the home is different from everywhere else.  The Supreme Court has historically elevated privacy in the home, such that, for example, home arrests must be accompanied by an arrest warrant, though street arrests need not be, and home entries must ordinarily occur only in the presence of probable cause, whereas persons and cars may be frisked for weapons in the presence of only reasonable suspicion that a person is armed and presently dangerous.

Yet the above comprise purely procedural protections for the home.  One must, in other words, have greater certainty regarding (or the extra layer of review by a neutral magistrate of the evidence indicating) the presence of criminals or illegal materials inside a home before entering than one must have about the presence of (some sorts of) criminals or illegal materials inside a car.  Still, this does not have obvious implications for whether people have the right to keep the pure fact of illegality secret from precise detection when that illegality occurs inside  the home rather than inside a car.  Stated differently, it would seem that if people have no right to the secrecy of their illegal actions, then they lack that right no matter where the illegal action might occur, though the likelihood that it is occurring might need to be greater when a home entry is sought.

One response to this argument might be to point out that the Court has arguably distinguished between the home and the outside, though not in the Fourth Amendment context.  The Court has said in Stanley v. Georgia, for instance, that a law criminalizing private possession of obscenity violates the First Amendment.  I find this ruling difficult to understand as a First Amendment matter, because ordinarily, when people have the right to possess something privately, then other people have the right to sell it to them (contraception is one example), yet the Court has not extended First Amendment protection to the sale of obscenity.  I have (in The Qualitative Dimension of Fourth Amendment "Reasonableness", 98 Columbia Law Review 1642 (1998)),  therefore interpreted the ruling in Stanley as best understood as a Fourth Amendment decision, holding that even though there is no actual First Amendment right to possess obscenity, there is a Fourth Amendment right of privacy, and a search for evidence of obscenity possession is likely to be too intrusive of privacy, relative to the payoff in combating obscenity, to pass muster, as a matter of Fourth Amendment reasonableness.

Even if one takes this approach, however, and says that like the possession of obscenity, the possession of narcotics is not sufficiently threatening to justify the invasion of privacy involved in a home search, that does not really explain the decision in Jardines.  Unlike an ordinary "search" for obscenity, which necessarily exposes private, intimate spaces that have nothing to do with the possession of obscenity, the dog sniff for narcotics is precisely tailored to narcotics.  One might want to say that after the dog sniff occurs, the Fourth Amendment makes a home search for narcotics unreasonable, because home possession of narcotics -- analogous to private possession of obscenity -- is not a threatening enough phenomenon to justify the inevitable exposure of intimate, innocent features of the home during that search.

Notably, though, the Court has said nothing of the kind.  Once police do obtain probable cause and a warrant to search a home for narcotics, they may do so, notwithstanding the fact that it is "only narcotics possession" and the privacy of the home is at stake in a fundamental way.  And such searching the home for narcotics (and thereby seeing the inside of a person's house)  is quite different from exposing the fact of narcotics possession itself through a dog sniff and alert outside the door.  Since the Court seems comfortable with actual searches of homes for narcotics upon probable cause and a warrant, it seems that the Court must not be discounting the strength of the government's interest in finding narcotics (in the way that I suggested it might have been doing regarding obscenity).

I would propose, however, that even though there may not be a reasonable expectation of privacy in keeping the police ignorant about the presence of contraband in one's  home, there ought to be a reasonable expectation of privacy against suspicion-less public targeting for criminal investigation.  When police approach a person's house with a drug sniffing dog who then sniffs for narcotics, the meaning of this act is quite plain for the neighbors:  the police think that their neighbor is a drug dealer.  This is true, in fact, even if the dog indicates the absence of narcotics, and the police leave the premises.  Approaching a person's house in this way thus stigmatizes the resident, perhaps irreparably, no matter what ensues.

I think stigma would provide a much sounder foundation for a right against what occurred in Jardines than anything offered up by either the majority (which focuses on the fact that a porch is private property and part of the curtilage) or the concurrence (which emphasizes reasonable expectations of privacy).  One consequence of stigma analysis that the Justices may dislike, of course, is that it could as easily apply to a car as it could to a house.  If police have a narcotics-trained dog sniff a particular car, then people around that car will likely infer that the police believe the driver (and perhaps everyone in that car) to be associated with narcotics.  By the same token, though, a dog sniff of every car going through a sobriety checkpoint (or other lawful checkpoint, such as at an airport) would not raise the same stigmatizing possibility, so the damage to the Court's precedents would be limited.  Likewise, the walking of a narcotics dog along all sidewalks sniffing for narcotics would leave particular residents free of  individual targeting and therefore of individual stigma, though it could serve to stigmatize an entire neighborhood, much as the drug checkpoints that occur in the real world currently do.

To take account of such stigma is to acknowledge that police investigation has collateral effects that have nothing to do with privacy from police knowing or seeing things that should be kept secret, collateral effects that are considerable and that deserve our attention.  It would also provide a more coherent and sensible approach to dog sniffs (and to much more than that) than the recent "what is a search" cases have done.