David C. Newell
If you’re like me, you always thought that police could approach the front door of a residence seeking to speak with an occupant just like any private citizen could. And you probably thought that if an officer were lawfully present in an area open to common use of the public, he could rely upon what he saw, heard, or smelled for probable cause. This may still be the case, but the Supreme Court of the United States has now made clear in Florida v. Jardines that an officer had better not take a drug dog with him during this type of knock and talk.1
What’s that, Lassie? There’re drugs in the house?
In 2006, Detective William Pedraja of the Miami-Dade Police Department received a Crime Stoppers tip that marijuana was being grown in the home of Joelis Jardines. About a month after receiving the tip, the police department and the Drug Enforcement Administration sent a joint surveillance team to Jardines’s home. Detective Pedraja watched the home for 15 minutes and saw no vehicles in the driveway or activity around the home, and he could not see inside because the blinds were drawn. So Detective Pedraja approached the front door accompanied by Detective Douglas Bartlet, a trained canine handler who had just arrived at the scene with Franky, his drug-sniffing dog.
To hear the majority tell it, Franky the drug-sniffing dog was a cross between Cujo and Dynomutt. Justice Scalia noted his “wild” nature as well as his tendency to dart around erratically while searching.2 As Franky approached the front porch he sensed one of the odors he had been trained to detect and began “bracketing” the odor by moving back and forth to track it. Detective Bartlet gave the dog the full 6 feet of leash as well as whatever safe distance he could give him, and Detective Pedraja stood back so he would not get knocked over. After sniffing the base of the front door, Franky sat, which is what he had been trained to do upon discovering the strongest point of the scent. Detective Bartlet pulled the dog away and returned to his vehicle after informing Detective Pedraja that Franky had alerted to the presence of narcotics.
Based upon his smell of the marijuana and Franky’s alert, Detective Pedraja got a search warrant for Jardines’s residence that day. When the police went to execute the search warrant later in the day, Jardines attempted to flee and was arrested. The search revealed marijuana plants, and police charged Jardines with trafficking in cannabis. At trial, Jardines moved to suppress the marijuana plants based upon an unreasonable search, and the trial court granted the motion. The Florida Supreme Court upheld the trial court’s decision and held that the search was unreasonable because police did not have probable cause to enter the property with Franky. Additionally, the court discounted Detective Pedraja’s observations because the trial court had made a factual finding that those human observations came after Franky had already alerted.3
No dogs allowed
Now, if you thought that Illinois v. Caballes—where the United States Supreme Court upheld a search of a lawfully stopped car based upon a drug dog alert—would control the outcome of this case, you would be wrong. And if you thought that Kyllo v. United States—where the United States Supreme Court held a thermal imaging scan of a residence without a warrant violated a defendant’s expectation of privacy—would require suppression in this case, you would be wrong again. No, Justice Scalia based the majority holding upon United States v. Jones, explaining that the evidence was properly suppressed because police conduct violated Jardines’s property rights.
Recognizing that the police investigation had been conducted on the curtilage of Jardines’s home, an area treated just like the home for Fourth Amendment purposes, the court framed the applicable question as whether the search was accomplished through an unlicensed physical intrusion. Traditionally, the knocker on the front door is treated as an invitation or license to attempt an entry onto someone’s property. According to the court, “this implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent an invitation to linger longer) leave.” The court even noted that the traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the nation’s Girl Scouts and trick-or-treaters.4
But according to the court, the knocker on the door doesn’t authorize a trained drug dog to explore the area around the home. Thus, the court held that the scope of the license to approach the front door is limited not only to the particular area but also to a specific purpose. The background social norms that invite a visitor to the front door do not invite him there to conduct a search: “One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.5That the officers learned what they learned only by physically intruding on Jardines’s property to gather evidence is enough to establish that a search occurred.”
Well, wait, I know what you’re thinking. Officers can walk up to the front door and knock just like anyone else can. And anyone can walk on your front lawn with their dog, right? Who cares about the officer’s subjective intent? This is the exact argument that the dissent made, but the majority rejected it with some subtle appellate judo. The court first acknowledged its prior caselaw that the officer’s subjective intent is irrelevant, but that, according to the court, was in a situation only where the stop or search is objectively reasonable. Here, the question was precisely whether the officer’s conduct was objectively reasonable. Because the behavior of bringing a trained drug-sniffing dog to the door objectively revealed that their purpose was to conduct a search, they exceeded the implied license to enter the porch.6
Moreover, three justices would have rejected the search under the traditional, expectation-of-privacy analysis. Justice Kagan, joined by Justices Ginsburg and Sotomayor, explained that Kyllo v. United States already resolved the case. There, police used a thermal-imaging device to detect heat emanating from a private home even though they committed no trespass. To the concurring justices, Franky was a “super-sensitive instrument” that was “not in general public use” and that could be used to “explore details of the home that would previously have been unknowable without physical intrusion.
This argument overlooks, however, that one reason the thermal imaging instrument in Kyllo was impermissible was because there was no guarantee that the use of the equipment would always be lawful, i.e., it could detect “the lady of the house” taking her daily sauna and bath rather than only detecting the growing of marijuana.7 Unlike the thermal imaging in Kyllo, or even the super-high-powered binoculars that the concurring opinion draws an analogy to, the drug-dog sniff would necessarily alert only to the presence of contraband. Indeed, in Illinois v. Caballes, the court had clearly rejected the same argument (regarding a drug-dog alert) the concurrence advanced in Jardines.8 Here’s hoping the fact that only three judges supported this rationale suggests that drug-dog sniffs are not searches absent a violation of a defendant’s property rights.
For their part, the concurring justices, who joined the majority, regarded Franky as “a super-sensitive instrument, which [police] deployed to detect things inside that they could not perceive unassisted.” Justice Kagan went on to note that 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.9 “They are to the poodle down the street as high-powered binoculars are to a piece of plain glass.”10 Justice Scalia did not distance himself from this characterization, analogizing Franky the drug-sniffing dog to the GPS device in United States v. Jones and noting that where police use a physical intrusion to explore the details of a home, “the antiquity of the tools that they bring along is irrelevant.”
Of course, the dissent took issue with the majority’s selective recitation of the facts. As Justice Alito pointed out, “the opinion of the court may leave a reader with the mistaken impression that Detective Bartlett and Franky remained on [the] respondent’s property for a prolonged period of time and conducted a far-flung exploration of the front yard.” But Detective Bartlet and Franky approached the front door via the driveway and a paved path—the route that any visitor would customarily use—and Franky was on the kind of leash that any dog owner might employ. And while Franky did engage in “bracketing” behavior, the 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 at most a minute or two. More importantly, Detective Pedraja noticed the smell of the marijuana just as Franky had.11
Knock and sniff = bad, knock and talk = good
Going forward, the big concern from this case for law enforcement seems to be a potential to undermine a police officer’s ability to walk up to and knock on a door without a warrant, just as any private citizen might.12 After all, it probably would not take a lot of effort to elicit testimony from an officer that he approached the front door of the residence because he was conducting an investigation and was hoping to obtain consent to search or observe incriminating evidence or behavior. Would this provide the type of objective proof of the officer’s subjective intent that would exceed the implied license to approach the door and knock?
But the majority opinion seems very focused upon the presence of the dog, not the other conduct of the officer. As discussed above, so long as the officer approaches the home by the front path, knocks promptly, waits briefly to be received, and then leaves if there is no invitation to stay longer, it appears a police officer’s “knock and talk” will be permissible.13 But like a traditional consent to search analysis or a case where a detention is unduly prolonged, where the officer exceeds the scope of that invitation, his behavior will be unreasonable.14
And of course you can “what if” this rule to death. Does this mean a drug-dealer can place a “No Cops Allowed” sign on his front door to prevent controlled buys inside the residence?15 What about common areas of hotels or apartment complexes?16 Do those areas constitute the same type of curtilage that the United States Supreme Court protected in Jardines?17 Given how new both Jones and Jardines are, it’s hard to predict where the United States Supreme Court and the Texas Court of Criminal Appeals will come down on these questions. Doubtless they will fall back on the typical factors used to determine whether those areas harbor the “intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’”18 On top of that the court will have to layer considerations attendant to lessees and invited guests as to whether those individuals can claim a property interest in the curtilage.19
These questions are certainly legitimate, but gaming out all the answers to every possible question would require far more discussion and analysis than this article can accommodate. What should be noted, however, is that scenarios similar to those touched on above have already been analyzed under an “expectation of privacy” standard.20 And, as far as Texas is concerned, the Court of Criminal Appeals has already recognized that a violation of property rights provides standing to contest a search, though admittedly not as clearly as the United States Supreme Court did in United States v. Jones.21 That is not to say that there will be smooth sailing ahead for law enforcement; Jardines has certainly provided fodder for new litigation under the Fourth Amendment. But some of the groundwork has already been laid, so let’s hope Jardines will not require a complete reinvention of the wheel.22
One case can, however, be definitively discarded after Jardines. In Rodriguez v. State, the First Court of Appeals upheld the use of a drug-dog sniff outside a defendant’s front door as support for a search warrant.23 This case predated Jones so it was analyzed under the “reasonable expectation of privacy” analysis without regard to whether the police had exceeded the scope of the implied license to enter onto the property. While the dog-sniff search of Rodriguez’s front door may not have violated his expectation of privacy, Jardines makes clear going onto the property, even by the front path, with a drug-sniffing dog violated Rodriguez’s property rights and therefore the Fourth Amendment. Consequently, Rodriguez is no longer good law.
Is it retroactive?
Well, in United States v. Peltier24 the United States Supreme Court held that any judicial enlargement of the exclusionary rule would be given retroactive effect only when the law enforcement officer had reasonable knowledge that the search was unconstitutional under the Fourth Amendment at the time of the search.25 More recently, the United States Supreme Court reaffirmed this principle in Davis v. United States. There, the court faced what to do with searches that had been held unreasonable under Arizona v. Gant. According to the court, the exclusionary rule is not a personal constitutional right, nor is it designed to redress the injury occasioned by an unconstitutional search.26 Its sole purpose is to deter “future” Fourth Amendment violations. Consequently, officers who conduct a search in an objectively reasonable reliance on binding judicial precedent are not said to be subject to the exclusionary rule.27 And while these cases focused upon cases pending on appeal at the time a new rule was announced (rather than a vehicle for overturning past convictions), the Supreme Court has also limited the ability to challenge a Fourth Amendment violation on habeas corpus to those situations where the defendant has not been afforded the opportunity to a full and fair consideration of his search-and-seizure claim at trial and on direct review.28 Thus, it seems unlikely that there could be any meaningful retroactive application of this decision, assuming, of course it is not a “new rule.”29
The Supreme Court is correct when it says that resort to a property-rights analysis made this case easy to decide. But it would have been just as easy to decide the case under an expectation-of-privacy analysis. The only difference would have been the result and fewer questions going forward. While police can knock on a person’s front door to ask her questions, it remains to be seen just what additional conduct exceeds the scope of that implied license. One thing is certain, though. When it comes to knocking on doors, police officers should leave the dogs at home.
1 Florida v. Jardines, 2013 WL 1196577 (Mar. 26, 2013)(5:3:4).
2 Indeed, Justice Scalia, author of the majority opinion, doesn’t even refer to the dog by name. But he’s probably a cat person.
3 This seems to explain Justice Scalia’s complete failure to acknowledge that Detective Pedraja had also smelled marijuana and the search warrant was also based upon those observations. Similarly, the fact that Detective Pedraja smelled the marijuana seems to undercut Justice Kagan’s effort to paint Franky as a “super-sensitive instrument.”
4 Justice Scalia refrained, however, from shouting, “Hey you kids! Get the hell off my lawn!” See e.g. Gran Torino, Warner Bros. (2008).
5 Because understanding property rights is easy. See e.g. The Rule Against Perpetuities.
6 Presumably if the officers had an objective legal basis to be on the property independent of a “knock and talk,” such as an emergency or a warrant, then the dog sniff would be justified.
7 Kyllo v. United States, 121 S.Ct. 2038, 2043 (2001).
8 See Illinois v. Caballes, 125 S.Ct. 834, 838 (2005).
9 See Florida v. Harris, 133 S.Ct. 1050, 1053-54 (2013).
10 Or as I like to think of it, it’s the difference between a zombie and a zombie redneck torture family, or the difference between an elephant and an elephant seal. Cabin in the Woods, Lionsgate Films (2012).
11 The opinion is silent as to whether Detective Pedraja engaged in bracketing behavior.
12 Kentucky v. King, 131 S.Ct. 1849, 1862 (2011)(“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. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door to speak”). See also Cornealius v. State, 900 S.W.2d 731, 733-34 (Tex. Crim. App. 1995)(“Nothing in our Constitutions prevent a police officer from addressing questions to citizens on the street; it follows that nothing would prevent him from knocking politely on any closed door”).
13 Jardines, 2013 WL 1196577 at *4 (2013).
14 See e.g. State v. Weaver, 349 S.W.3d 521, 532 (Tex. Crim. App. 2011)(noting that drug-dog sniff around van parked on private property exceeded the scope of the express consent to enter the business).
15 Cf. Phillips v. State, 161 S.W.3d 511, 515 (Tex. Crim. App. 2005)(holding that minor recruited by TABC was not a trespasser at bar despite the presence of a sign excluding minors); Nored v. State, 875 S.W.2d 392, 397 (Tex. App.—Dallas 1994, pet. ref’d.)(“If the person in possession of the property has not made express orders prohibiting any form of trespass, and if the police follow the usual path to the front door, then the police have not violated the person’s Fourth Amendment rights”).
16 See e.g. Wilson v. State, 98 S.W.3d 265, 272 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d.)(holding that the defendant had no reasonable expectation of privacy outside his hotel room door).
17 See e.g. Evans v. State, 995 S.W.2d 284, 286 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d.)(holding that fenced-in common area of an apartment complex was not part of the curtilage of the defendant’s apartment); see also Cuero v. State, 845 S.W.2d 387, 391 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d.)(parking area of enclosed condominium complex was not the curtilage of the apartment).
18 See United States v. Dunn, 107 S.Ct. 1134, 1139 (1987)(addressing whether an area amounts to curtilage by considering the proximity of the area to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken to protect the area from observations by people passing by).
19 See e.g. Minnesota v. Carter, 119 S.Ct. 469, 474 (1998)(recognizing that overnight guests have expectation of privacy in apartment, but those merely “legitimately on the premises” had no legitimate expectation of privacy in the apartment).
20 See e.g. Wilson, 98 S.W.3d at 272 (no expectation of privacy outside of hotel room door); Cuero, 845 S.W.2d at 392 (no expectation of privacy in enclosed parking area of a condominium complex).
21 See e.g. Wilson v. State, 311 S.W.3d 452, 469 (Tex. Crim. App. 2010)(Hervey, J. concurring)(noting that seven judges decided in Chavez v. State that the state exclusionary rule is triggered when a defendant’s personal or property rights are violated).
22 Of course, sailing on reinvented wheels may not be very smooth after all. Mixed metaphors often make for a very bumpy read.
23 Rodriguez v. State, 106 S.W.3d 224, 228 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d.), cert. denied, 540 U.S. 1189 (2004).
24 Freedom! Oh darn, wrong Peltier. Thanks a lot, Rage Against the Machine. See www.youtube .com/watch?v=H_vQt_v8Jmw.
25 United States v. Peltier, 95 S.Ct. 2313, 2317-18 (1975).
26 Davis v. United States, 131 S.Ct. 2419, 2426 (2011). This is a different Davis than the other Davises featured in Supreme Court precedent that you might be thinking of. He’s like Ohio and Arizona in that respect. He gets around.
27 Note that in Griffith v. Kentucky, 107 S.Ct. 708, 716 (1987), the Supreme Court held that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases pending on direct review or not yet final. While the court did not overrule Griffith in Davis, it noted that even if a defendant can claim the new, substantive Fourth Amendment rule as a basis for relief, the remedy of suppression would not necessarily follow from that violation. Arguably, this suggests Davis has overruled Griffith sub silentio or at least removed any ability to enforce the claim of relief.
28 Stone v. Powell, 96 S.Ct. 3037, 3048 (1976).
29 See Chaidez v. State, 133 S.Ct. 1103, 1107 (2013)(noting that a new rule of criminal procedure is not retroactive where the court announces a new rule rather than an application of a principle that governed a prior decision to a different set of facts).