Monthly Archives: March 2013

Supreme Court: Dog Sniffs At Persons’ Homes Are Searches Requiring Probable Cause Under the Fourth Amendment

Washington, DC (March 26, 2013) – In its decision in Florida v. Jardines (11-564), the U.S. Supreme Court today upheld the Florida Supreme Court, which affirmed the suppression of marijuana evidence unearthed by law enforcement arising out of their use of a canine sniff at Mr. Jardines’s front door without probable cause. This is the second dog sniff opinion of the term. This time, though, the Court sided with personal rights over law enforcement’s use of enhanced searching technologies.

In summary,

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

 As in United States v. Jones, the GPS case from last term, the Court’s majority today reaffirmed a centuries-old tradition to “keep easy cases easy”—the government must obtain a warrant before it may intrude upon private property in order to gather evidence of a crime.  By finding the conduct of law enforcement in this case to have violated a person’s constitutional right to protection from unwarranted search and seizure, the Supreme Court made clear today that the Fourth Amendment is not, in fact, dead.

The use of a trained police narcotics dog is no different than the use of GPS or thermal heat imaging technology. Law enforcement may not use enhanced search technologies to intrude upon private spaces without a warrant. Today’s ruling reinforces the old adage that “a man’s home is his castle” and the Government, even in the form of a “drug sniffing” dog, cannot intrude on that fundamental right with the purpose of gathering incriminating evidence without a warrant.

Some highlights from the opinion:

 (a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3.

(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170, 180. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12.

(c) The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares,” California v. Ciraolo, 476 U. S. 207, 213, but “no man can set his foot upon his neighbor’s close without his leave,” Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.

(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347.

And the best part about it: Scalia delivered it!

A link to the Supreme Court’s opinion in Florida v. Jardines is available here.


Used, abused and resold: “first sale” applies to works made abroad

~ By Sara Boyd (Student Blawg)

Overshadowed by arguments about same-sex marriage rights and affirmative action, the court handed down an opinion that has a global impact on copyright and consumerism. Although it is unlikely that any American will realize the ripple of change considering many didn’t know there was ever an argument about it.

 That issue was whether the “first sale” doctrine applied to foreign produced copies of American copyrighted materials. The scenario of Kirtsaeng v. Wiley goes like this: Mr. Kirtsaeng came to the United States from Thailand to study. In order to supplement his income while in school, he formulated a plan to have his family purchase international editions of textbooks in Thailand, ship them to him in the U.S. and resell them, at a profit, on Ebay. There is no argument about the legitimacy of the textbooks as they were not pirated. The problem which arose was whether the “first sale” doctrine should apply and thus the importation would have been legal. In the internet-centric, global world we live in, it is hard to believe that a product lawfully manufactured overseas would be subject to different laws than one produced here.

 Let’s begin by looking at the first sale doctrine. Briefly, Section 109(a) is the principle that once the owner of genuine copyrighted material distributes it, the buyer can treat the object as his/her own and freely sell, lease, or lend the work to another. There are, however, two more clauses of the Copyright Act that were pertinent to this case. First, Section 602 subsection (a) is the importation clause. In essence it says that you cannot import copyrighted material without the permission of the copyright holder. If you do not obtain that permission, it is infringement of their (the copyright holder’s) right to distribute their materials under section 106; which leads us to section 106 subsection (3). Pretty much this section just says the copyright holder has the exclusive right to distribute their work as they see fit. However, it is subject to sections 107 through 122. And low and behold would you believe it, the first sale doctrine is section 109. How circuitous! This seems like an exclusion to the importation clause. The main crux of this case was section 109(a)’s five little words: “lawfully made under this title” and how circuitous the Copyright Act really is. Does “lawfully made under this title” mean subject to the Copyright Act or made where the Copyright Act is applicable? The court chose the non-geographical interpretation and subsequent interdependency of the Copyright Act sections.

 Breyer favored an Occam’s razor approach to interpreting the key “five little words” in section 109(a) and thank goodness! Had the vote had swayed the other way you would have been an unwitting mule to copyright infringement having purchased that romantic teen vampire novel (given it was manufactured overseas) before boarding the plane heading home and subsequently “importing” it to the States. Had the vote swayed the other way, once you remembered that you are not a fifteen year old girl and thus the book was a bit age “inappropriate” you could never lawfully rid yourself of it without obtaining the oh-so humble authorization of the copyright holder. And really, who has time for that? Fifteen year old girls that’s who. Instead we shall continue our blissful ignorance that a doctrine we have all taken for granted applies to any good with an American copyright attached to it in the entire world. Doesn’t it just make you want to go out and buy foreign manufactured stuff just to exercise your rights as an American consumer?

 In the strangest and slightly disconcerting collection of dissenting Justices (Ginsburg, Kennedy and Scalia) ever, Ginsburg describes her belief that America is hesitant to move towards “international exhaustion.” The flaw in her argument is that so many people have operated as if this decision had always been the law. Breyer touches on this when he quotes the used book dealers saying “they have, ‘operat[ed]…for centuries’ under the assumption that the ‘first sale’ doctrine applies.” It isn’t just the used book dealers, it’s practically every American. Never have I once stopped to consider where my copy of “Twilight” was manufactured before I used it as camp fire kindling. The “world is flat” as Thomas Friedman reminded us in 2005 and now is no time to revert to the ostrich with its head in the sand, isolationist ideology.

Read the opinion here.