In the words of Monty Python, the Fourth Amendment is “not quite dead yet.” At the turn of the century, many practitioners, judges, and scholars alike bemoaned the “death” of the Fourth Amendment following a series of controversial pro-police decisions from the United States Supreme Court. The president of the National Association of Criminal Defense Attorneys was somewhat more charitable: “[T]he Fourth Amendment is not dead, it's just been in a 28-year coma.” John Wesley Hall, “A Great Reawakening,” Champion, June 2009.
On March 26, 2013, the Supreme Court issued yet another decision suggesting that the Fourth Amendment is recovering from its multi-decade coma. In Florida v. Jardines, -- U.S. --, 133 S. Ct. 1409 (March 26, 2013), the Miami-Dade Police Department received an unverified tip that Joelis Jardines was growing marijuana in his home. Several weeks later, a drug enforcement team surveiled the home, observing nothing suspicious. They arranged for a drug-sniffing dog to join them, and then proceeded to walk up to the home’s front door, having the dog sniff inside the home. The dog alerted to the presence of drugs, and the detectives obtained a warrant to search Jardines’ home. Inside, they found numerous marijuana plants.
In an opinion authored by Justice Scalia, the Supreme Court held that the use of the dog to sniff at the front door constituted an impermissible warrantless search. The Court relied upon a 1765 case from England, Entick v. Carrington, 2 Wils. K.B. 275, 95 Eng. Rep. 807 (K.B. 1765), “a case undoubtedly familiar to every American statesman at the time of the Founding,” to hold that the detectives did not have probable cause to make the warrantless intrusion onto Mr. Jardine’s property. “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave.” 2 Wils. K.B., at 291, 95 Eng. Rep., at 817. A police officer is free to walk up to the front door of a residence with the purpose of speaking with its occupants, the Court held, but the same intrusion simply to conduct a “search” was beyond what the Fourth Amendment permits.
As the government finds new and creative ways to intrude upon our privacy, it is comforting to see the Supreme Court drawing appropriate lines in the sand beyond which the government cannot cross.