Schearer, '16 Runner up in ABA Citizen Amicus Project
Friday, June 21, 2013
Posted by: Joe Libertelli
Congratulations to UDC-DCSL law student Michael Schearer, '16 PT for his second place finish in the ABA Criminal Justice Section’s Citizen
The 2012-2013 Edition Winner was Travis Gunn, of William and Mary and the two Runners Up were Michael Schearer and Rami Hernandez of Boyd University.
Here's Michael's submission:
The question presented
in Florida v. Jardines is whether a
dog sniff at the front door of a suspected grow house by a trained
narcotics detection dog is a Fourth Amendment search requiring probable cause.
Because Franky’s sniff was a sense-enhancing technology not in public use, and
because the police trespassed to obtain information, the dog sniff should be
held to be a search.
The Fourth Amendment
provides in part that "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated…”
Modern Fourth Amendment
jurisprudence is derived from Justice Harlan’s concurrence in Katz v.United
States. There, he articulated a
two part test that would later be adopted by the Courtin Smith v. Maryland. The Fourth Amendment is implicated when
a person has an actual (subjective)expectation of privacy, and when that
expectation is (objectively) reasonable to society.
More recently, the Court
has supplemented the Harlan test with a property –focused approach that
recognizes the connection between private property and a physical intrusion that
would constitute common law trespass. Two recent cases that provide illumination
on this issue are Kyllo v. United States and United States v. Jones.
the Court addressed the role of technologically sophisticated surveillance as
it relates to the Fourth Amendment. The police used a thermal imaging device
to identify heat emanating from the home of a suspected grow house. Despite
the fact that this device was used from a public street, the Court concluded
that"[w]here …the Government uses a device that is not in general public use,
to explore details of the home that would previously have been unknowable
without physical intrusion, the surveillance is a ‘search’ and is
presumptively unreasonable without a warrant.”
The common law
trespassory test was revived in Jones. There, the police placed a
GPS tracking device on Jones’ vehicle to obtain his vehicle location over
the course of 28 days. Writing for the Court, Justice Scalia found that in
placing the GPS device, "[t]he Government
physically occupied private property for the purpose of obtaining information.” This physical intrusion constituted a
"search” and thus implicated the Fourth Amendment.
sniff in Jardines has been compared with Illinoisv. Caballes,where a dog sniff during a traffic
stop was found to not violate the Fourth Amendment. Caballes, in turn,
relied on United States v. Place
and City of Indianapolis v. Edmond.
In Place, the Court found that a dog sniff of luggage did not constitute
a search because it did not require opening the luggage or exposing items that
would otherwise remain hidden from view.
Similarly, in Edmond the Court held that a dog walk around a car was not
intrusive enough to be considered a search.
obvious and common nexus found in Caballes, Place, and Edmonds
is that the alleged searches were done away from the home. Although not at all
consistent in their application,
the Court has undoubtedly indicated that the expectation of privacy in vehicles
is lessened as compared to the home. Similarly, the privacy of the luggage of a
traveler at an airport lessened due to the Government’s interest in protecting
facts in Jardines bring us close to the home, but not quite through
the "firm line at the entrance."
Rather, here the police conducted the dog sniff from Joelis Jardines’ front
porch. Based on the two approaches cited above, two questions arise. First, was
the use of the dog sniff consistent with the sense-enhancing technology employed
by the police in Kyllo; and second, did the dog sniff constitute a
physical trespass upon Jardines’ front porch? Regardless of which approach the
Court decides to take, the answer to both questions is most assuredly yes.
the Katz approach articulated by Harlan and refined in Kyllo, a
trained drug sniff dog is not a device in general public use. But to suggest
that these dogs only alert to contraband, and thus could never implicate Fourth
Amendment protections (because, presumably, a person has no expectation of
privacy in contraband) is a circular argument that did not convince (at least)
three justices during oral arguments. Moreover, the sober evidence discussed by
a number of Fourth Amendment scholars
indicates agreement with Justice Souter’s proclamation in Caballes:" The
infallible dog… is a creature of legal fiction.”
the alleged search never crossed the threshold of Joelis Jardines’ home, the
common law trespassory test requires us to address the issue of curtilage. The
Court articulated a four factor test to define curtilage United States v. Dunn. However, the front porch of a home
generally regarded as exempt from this protection because homeowners impliedly
consent for visitors to come to the door to knock. Additionally, the police
"knock and talk” tactic is a common procedure that does not appear to have
received much recent scrutiny (notwithstanding the Court’s prior holding in
Johnson v. United States). But
these are limited purposes.
presuming the legitimacy of the owner’s implied consent and the validity of the
"knock and talk,” there comes a time when the limited purpose ends and
reasonableness must prevail. A homeowner’s implied consent to visitors on the
front porch only lasts until the homeowner has the opportunity to invite the
visitor in, or on the other hand, turn the visitor away. Similarly, the police
officer’s presence on the front porch can only said to be legitimate until an
otherwise benign purpose disappeared. A police officer stationed on the front
porch for several minutes (without knocking, to be clear), with Franky sniffing
at the door and a supporting cast of law enforcement officials in the immediate
vicinity, cannot said to have been benign.
 U.S. Const. amend. IV.
 389 U.S. 347, 360
(Harlan, J., concurring).
 442 U.S. 735.
 Id.,at 740.
 533 U.S. 27.
 132 S. Ct. 945.
 Kyllo,533 U.S. at
 Jones,132 S. Ct.
 543 U.S. 405.
 462 U.S. 696.
 531 U.S. 32.
 Place,462 U.S. at
 Edmond,531 U.S.
 Seegenerally New York
v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S.
615 (2004); and Arizonav. Gant, 556 U.S. 332 (2009).
 Paytonv. New York,
455 U.S. 573, 590.
 SeeBrief of Amici
Curiae Fourth Amendment Scholars in Support of Respondent, Florida v.
Jardines, No. 11-564.
 Caballes,543 U.S.
at 411 (Souter, J., dissenting).
480 U.S. 294, 301.
333 U.S. 10.