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Schearer, '16 Runner up in ABA Citizen Amicus Project

Friday, June 21, 2013   (0 Comments)
Posted by: Joe Libertelli
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Congratulations to UDC-DCSL law student Michael Schearer, '16 PT for his second place finish in the ABA Criminal Justice Section’s Citizen Amicus Project!  

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…”[1]

Modern Fourth Amendment jurisprudence is derived from Justice Harlan’s concurrence in Katz v.United States.[2] There, he articulated a two part test that would later be adopted by the Courtin Smith v. Maryland.[3] The Fourth Amendment is implicated when a person has an actual (subjective)expectation of privacy, and when that expectation is (objectively) reasonable to society.[4]

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[5] and United States v. Jones.[6]

In Kyllo, 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.”[7]

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.”[8] This physical intrusion constituted a "search” and thus implicated the Fourth Amendment.[9]

The dog sniff in Jardines has been compared with Illinoisv. Caballes[10],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[11] and City of Indianapolis v. Edmond.[12] 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.[13] Similarly, in Edmond the Court held that a dog walk around a car was not intrusive enough to be considered a search.[14]

The 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[15], 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 air travelers.

 The facts in Jardines bring us close to the home, but not quite through the "firm line at the entrance."[16] 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.

Using 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[17] indicates agreement with Justice Souter’s proclamation in Caballes:" The infallible dog… is a creature of legal fiction.”[18]

 Because 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.[19] 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[20]). But these are limited purposes.

Even 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. 


[1] U.S. Const. amend. IV.

[2] 389 U.S. 347, 360 (Harlan, J., concurring).

[3] 442 U.S. 735.

[4] Id.,at 740.

[5] 533 U.S. 27.

[6] 132 S. Ct. 945.

[7] Kyllo,533 U.S. at 32.

[8] Jones,132 S. Ct. at 949.

[9] Id.

[10] 543 U.S. 405.

[11] 462 U.S. 696.

[12] 531 U.S. 32.

[13] Place,462 U.S. at 707.

[14] Edmond,531 U.S. at 40.

[15] 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).

[16] Paytonv. New York, 455 U.S. 573, 590.

[17] SeeBrief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, Florida v. Jardines, No. 11-564.

[18] Caballes,543 U.S. at 411 (Souter, J., dissenting).

[19]480 U.S. 294, 301.

[20]333 U.S. 10.

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