The New Yorker magazine once had a cartoon showing a
storefront office with the company name on the window: "None of
Your Damn Business Inc." If it were publicly traded, the
corporation's stock would be down this morning.
That's because of Tuesday's ruling by the Supreme Court in a
case barely noticed amid the frenzy of interest in the arguments on
same-sex marriage. The decision looks like a victory for personal
privacy. But the beauty may prove to be skin deep.
The case arose after two Miami-Dade police escorted a
drug-sniffing dog to Joelis Jardines' front porch, where the dog
signaled the presence of narcotics.
They got a warrant to search the house, where they found
marijuana plants. Jardines contended the search violated the Fourth
Amendment ban on unreasonable searches, and the Florida Supreme
Court agreed. By a 5-4 vote, the U.S. Supreme Court upheld that
ruling.
So far, so good. Unless they get a judge to issue a search
warrant, the police may not tromp through your home looking for
cannabis. Nor may they climb a ladder to peek in the window. Using
dogs to detect something that can't be detected by normal human
senses is the equivalent of a physical search.
That should have been a slam dunk. In 2001, the justices ruled
that law enforcement agents are not entitled to use a thermal
imaging device to detect heat emissions from a home—which could
betray the use of high-wattage lamps used to grow pot. The court
said this is no more permissible than it would be to let cops
employ a new technology that can see through walls.
"We think that obtaining by sense-enhancing technology any
information regarding the interior of the home that could not
otherwise have been obtained without physical intrusion into a
constitutionally protected area constitutes a search—at least where
(as here) the technology in question is not in general public use,"
wrote Justice Antonin Scalia. You would think special
sense-enhancing technology with four legs and a wet nose would
likewise trample on privacy.
But for some reason Scalia, who wrote the court's latest opinion
as well, shied away from extending his impeccable logic. Instead,
he said the dog-sniffing was out of line because it involved
trespassing on private property. Once the officers ventured into
the area owned by Jardines without his permission, the Fourth
Amendment limited what they could do.
The trespass rationale worries Christopher Slobogin, who directs
the Criminal Justice Program at Vanderbilt Law School. "If the next
case involves a drug-sniffing dog smelling an apartment that abuts
a public sidewalk, presumably Scalia would say there is no search
because there is no trespass," he says. "But the privacy invasion
of the home would still be just as significant." Plenty of urban
residences are within a few feet of a sidewalk, making them
vulnerable to an accusatory Labrador retriever.
Justice Elena Kagan agreed, in a concurring opinion. In her
view, cops violate privacy rights "when they use trained canine
assistants to reveal within the confines of the home what they
could not otherwise have found there"—even if they do it from a
public way.
Why does it matter? Because dogs are the least of the ways in
which the government will eventually be able to monitor spaces that
once afforded sanctuary to anyone who wants to be left the hell
alone. Last year, the court said police needed a warrant to put a
GPS tracking device on a man's car because they "physically
occupied private property"—the vehicle—"for the purpose of
obtaining information.”
But the day is nigh when the government can use a tiny drone to
follow a car day after day. That would not require a cop to put
hands on someone's personal property. But the information gathered
would be no different. It's hard to see why one would be barred by
the Fourth Amendment and the other would not.
Even Scalia may grasp that. In the GPS case, he acknowledged,
"It may be that achieving the same result through electronic means,
without an accompanying trespass, is an unconstitutional invasion
of privacy." Still: May be?
A person's right to keep others off his property was once a
sturdy protection for privacy. But in an age of intrusive new
surveillance tools, it could leave us all with nowhere to hide.
