No trespassing

I'm talking to you, officer.

I’m talking to you, officer.

[Update: See update at end of the post.]

Have you given strangers permission to come to the front steps of your house? Have you given a stranger permission to cross onto your property line and walk to the front door of your house? Certainly, none of us have given this explicit permission – we don’t post a sign at the edges of our property that “all are welcome”, but we have implicitly given some people permission to enter without our prior approval: the mailman, the neighbor borrowing sugar, the girls selling cookies, the cops with drug-sniffing dogs.

Wait, what? That’s precisely what happened in Florida v. Jardines [PDF], decided today by the United States Supreme Court and the State of Florida, along with 4 Supreme Court justices, argued that it was quite all right for cops to bring their drug sniffing dogs onto private property without a warrant in an attempt to sniff out illicit activity. Luckily for us and our individual rights, 5 members of the Court disagreed.

The case itself is an easy one to resolve, as both Justice Scalia’s majority opinion and Justice Kagan’s concurring opinion state: there is a physical intrusion onto your property by government agents:

The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

The rest of the opinion is a good recap of some basic principles: what is a curtilage, was the intrusion unlicensed and that this “physical intrusion” test of Fourth Amendment jurisprudence is in addition to the standard “reasonable expectation of privacy” test of the Fourth Amendment.

And this is where, if this were a TV show, you’d hear the oft-used scratched record sound effect meant to imply halting.

Scalia, you will recall, applied the infamous “trespass” test in United States v. Jones (the GPS case)(see related post here). Orin Kerr at Volokh argued subsequently that there was never such a thing [PDF] as a trespass test and it’s strange to note that while the word “trespass” is mentioned in both the concurrence and the dissent in Jardines, it isn’t mentioned once in Scalia’s majority opinion, instead being replaced by “physical intrusion”, which, one could argue, is the same as trespass.

To me – and I’m no Fourth Amendment scholar – the more important opinion in Jardines is the concurrence by Kagan:

Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of privacy? Yes, that as well. The Court today treats this case under a property rubric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests.

She then goes on to write an opinion that is essentially what it would have looked like had it been based on the expectation of privacy under Katz. In essence, she seems to argue that the physical intrusion test and the reasonable expectation of privacy test would often result in the same conclusion:

It is not surprising that in a case involving a search of a home, property concepts and privacy concepts should so align. The law of property “naturally enough influence[s]” our “shared social expectations” of what places should be free from governmental incursions. Georgia v. Randolph, 547 U. S. 103, 111 (2006); see Rakas v. Illinois, 439 U. S. 128, 143, n. 12 (1978). And so the sentiment “my home is my own,” while originating in property law, now also denotes a common understanding—extending even beyond that law’s formal protections—about an especially private sphere. Jardines’ home was his property; it was also his most intimate and familiar space. The analysis proceeding from each of those facts, as today’s decision reveals, runs mostly along the same path.

I think she’s giving Scalia an out here, for the future. A way to salvage his “physical intrusion” test by joining it with the reasonable expectation test, because as Orin notes – and as does Alito’s dissent – there really was no such thing as a “trespass” test.

But even using the term trespass mightn’t be such a bad thing: I think it’s just a different way of framing the same issue. When the government has ‘trespassed’ on our private property or our person or our papers, effects and things, then it is a search.

It is, in a sense, the simplest way to define a search.

The other intriguing question posed by Jardines is to what extent does the Fourth Amendment right extend? What if the officers had used the drug sniffing dog at the edge of Jardines’ property? Would that have been a search? The facts of this case are limited to the porch, which is easily answered as an extension of the house, but what of the back yard? Or the trees that line the front? Or just beyond the welcome mat in an apartment building?

In other words, do we implicitly give permission to police to enter our property for any reason other than our own physical safety? Would it be a workable bright-line rule that any incursion by the police onto one’s property is always a search and thus the onus lies on the State to prove that the search was reasonable or supported by an exception to the warrant requirement?

Update: for more, see this follow-up by Orin Kerr, this post by Paul B. Kennedy and this one by Scott “Don’t call me a hipster” Greenfield.

Image via. License details there.

8 thoughts on “No trespassing

    1. Gideon Post author

      You know, I struggled with including that in the post, but I think most reasonable people would say that the police had permission to enter if, say, a neighbor heard screaming and a gunshot and called them. (If you yourself called police, then you obviously gave them permission to enter your property.)

      1. Fadeway

        If a gunshot was heard, or a neighbor claims to have heard screaming, wouldn’t that count as sufficient cause of suspicion (the same way having drugs in plain sight would justify a search without warrant, if the home owner declines)?

      2. Max Kennerly

        “Get off my lawn” is the American understanding of privacy. IMHO, most people would assume that police/fire/EMTs can enter property without explicit permission to respond to a good faith believe in an exigent circumstance: fire, specific information of a threat, chase of dangerous person, etc.

        One empirical point: at least in my experience, in the suburbs, most mailboxes and garbage collection is literally on the curb, and so the mail carriers and garbage collectors never actually step foot on the property. (The only people who do are the UPS/FedEx people, who deliver packages to the door.) Thus, in normal suburban life, no arguable government agents ever actually enter the property.

  1. Amy

    A related question . . . . I rent an RV space. My motor home is my year-round residence. If someone walks across my space–in front of or in back of the motor home–is he trespassing?


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