The Supreme Court just handed down its decision in Florida v. Jardines, affirming by a 5-4 vote the Florida Supreme Court's ruling that the police use of a trained narcotics detection dog on the front porch of a home is a "search" within the meaning of the Fourth Amendment. This case is the first time the Court has applied the non-Katz based search doctrine articulated in United States v. Jones (2012). According to Jones, Katz's reasonable-expectation-of-privacy (REOP) standard supplemented but did not replace the trespass test use by the Court for decades prior. In Jones, five members of the Court saw the police's placement of a GPS device on the defendant's car as a governmental trespass on private property constituting a Fourth Amendment search.
It is quite clear that in Jardines, Justice Scalia relied on the non-REOP, trespass-based rule that we might say was "revived" in Jones. Ok, so then why didn't he use the word "trespass" even once in his majority opinion? Instead, Justice Scalia conspicuously referred to the Jones test as holding that "when the Government obtains information by physically intruding" on persons, houses, papers or effects, a search has occurred.
In my view, the "trespass" test articulated in Jones and the "physical intrusion" application in Jardines are identical. I suspect that the majority did not want to intrude upon the Florida courts' handling of the trespass issue under state law. As the dissent in the Florida Supreme Court decision points out, it was undisputed that the police were lawfully present at Jardines' front door. Rather than suppressing the evidence based on the trespass rationale, then, the Florida Supreme Court had found a violation of the more traditional Katz/REOP test. It decidedly did not find a trespass, and let stand the Florida Court of Appeals ruling that the police were lawfully present at the defendant's front door.
Thus, in order for the U.S. Supreme Court to affirm the finding of a "search," I think it had three options: 1) affirm on the REOP rationale, 2) vacate on the REOP determination and remand to to the state courts for consideration in light of Jones and the trespass rationale (decided after the Florida Supreme Court decided Jardines), or 3) find a search based on the Jones trespass test and commit a blunder of judicial federalism.
Option 1) would seem the easiest, and it's what I thought the Court was poised to do. However, the majority turned out to be much more eager to apply the "new" Jones rationale instead of traditional REOP doctrine. Maybe that was a function of Justice Scalia being the oldest justice in the majority and assigning the opinion to himself. Option 2) would be unsatisfactory, since it would leave the ultimate disposition of an important Fourth Amendment issue (dog sniffs as searches) unresolved during more litigation, and more cynically, would not guarantee the result the U.S. Supreme Court wanted. Option 3) would be an intrusion into the normal workings of the state courts, since it would involve the U.S. Supreme Court resolving a basic question of state tort law which was settled below in the state courts. Something just feels wrong about the Supreme Court re-visiting (and reversing) a question of state trespass law, which lies at the heart of state court bread-and-butter.
Now comes option 4). The Court could resolve the case on the new Jones rationale without saying it was actually finding a "trespass" in order not to offend sensibilities of judicial federalism. Surely this is just my own suspicion, but I believe that the posture of the case, coming to the Court without a finding of a state trespass below, greatly affected how the Fourth Amendment dog sniff question could be resolved. I fear there is something intellectually dishonest about finding what amounts to a trespass under state law without saying so, as I see no explanation in the majority opinion of how the Jones "trespass" test differs from the Jardines "physical intrusion" rationale. Nor have I ever heard of a federal common law of trespass. Instead, I see a second-guessing of the Florida Court of Appeals' decision that no trespass occurred.
At bottom, the Court reaffirmed the sanctity of the home in the eyes of the Fourth Amendment, but it did so in a roundabout way. The result is that the state of the Jones "trespass" test is in flux and will spawn more litigation over whether there must be a finding of a state law trespass in order to rely upon that branch of Fourth Amendment search doctrine.
*J.D. Candidate, New York University School of Law, 2013