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March 26, 2013

Notable coalitions in 5-4 SCOTUS ruling on front-door drug sniffs as searches

Though not concerning matters at the heart of sentencing law and policy, today's lone Supreme Court ruling concerning application of the Fourth Amendment should hearten anyone eager to see five-four split SCOTUS rulings that do not swing only on what Justice Kennedy thinks.  Today's SCOTUS ruling in Florida v. Jardines (available here) concerning whether a dog sniff at a front door is a search had this notable line up of Justices:
SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ALITO,J., filed a dissenting opinion, in which ROBERTS, C.J., and KENNEDY and BREYER, JJ., joined.

From a quick review, I do not see much more that gets me all that excited or interested in Jardines, but maybe hard-core Fourth Amendment fans and/or dog lovers will provide a different view via the comments.

March 26, 2013 at 04:08 PM | Permalink


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My biggest issue with the way the court is going in these cases is that such standards do not translate very well into a digital context. Imagine that a person has encrypted their wifi connection and the police hack that connection to spy on it without a warrant. Is that a "physical intrusion"? I do not see it as such.

On the other hand, the dissent makes not sense whatsoever. In the long run the right to privacy is the better route to go.

Posted by: Daniel | Mar 26, 2013 8:01:30 PM

Personaly i think it's long past time the 4th go back to basics. No Warrant nothing your find comes in!

I think if you do a little research you will find most of the exceptions that started the swiss cheese effect went in a long long long time ago back before both the electronic age and the information age. When it took forever to communicate.

Today that no longer applies in anyway. If a cop of the street needs a damn warrant technologily they can report back and have a warrant in min's...not days.

So no friggin excuse NOT to get one!

Posted by: rodsmith | Mar 26, 2013 11:25:41 PM

I actually think this might end up being an important development. There are several contexts in which courts eschew the obvious meaning of "search" by finding no reasonable expectation of privacy. One potential application I can see is searches of "papers" in the prison context, where many courts have come to the counter-intuitive conclusion that no "search" can occur when government officials rummage through your papers because of the absence of a "reasonable expectation of privacy." Under Jones and Jardines, the text of the constitution may force some reevaluation of these decisions.

Posted by: Eli | Mar 27, 2013 2:59:02 PM

Bad enough 9 lawyers get to decide. With these frequent 5-4 decisions, only one lawyer gets to decide on matters about which he knows nothing save rent seeing.

This is a non-partisan proposal. Change the number of Justices to an even number. A tie vote would let stand the lower court decision.

Posted by: Supremacy Claus | Mar 29, 2013 5:42:41 AM

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