N.D.Ind.: Dog sniff on porch violated privacy interests under Jones

GPS was used to follow defendant to his home and then a dog sniff on the front porch violated his privacy rights under the Fourth Amendment. United States v. Peter, 2012 U.S. Dist. LEXIS 72485 (N.D. Ind. May 24, 2012):

While the precedent clearly teaches that a canine sniff-whether of a suitcase, an automobile, or a residence-is not itself a search within the meaning of the Fourth Amendment and therefore does not require any independent justification, the overall police action is still subject to constitutional constraints. Thus, in Place, although the dog sniff of the defendant’s luggage did not constitute an unlawful search, the 90-minute detention of that luggage “went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics.” 462 U.S. at 710. In Caballes, the Court “accept[ed] the state court’s conclusion that the duration of the stop … was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop,” and held that the dog sniff did not transform the otherwise lawful traffic stop into an unlawful search. 543 U.S. at 408. And in Indianapolis v. Edmond, 531 U.S. 32 (2000), although the use of a drug-detection dog at drug interdiction checkpoints was not a search, the checkpoint program itself was unconstitutional because it was justified neither by road-safety concerns nor individualized suspicion. Similarly, in Brock, the Seventh Circuit reiterated that dog sniffs that detected only contraband were insignificant for Fourth Amendment purposes but stressed that “critical to our holding that the dog sniff in this case was not a Fourth Amendment search is the fact that police were lawfully present inside the common areas of the residence with the consent of Brock’s roommate.” 417 F.3d at 697.

In this case, Peter’s front porch was unquestionably his private property, and the police came onto that property without express consent or a search warrant. As noted above, before the Supreme Court’s recent decision in Jones, this fact would simply have been one factor among many relevant to determining whether the police action infringed the reasonable expectation of privacy protected by the Fourth Amendment. Although the origins of Fourth Amendment jurisprudence lie in the law of trespass, and at one time its protections were thought to limit only searches of tangible property, the Supreme Court long ago rejected “the premise that property interests control the right of the Government to search and seize” and has developed a more expansive protection for a person’s “reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 352-53 (1967). Following Katz, the prevailing assumption of the courts was that the new privacy-based formulation replaced the older property-based one, such that “privacy [came] not merely to supplement but to eclipse property as the interest protected by the Fourth Amendment.” United States v. Redmon, 138 F.3d 1109, 1131 (7th Cir. 1998) (Posner, J., dissenting) (collecting cases). While property rights remained a relevant, even important, consideration in determining Fourth Amendment rights, property’s role was “relegated to that of furnishing evidence of the reasonableness of a defendant’s expectation of privacy.” Id.

Whatever basis that assumption had, however, it did not survive the holding in Jones that the Katz reasonable expectation-of-privacy test supplemented, but did not replace, the older understanding that the Fourth Amendment “embod[ies] a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” Jones, 132 S.Ct. at 950. …