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Meanwhile, in other Supreme Court news: The Fourth Amendment is still strong!

In a peculiar voting alignment (peculiar, but not as unusual in Fourth Amendment cases) in Florida v. Jardines, Justice Scalia has written a strong opinion upholding the right to be secure from warrantless searches in the home, joined by Thomas, Ginsburg, Kagan, and Sotomayor.  Alito dissents, joined by Roberts, Breyer, and Kennedy.

The question is whether a visit from the police where they come onto the front porch of a home and have their drug dog sniff constitutes an illegal intrusion prohibited by the Fourth Amendment.  Justice Scalia holds clearly yes, that it is a classic intrusion into the curtilege, that is, the area around the home where the law has always (back to Blackstone, at least) recognized a protection equal to that within the home.  Joining that conclusion, Kagan writes in concurrence that they decision could as well have been resolved on privacy grounds, following that it was an invasion within a zone of expected privacy such as in the case prohibiting use of thermal imaging.  In dissent, Justice Alito contends that there is a presumed license for people (wanted or unwanted) to walk up on the front porch and knock upon one’s door (thus allowing the police to come up, knock on the door, and ask if they can speak to a resident, without violating the Fourth Amendment), and that the police here made no more intrusion than that, albiet with a dog who was going to sniff for the presence of drugs within.  Justice Scalia responds that the license for someone to come knock was never understood to include the right to intrude in the way the dog-sniff intruded.

Scalia writes:

That principle renders this case a straightforward one. The officers were gathering information in an area belong- ing 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 per- mitted by the homeowner.  …

[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental in- trusion.” Silverman v. United States, 365 U. S. 505, 511 (1961). This right would be of little practical value if the State’s agents could stand in a home’s porch or side gar- den and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.  …

We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amend- ment purposes.” Oliver, supra, at 180. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” Hester, supra, at 59, so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.” 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769).

In concurrence, Kagan notes, “The Court today treats this case under a property ru- bric; I write separately to note that I could just as happily have decided it by looking to Jardines’ privacy interests.”

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