Supreme Court Watch: Sniffs and Seizures and Samples and Sewers

Vol. 36 No. 4


The United States Supreme Court has decided several cases since my last column. Here’s a brief summary of the rulings relevant to state and local governments:

Sniff Up to Snuff

The Court has ruled in the two police-dog sniff cases, Florida v. Jardines, 568 U. S. ____ (Mar. 26, 2013), and Florida v. Harris, 569 U. S. ____ (Feb. 19, 2013). In Harris, the question was whether the “alert” of a trained drug-detection dog during a traffic stop provided probable cause to search the vehicle.1 A police dog, Aldo, was taken to sniff Harris’s truck after Harris was pulled over on a routine stop. Harris appeared nervous, but there was no other reason for a search. After Aldo alerted to the driver’s side door, a search revealed pseudoephedrine and other ingredients used in manufacturing methamphetamine. These were not, however, ingredients Aldo was trained to detect. Harris was arrested and charged with illegal possession of these substances. Later, when Harris was out on bail, Aldo again alerted to the truck’s driver’s side door on a second traffic stop, but no drugs were found.

Harris moved to suppress the evidence on the basis that Aldo’s alert had not given the officer, Wheetley, probable cause for a search, focusing his argument on Aldo’s certification and field performance. Aldo’s certification from a private company (which was not required under Florida law) had expired before Harris was pulled over, and Wheetley acknowledged that he did not keep complete records of Aldo’s performance in traffic stops or other field work, only recording the alerts that resulted in arrests. The Florida Supreme Court ruled that Wheetley lacked probable cause because the fact alone that Aldo had been trained and certified was simply not enough to establish probable cause in the absence of the dog’s field performance records (including the level of unverified alerts).

The Supreme Court, in a unanimous decision, disagreed and reversed. The test for probable cause for a search is not exact or precisely calibrated, and in fact the Court looked not to a “strict evidentiary checklist,” but to the totality of the circumstances and whether they supported a common sense “fair probability” that contraband or evidence of a crime was present. “The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.”2 The court below, by imposing a mandatory field-test record requirement regardless of any other evidence of the dog’s reliability, had used the “antithesis of a totality-of-the-circumstances analysis.”3 In any event, compared to controlled testing situations, field data fell far short of a gold standard with respect to reliability. There was no way to account for false negatives (when a dog failed to alert to the actual presence of drugs), and it likely overstated false positives (situations when a dog alerted to drugs that were present but were too well hidden to be located). Accordingly, evidence of a dog’s satisfactory performance in a certification or training program could provide sufficient reason to trust the dog’s alert, subject to the defendant being able to contest the adequacy of a certification or training program, or the dog’s proficiency in the field.

Aldo’s alert, in the circumstances, was sufficient to ground probable cause because the “substantial” evidence of his training and certification was before the court, as was a record of his performance on weekly exercises. In the words of Justice Sotomayor in her concurring opinion in Jardines (case discussed below), a trained drug detection dog was “to the poodle down the street as high-powered binoculars are to a piece of plain glass.”4 In this case, Harris failed to undermine Aldo’s reliability as established by this evidence.

Sniff Equals Search

In the second dog sniff-probable cause case, police, acting on an unverified tip that Jardines’ house was being used as a “grow-op,” came to investigate.5 After Franky the drug dog alerted to the presence of drugs at the front door, a detective went up to the front door himself and smelled marijuana. The detective also noticed the air conditioner running continuously, which he testified was consistent with unusually warm temperatures inside, possibly caused by grow lights. A subsequent search under a warrant confirmed that marijuana was being grown on the premises. Jardines moved to suppress the evidence on the basis that the dog sniff was a “search” that required probable cause, rendering invalid the warrant based on the information gathered in that search.

In a 5-4 decision, a majority of the Supreme Court ruled the officers’ investigation was a Fourth Amendment search because the officers had physically invaded the home’s curtilage specifically to conduct a search, without an express or implied invitation by the occupant. A police officer was entitled to approach a home and knock on the door (like anyone else), but it was an insupportable stretch to say that this, in turn, permitted a police search. No one was impliedly invited to enter premises or to conduct canine forensics:

introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to dothat.…the background social norms that invite a visitor to the front door do not invite him there to conduct a search.6

The officers learned what they learned only by physically intruding on Jardines’ property to obtain evidence was enough to establish that a search occurred.

Jardines was the first case in which the Court considered a police dog sniff outside the context of a public or semi-public place (previous decisions had addressed, for example, an airport, a vehicle on a public roadway, and a parcel in transit). As it did in last year’s GPS and Fourth Amendment decision, United States v. Jones, 565 U. S. ____ (2012),7 the Court referred to the Fourth Amendment’s fundamental property-rights baseline, and used the physical intrusion on a constitutionally protected area and “the traditional property-based understanding of the Fourth Amendment” as its touchstone. The government’s use of trained police dogs to trespass onto property to investigate a home and its immediate surroundings was, then, a “search” within the meaning of the Fourth Amendment.

“Immediate Vicinity”

In another home search case, the Court ruled, in Bailey v. United States, 568 U. S. ____ (Feb. 19, 2013),8 that police could not, as incident to a search of a home, apprehend and detain the home’s occupant, located a mile away. Justice Kennedy, writing for the 6-3 majority, stated that the “categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched.”9

Police officers conducting surveillance of, and preparing to execute a search warrant at, a basement apartment saw two men, including Bailey (aka “Polo”), exit the apartment, get into a car and drive off. The car was stopped about a mile away, and the occupants were searched and questioned. Bailey said he was coming from his home and named the apartment, but when he was told a search warrant was being executed at that location he denied living there, adding “anything you find there ain’t mine.”10 In fact, a gun and illegal drugs were found on the premises, and Bailey’s set of keys unlocked the door. When he was arrested, Bailey moved to suppress the statements and the evidence, arguing they were derived from an illegal seizure. On the issue of whether the seizure was reasonable when he was stopped and detained some distance away from the premises searched, and the only justification for the detention was to ensure the safety and efficacy of the search, the court below held that Bailey’s detention was permissible under Michigan v. Summers, 452 U. S. 692 (1981), as a detention incident to the execution of a search warrant, because Bailey had been detained as soon as “reasonably practicable.” (The district court found it was also lawful as an investigatory detention supported by reasonable suspicion under Terry v. Ohio, 392 U. S. 1 (1968).)

A majority of the Supreme Court, however, declined to stretch Summers quite so far. Once an individual had left the immediate vicinity of a premises to be searched, the detention had to be justified by some other rationale. Summers allowed the detention of occupants in or around premises without probable cause to arrest for a crime if police officers were executing a search warrant, based on three legitimate law enforcement objectives: officer safety, facilitating the unimpeded completion of the search, and preventing the flight of suspects in the event incriminating evidence was found. None of these justified Bailey’s detention a mile away from the scene of the search. Bailey had left the scene without knowledge of the impending search and posed no apparent risk to the officers, and the interest in preventing his escape “[did] not independently justify detention of an occupant beyond the immediate vicinity of the premises to be searched.”11 Moreover, “[a]ny of the individual interests [was] also insufficient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search.”12 Detaining an occupant already at home was only an incremental intrusion on personal liberty when it occurred incident to a properly authorized search; the same could not be said for a public detention, away from home, and usually compelled transfer back to the searched premises. This was much more intrusive and likely to “resemble a full-fledged arrest.”13

The Court, however, left it for another day and a closer case to decide what exactly came within the term “immediate vicinity,” although a number of factors could be relevant, including “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location,” and other factors.14 The question whether stopping Bailey was lawful under Terry v. Ohio as supported by reasonable suspicion remained open on remand.

“Inherently Evanescent” But Not Exigent

The Court, in Missouri v. McNeely, 569 U. S. ____ (Apr. 17, 2013), addressed whether a police officer was entitled to obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement, based on the natural dissipation of alcohol in the bloodstream.15 A divided Court held that the natural metabolization of alcohol in the bloodstream, on its own, did not present a per se exigency that justified an exception to the Fourth Amendment’s warrant requirement. The Court ruled that, consistent with general Fourth Amendment principles, exigency in this context had to be determined case by case, based on the totality of the circumstances. Justice Sotomayor delivered the opinion of the majority, joined by Justices Scalia, Kennedy, Ginsburg, and Kagan.

McNeely was pulled over after an officer noticed his truck speeding and weaving. McNeely smelled of alcohol, had bloodshot eyes and slurred speech, and admitted he had “a couple” of beers. He performed poorly on field sobriety tests and repeatedly declined to use a portable breath-test device to measure his blood-alcohol concentration (BAC). He was arrested and taken to a nearby hospital, where he was asked to consent to a blood sample. He refused, and the officer ordered a technician to take a sample. The officer testified that he made no effort to obtain a warrant even though a prosecutor and magistrate were readily available. The sample, taken almost half an hour after McNeely was pulled over, was tested and found to contain a BAC of 0.154 percent, well above the legal limit of 0.08 percent. McNeely was charged with drunk driving and moved to suppress the evidence on the basis that taking his blood for analysis without first obtaining a search warrant violated his Fourth Amendment rights. The state relied on Schmerber v. California, 384 U. S. 757, 770 (1966) (warrantless blood test of an individual arrested for DUI upheld because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence”).

Although it is true that an individual’s BAC begins to decline soon after he or she stops drinking and that a significant delay in testing (such as the time taken to secure a warrant) would negatively affect the probative value of test results, it did not follow that the Court should abandon a case-by-case assessment of exigency and adopt the categorical rule proposed by the state. The Court stated that “blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a ‘now or never’ situation.”16 Blood alcohol levels dissipated relatively slowly and in a predictable manner, telecommunication innovations had eliminated much of the delay from the warrant-application process, and the need for a trained technician to do the blood draw made some delay inevitable (e.g., the time needed to take the suspect to a hospital).

[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. . . . While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.17

No Change, No Discharge

Los Angeles County Flood Control District v. Natural Resources Defense Council, 568 U. S. ____ (Jan. 08, 2013), was a Clean Water Act case involving a claim that the Los Angeles County Flood Control District was discharging polluted stormwater into navigable waters through runoff in its municipal sewer-stormwater system, in violation of its National Pollutant Discharge Elimination System (NPDES) permit and the Act.18 This runoff flowed through monitoring stations for the Los Angeles and San Gabriel Rivers, located in concrete channels constructed for flood-control purposes, then through the same rivers before eventually reaching the Pacific Ocean. The water quality exceeded permissible levels under the permit, but the evidence was that numerous entities other than the District had made discharges into the river upstream of the monitoring stations.

The Ninth Circuit had ruled that the District was liable for the discharge of pollutants that occurred when the polluted stormwater (detected at the monitoring stations) flowed out of the concrete-lined portions of the rivers into lower, unlined portions of the same rivers, because the District exercised control over the concrete-lined channels. The question before the Supreme Court was whether this flow, from one part of a river into another, was a “discharge” from an “outfall” under the Clean Water Act, given the Court’s holding in South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 105 (2004), that a transfer of water within a single body of water could not constitute a “discharge” for purposes of the Act.

By a vote of 9-0, in an opinion by Justice Ginsburg (Justice Alito concurring in the judgment only), the Supreme Court reversed and remanded the case. Guided by its earlier holding inMiccosukee, the Court noted that a “discharge” of a pollutant was defined as the “addition” of any pollutant to navigable waters (33 U.S.C. § 1362(12)). But, “[a]s the Second Circuit [aptly] put it . . . , ‘[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not “added” soup or anything else to the pot.’”19 Accordingly, the “flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway did not qualify as a discharge of pollutants” under the Clean Water Act, and the District was not liable.20

“Information Asymmetry”

A state does not violate the constitutional rights of noncitizens when it limits access to state records to the citizens of that state. Virginia’s Freedom of Information Act, Va. Code Ann. § 2.2-3700 et seq., allows for open inspection of public records by “citizens of the Commonwealth” but granted no equivalent rights to noncitizens. (Several other states have enacted similar freedom of information laws that restrict access only to their citizens; a list is available as part of the Court’s ruling).

Under this statute, residents of two other states sought to obtain Virginia documentation. First, McBurney wanted to find the reason for Virginia’s delay in enforcing child-support obligations respecting his child, and second, Hurlburt applied to get property-tax records for his clients as part of his business in California. Both requests were denied on the basis that the person seeking the information was not a Virginia citizen. They filed suit under 42 U.S.C. § 1983, seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause and, in Hurlbert’s case, the dormant Commerce Clause. The Fourth Circuit affirmed a district court ruling granting Virginia’s motion for summary judgment. In the meantime, the Third Circuit held that the “citizen-only” feature of Delaware’s freedom of information law violated the Privileges and Immunities Clause.

The Supreme Court, in McBurney v. Young, 569 U. S. ____ (Apr. 29, 2013), affirmed. Justice Alito delivered the opinion for a unanimous Court (Justice Thomas filed a concurring opinion).21 The objective of the Virginia law, as determined by the Supreme Court, was to give citizens a way in which they could obtain an accounting from public officials to whom the exercise of state power was delegated, and the provision limiting the use of the statute to citizens only recognized that Virginia taxpayers “paid the bill” for the costs of record-keeping in the state.22 The Privileges and Immunities Clause protected only “fundamental” privileges and immunities, and in no way barred the state from using citizenship to distinguish between persons, nor was a state required to always provide services equally to residents and nonresidents. Regarding the four “fundamental” privileges or immunities argued by the petitioners—the opportunity to pursue a common calling, the ability to own and transfer property, access to the Virginia courts, and access to public information—the first three were not abridged by the Virginia statute and the fourth, as framed, was not protected by the Privileges and Immunities Clause. There simply was “no constitutional right to obtain all the information provided by FOIA laws.”23 In the case of the real estate records sought by Hurlburt, the Court noted that these records were generally available as online information, “[r]equiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden on noncitizens . . . .”24

The dormant Commerce Clause argument focused on whether the restriction or statute interfered with the natural functioning of the interstate market or the flow of goods. Here, “Virginia’s FOIA law neither ‘regulates’ nor ‘burdens’ interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all.”25 Given the objectives underlying the statute, the distinction made between citizens and noncitizens had “a distinctly nonprotectionist aim.”26 Even under a most generous interpretation, insofar as a “market” for public documents existed in the state, it was a market for a product that the state itself created and of which the state was the only manufacturer. This government function, even if economically “protectionist” in a very loose sense, was not susceptible to dormant Commerce Clause analysis because the function of the state was to serve its citizens.27

Stay Tuned

As of the end of April, several important cases are as yet undecided: Fisher v. University of Texas at AustinKoontz v. St. Johns River Water Management DistrictCity of Arlington v. FCCShelby County v. Holder, and Maryland v. King (a case Justice Alito called “perhaps the most important criminal procedure case that this Court has heard in decades”). I’ll be following these decisions as they are released, so watch this space.


1. Florida v. Harris, 133 S. Ct. 1050 (2013).

2. Id. at 1053.

3. Id. at 1056.

4. Florida v. Jardines, 133 S. Ct. 1409, 1418 (2013) (Kagan, J. concurring).

5. See Florida v. Jardines, 133 S. Ct. 1409 (2013).

6. Id. at 1416.

7. United States v. Jones, 132 S. Ct. 945 (2012)(where the court rules that government agents’ installation of a GPS monitoring device on defendant’s vehicle was a search.).

8. Bailey v. United States, 133 S. Ct. 1031 (2013).

9. Id. at 1040.

10. Id.

11. Id. at 1041.

12. Id.

13. Id.

14. Id. at 1042.

15. Missouri v. McNeely, 133 S. Ct. 1552 (2013) (The state sought a per se rule here and did not argue that there were exigent circumstances in this particular case.).

16. Id. at 1561.

17. Id. at 1555, 1564.

18. Los Angeles County Flood Control District v. Natural Resources Defense Council, 133 S. Ct. 710 (2013).

19. Id. at 713 (citing Miccosukee, 541 U. S. at 109–10).

20. Id.

21. McBurney v. Young, 133 S. Ct. 1709 (2013).

22. Id. at 1716.

23. Id. at 1718.

24. Id. at 1717.

25. Id. at 1720.

26. Id. at 1717.

27. Id. at 1720 (citing Reeves, Inc. v. Stake, 447 U.S. 429, 442 (1980)).


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