Yesterday the Supreme Court issued its opinion in Florida v. Jardines, its second case this term about how the police can use trained dogs to search for contraband. I found the decision interesting for a number of reasons, not the least of which is the unconventional configuration of the majority opinion, which teams Justices Thomas and Scalia with Sotomayor, Kagan, and Ginsberg.
Below are some initial thoughts about the case, specifically, its implications for the rule against inquiring into police intent. I’ll probably post more about the Court’s “implied license” argument—and specifically, its implications for the much maligned third party doctrine—in the coming days.
Facts and holding
The State of Florida filed charges of marijuana trafficking against Mr. Jardines after police used a drug dog to find marijuana plants inside his home. Here are the facts as described in the syllabus:
Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis.
Jardines challenged the search and the Supreme Court held in his favor, finding that the police officer’s conduct violated the Fourth Amendment. As Kevin Russel of scotusblog eloquently explains, the Court’s rationale hinged on accepted rules governing when and why a member of the public can walk onto a homeowner’s property:
While the public, including the police, generally have license to approach a house’s front door (for example, to leave a flier or ask the occupant to answer a question), that license does not include an invitation to bring a dog onto the porch to search for drugs. If a member of the public did that, Justice Scalia observed, it would “inspire most of us to – well, call the police.”
While the Court’s holding seems straightforward enough, it is in tension with previous Supreme Court cases regarding the relevance of officer intent to the Fourth Amendment analysis.
Is a police officer’s purpose or intent relevant to the Fourth Amendment analysis after Jardines?
It is black letter law that a police officer’s “[s]ubjective intent,” however improper, “does not make otherwise lawful conduct illegal or unconstitutional.” The rule was established by the Supreme Court in Whren v. United States—and in practice, it makes it exceedingly difficult to bring a successful Fourth Amendment challenge to a stop or an arrest based on allegations of racial profiling or other improper motives.
The key language in the majority’s opinion in Jardines, which requires an inquiry into the “purpose” of an intrusion onto private property as part of the Fourth Amendment analysis, seems to be in tension with Whren’s no-purpose rule.
Here’s a relevant passage from Jardines:
A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license [to enter the home] is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.
In other words, the officer was free to walk onto Jardines’ porch with the right purpose—say, if all he wanted was to ask Jardines a few questions—but the Fourth Amendment made it unconstitutional for the officer to walk onto Jardines’ porch with the intent to use his dog to search for drugs (without a warrant).
This holding is difficult to reconcile with the holding from Whren, that “[s]ubjective intent does not make otherwise lawful conduct illegal or unconstitutional.” The government’s brief argued as much, but the Court denied the inconsistency:
The State points to our decisions holding that the subjective intent of the officer is irrelevant. See Ashcroft v. al-Kidd, 563 U. S. ___ (2011); Whren v. United States, 517 U. S. 806 (1996). But those cases merely hold that a stop or search that is objectively reasonable is not vitiated by the fact that the officer’s real reason for making the stop or search has nothing to do with the validating reason …
Here, however, the question before the court is precisely whether the officer’s conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.
The Court’s attempt at distinguishing Whren is, to me, unpersuasive. The Court asserts that officer intent matters when intent goes to the reasonableness of a search, as in Jardines, but not when intent is not relevant to the reasonableness of the search, as in Whren.
But that begs the question. The very issue the Court was asked to answer in Whren—and the government argued, the Court should answer in Jardines—is whether and when intent should be relevant to the reasonableness of a search. The Court’s determination that intent was relevant in one case (Jardines) and not in the other (Whren) seems little more than ipse dixit.
Putting aside the Court’s reasoning, the bottom line is that the police officer’s actions were unconstitutional in Jardines precisely because his purpose was to search the home, implying that those same actions may have been constitutional if the officer had a different purpose. (To be fair, this is not completely novel in the context of searches of the home, but more on this in my next post.)
In other words, the Supreme Court—first in Jones and now in Jardines—has been willing to make police intent or purpose (at least when that purpose is undisputed) relevant to the Fourth Amendment analysis in some cases: specifically, in cases where the reasonableness of the search depends on the scope of a “license” to enter a constitutionally protected area.
In my next post, I’d like to explore whether the court’s “implied license” argument has any implications for the much-maligned third party doctrine. Implied and express licenses arguably govern a great swath of information that we store in “the cloud”—from email to Facebook messages to Dropbox files. If (and this is, admittedly, a big “if”) the scope of those licenses is relevant to whether, and for what purpose, a police officer or government official can request cloud data, then we may be in for a rethinking of some of the Court’s seminal Fourth Amendment jurisprudence. But more on that later.
 Note that the Court here talks about the officer’s “purpose,” while the Court in Whren was concerned with the officer’s “intent.” While there may be a colorable distinction between “purpose” and “intent” in this context, I’m not sure the distinction is relevant or that it would survive scrutiny.