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Opening Arguments

Big dog on the porch

Unbelievably, the Supreme Court has been considering other issues besides gay marriage. In a apparent victory for privacy rights, it ruled this week that using a trained dog to sniff for drugs on the porch of a home constitutes a seach and if it's done without a warrant it violates the Fourth Amendment prohibition again unsreasonable searches. I say "apparent," because some legal analysts are unhappy with how narrowly the case was decided:

That should have been a slam dunk. In 2001, the justices ruled that law enforcement agents are not entitled to use a thermal imaging device to detect heat emissions from a home -- which could betray the use of high-wattage lamps used to grow pot. The court said this is no more permissible than it would be to let cops employ a new technology that can see through walls.

"We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search -- at least where (as here) the technology in question is not in general public use," wrote Justice Antonin Scalia. You would think special sense-enhancing technology with four legs and a wet nose would likewise trample on privacy.

But for some reason Scalia, who wrote the court's latest opinion as well, shied away from extending his impeccable logic. Instead, he said the dog-sniffing was out of line because it involved trespassing on private property. Once the officers ventured into the area owned by Jardines without his permission, the Fourth Amendment limited what they could do.

The trespass rationale worries Christopher Slobogin, who directs the Criminal Justice Program at Vanderbilt Law School. "If the next case involves a drug-sniffing dog smelling an apartment that abuts a public sidewalk, presumably Scalia would say there is no search because there is no trespass," he says. "But the privacy invasion of the home would still be just as significant." Plenty of urban residences are within a few feet of a sidewalk, making them vulnerable to an accusatory Labrador retriever.

This kind of case is going to keep coming up, time and time again. As the linked commentary notes, what once constituted a search was pretty straightforward and commonly understood. But increasingly sophisticated (and sneaky) means of getting at us are available, and governments will not refrain from using them. (Just wait till they start making extensive domestic use of drones.) And, unfortunatley, our new ventures into social media have eroded many Americans' whole concept of privacy.