The Stanford Law Review Online has just published an Essay by Jane Yakowitz Bambauer entitled How the War on Drugs Distorts Privacy Law. Professor Yakowitz analyzes the opportunity the Supreme Court has to rewrite certain privacy standards in Florida v. Jardines:
The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.
Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,” a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches.