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According to Black’s Legal Dictionary, probable cause is defined as; “a reasonable ground to suspect that a person has committed or is committing a crime…more than a bare suspicion but less than evidence that would justify a conviction [it] must be shown before an arrest warrant or search warrant may be issued.”
The part of that definition that is important is ‘which amounts to more than a bare suspicion,’ which basically means a police officer merely thinking you are doing something illegal is not grounds for a probable cause search.
“A police officer merely thinking you are doing something illegal is not grounds for a probable cause search.”
This understanding of probable cause has been in place, more or less, since 1964 when a man named William Beck, a suspected criminal, was stopped by police in his vehicle because he was suspected of partaking in criminal activity.
Beck was placed under arrest, the police officers searched his vehicle without consent or probable cause, and the officers found nothing in the search. Yet, the man was still taken into police custody, where police searched his person and found some clearinghouse slips (a ticket representing an interest in a scheme) under the “sock of his leg.” He was charged with violating Ohio Revised Code, §2915.111 by having a slip or ticket in his possession that represents his interest in a scheme.
He attempted to get the court to suppress the admission of the clearinghouse slips into evidence since it was obtained during an illegal search. He was arrested with only a bare suspicion and no probable cause, the police officer even testified that he had only “heard reports” from “someone” about Beck’s alleged illegal activity.
In the last paragraph of the Supreme Court Certiorari (a written document that reverses the decision of a lower court) written by Justice Potter Stewart, an Eisenhower-era Associate Supreme Court Justice and fierce advocate of the Fourth Amendment said; “We may assume the officers acted in good faith in arresting the petitioner. But ‘good faith on the part of the arresting officers is not enough.’
If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.” 1964 was nearly 50 years ago and we, as a country, are still defining the Fourth Amendment and the protections and rights it affords to American citizens.
In March 2013, a case was brought before the Supreme Court for consideration regarding whether or not the use of a drug-sniffing dog on a homeowner’s property to investigate the contents within the home, without a warrant, was a search within the definition of the Fourth Amendment.
Justice Scalia, a conservative Justice appointed by Ronald Reagan, gave the opinion of the Supreme Court.
Scalia is known to uphold literal meanings of the constitution and does not believe the constitution should evolve over time and it should be interpreted the way it was intended to be interpreted at the time of ratification. Scalia even goes as far to say he would have voted against Plessy v. Ferguson, so that racial segregation was upheld since that was the way it was intended to be interpreted when the Amendment was ratified.
Although Scalia has his faults, in my opinion, especially recently with his views on the Defense of Marriage Act (DOMA), he is a fierce interpreter of a literal meaning of the Fourth Amendment and the protections it affords.
A little backstory; in 2006 police officers in Florida, the only state to boast its very own Drug Czar and where less than an ounce of marijuana is a felony, were acting on a tip that a man named Joelis Jardines was growing marijuana in his home in Miami-Dade county. A detective, a K9 handler, and a trained drug-sniffing dog – trained to detect the scent of marijuana, cocaine, heroin and several other drugs, arrived at Jardines’ home one afternoon. The police officers and the K9 approached the front door of Jardines’ home, stood on the front porch, and importantly, did not knock on the door. The K9 alerted his handler, through behavioral changes that the handler is trained to recognize, that he sensed one of the scents he was trained to detect.
Based on this alert from the K9, the detective applied for and was granted a search warrant to enter Jardines’ home. The home was searched later that same afternoon, revealing marijuana plants, Jardines was arrested and charged with trafficking cannabis. At trial, Jardines moved to suppress the marijuana plants as evidence on the grounds that the use of a drug-sniffing dog on his property was an unreasonable search under the definition of the Fourth Amendment. This argument was eventually escalated to be heard before the Supreme Court of the United States. They found this argument to be simple and straightforward and that information had been gathered by officers physically intruding in an area protected by the Fourth Amendment.
Since the search took place in a constitutionally protected area, the court had to decide whether or not that search took place with unlicensed physical intrusion.
Because the officers had their feet and the feet of the K9 firmly planted on the property, a clear physical intrusion, the only remaining question was; had Jardines given permission for the officers and the K9 to stand on his porch? Jardines had not given such permission.
In 1951 the Supreme Court defined the license a person has to enter onto another person’s property, the license may be either direct or implied. They decided that an implied license to enter onto another person’s property permits the person to “approach the front path, knock promptly, wait briefly to be received, and then (absent invitation to stay longer) leave.”
The Supreme Court gets a little cheeky when this issue is brought up in the case against Jardines, Scalia wrote; “Complying with the terms of that traditional invitation [to knock, and then leave if not asked to enter] does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” Although this is a humorous point, Scalia is highlighting the concept of knocking on someone’s door and then leaving if nobody answers, is an elementary concept easily grasped by grade-school aged children.
“A police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do.” Kentucky v. King, 563 U.S , (2011) (slip op., at 16)
In the case of Jardines, the officers did not knock, and instead walked around the property with the sole intent of gathering evidence, using a highly trained instrument that is not in general public use, the K9, to obtain such evidence. Therefore, the officers did indeed conduct a search, they learned what they learned only by physically intruding on Jardines’ property with the sole intent to gather evidence to obtain the search warrant, violating Jardines’ Fourth Amendment right to retreat into his home and be free from unreasonable governmental intrusion.
One other important fact the court highlighted, and I mentioned briefly above, was the instrument the officers used to gather evidence, the K9, was a super-sensitive instrument that was not in general public use. Even if the officers had license or had been given an invitation to approach the door and knock, they most certainly did not have license or invitation to approach the door with a highly sensitive instrument that was used to detect illegal activity, that would make any citizen, law-abiding or not, very weary.
Unless police officers have a warrant, they are required to act just as any normal citizen would act, and if someone saw a normal citizen on their property, patrolling their German Shepherd around without asking permission, that would “inspire most of us to, well, call the police,” Scalia said in the ruling.
“Unless police officers have a warrant, they are required to act just as any normal citizen would act.”
Private citizens do not approach their neighbor’s property without permission with a $20,000 piece of highly sensitive equipment, and the police officers should not have approached the property under those circumstances without permission either, in this case they were not acting as any private citizen might.
The Supreme Court Justices that dissented argued that officers are allowed to walk up to the front door of a house and that whatever they see, smell, or hear can be used as probable cause evidence to obtain a search warrant. They also dissented that dogs have been domesticated for thousands of years and that any private citizen could go up to the front porch of a homeowner, with his or her dog, and still be within the explicit or implicit license to approach the door, and in this case the police had done no more than what a private citizen would do.
Of course a neighbor may approach your door with his or her dog, but the K9 in question is “not your neighbor’s pet, come to your porch on a leisurely stroll. As this Court discussed this Term, drug-detection dogs are highly trained tools of law enforcement [according to Nationalpolicedogfoundation.org a typical drug-detection dog can cost $8,000.00 to purchase and another $12,000.00 to train], geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners…. They are to the poodle down the street as high-powered binoculars are to a piece of plain glass.”
A search occurred in this case for several clear reasons; the police officers were not within any explicit or implied license to approach the property since their intent was to conduct a search to gather evidence to obtain a search warrant, and because the instrument which they used to conduct the search was a highly sensitive piece of equipment (regardless of whether it is animal, mineral, old, new, high-tech, low-tech, etc.) that was not in general public use.
All of these circumstances combined certainly amount to a search within the definition of the Fourth Amendment. The home and surrounding areas are second-to-none when it comes to being afforded protections under the Fourth Amendment, and I for one am quite relieved to have a more clear definition of what it means to be able to enjoy the right to retreat into my home without fear of unreasonable governmental intrusion, a right I will be enjoying fully.