Pubdate: Thu, 28 Mar 2013
Source: Chicago Tribune (IL)
Copyright: 2013 Chicago Tribune Company
Author: Steve Chapman
Page: 23


New Yorker magazine once had a cartoon showing a storefront office 
with the company name on the window: "None of Your Damn Business 
Inc." If it were publicly traded, the corporation's stock would be 
down this morning.

That's because of Tuesday's ruling by the U.S. Supreme Court in a 
case barely noticed amid the frenzy of interest in the arguments on 
same-sex marriage. The decision looks like a victory for personal 
privacy. But the beauty may prove to be skin-deep.

The case arose after two Miami-Dade police officers escorted a 
drug-sniffing dog to Joelis Jardines' front porch, where the dog 
signaled the presence of narcotics.

They got a warrant to search the house, where they found marijuana 
plants. Jardines contended the search violated the Fourth Amendment 
ban on unreasonable searches, and the Florida Supreme Court agreed. 
By a 5-4 vote, the U.S. Supreme Court upheld that ruling.

So far, so good. Unless they get a judge to issue a search warrant, 
the police may not tromp through your home looking for cannabis. Nor 
may they climb a ladder to peek in the window. Using dogs to detect 
something that can't be detected by normal human senses is the 
equivalent of a physical search.

That should have been a slamdunk. 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.

Justice Elena Kagan agreed, in a concurring opinion. In her view, 
cops violate privacy rights "when they use trained canine assistants 
to reveal within the confines of the home what they could not 
otherwise have found there" - even if they do it from a public way.

Why does it matter? Because dogs are the least of the ways in which 
the government will eventually be able to monitor spaces that once 
afforded sanctuary to anyone who wants to be left the hell alone.

Last year, the court said police needed a warrant to put a GPS 
tracking device on a man's car because they "physically occupied 
private property" - the vehicle - "for the purpose of obtaining information."

But the day is nigh when the government can use a tiny drone to 
follow a car day after day. That would not require a cop to put hands 
on someone's personal property. But the information gathered would be 
no different. It's hard to see why one would be barred by the Fourth 
Amendment and the other would not.

Even Scalia may grasp that. In the GPS case, he acknowledged, "It may 
be that achieving the same result through electronic means, without 
an accompanying trespass, is an unconstitutional invasion of 
privacy." Still: May be?

A person's right to keep others off his property was once a sturdy 
protection for privacy. But in an age of intrusive new surveillance 
tools, it could leave us all with nowhere to hide.
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MAP posted-by: Jay Bergstrom