A Stitch in Haste

The Supreme Court unanimously upheld a decision that Individual Retirement Accounts qualify for the bankruptcy protection generally available to other retirement assets such as pensions.

Um, duh. It's an Individual Retirement Account. The issue seemed to be whether, because a person can withdraw funds from an IRA — with a 10% penalty — that somehow disqualified the accounts. Um, duh.

To the extent that one supports the "retirement shield" rule, this one was a no-brainer.

Also, the Court denied certiorari to an appeal from Texas concerning dog sniffs.

After the dog was walked up Mr. Smith's driveway and signaled the presence of drugs behind the lower corner of the garage door, the Harris County Sheriff's Department obtained a search warrant and found the drugs and other criminal evidence. A state appeals court rejected Mr. Smith's appeal, upholding his conviction and his sentence to 37 years in prison.

The district attorney's brief cited a variety of lower-court precedents that had upheld canine sniffs as not amounting to searches: in the common corridor of a hotel, outside an Amtrak sleeper compartment, outside an apartment door, at the exterior of a home. These activities were found not to "implicate Fourth Amendment concerns," he said, because "society clearly is not willing to recognize as reasonable or legitimate an expectation of privacy in the possession of narcotics."

Now, with the required acknowledgement that denial of cert does not constitute an endorsement of a lower court opinion, this latest non-ruling certainly doesn't help the continued elevation of the sniff dog above individual rights. See my most recent post.

The interesting — and disturbing — thing about the declined dog sniff case, besides the fact the Court is letting a conflict in the lower courts continue unresolved, is the fact pattern in the Texas case.

One might think that the moment the police, with their dog, stepped on to Smith’s driveway, his privacy rights were being implicated. Well, one would be wrong. Under current Fourth Amendment jurisprudence, a person’s home does not necessarily include his yard, driveway, or any other exterior aspect to the property. The fancy legal term is curtilage.

So my question is this: Suppose Mr. Smith erected a twelve-foot high stockade fence all around his property, effectively cutting off open access to his curtilage. The dog could never have been walked up the driveway, could not have alerted to the drug scent behind the garage door, and so on.

Now, a textualist like me must admit that the Fourth Amendment says people shall be secure in their “homes” not their “property.” But on the other hand, when do you say to yourself “I’m home.”? When you pull into your driveway, or do you wait until you’ve walked through your front door?

For more on the Fourth Amendment and curtilage, see generally U.S. v. Dunn, 480 U.S. 294 (1987).

There are were many other issues at play in the Texas case, especially how the Court will eventually reconcile its current shameful “sniff dogs are, so far, never a search” thinking with its (sane) decision in Kyllo v. U.S., 533 U.S. 27 (2001), that heat-sensing equipment pointed at a home is a search.

A heat sensor is a device but a sniff dog isn’t? Feh. The heat sensor peers into the interior of the home but a dog’s nose doesn’t? Feh. Heat sensors are fallible but a dog’s nose (or his police officer handler) isn’t? Feh.

And there’s still the last great unanswered question regarding dog sniffs: whether a dog sniff of a person constitutes a search under the Fourth Amendment. If and when that fact pattern appears, it may well be the last chance for the Court to step back from the precipice to which it has brought itself — and us — perilously close.