Doc Brown ... err Bill Blackstone approves
Today's case, State of Idaho v. Dorff, No. 48119 (Mar. 20, 2023) involves the Fourth Amendment, not the Fifth.
But ever since the U.S. Supreme Court returned to a property-based view of the Search and Seizure clause of the Fourth, property rights mavens' ears perk up any time a court tries to figure out whether an action by the police violated a suspect's property rights.
Quick facts: traffic stop after making a turn without signaling. Nero, the officer's drug dog, lit up after circling the car, and at one point laid its paws on the outside of the vehicle:
The K-9 officer circled Dorff’s vehicle twice with Nero. Nero never entered the interior compartment of the vehicle. However, as Nero circled the vehicle, Nero directed his nose close to the vehicle’s seams (nearly touching the vehicle in many instances); entered the wheel well areas with his snout; and reached for the vehicle’s undercarriage with the same. On Nero’s second pass, body-camera footage from the on-scene officers shows Nero made two potential contacts, and one explicit contact, with the vehicle’s exterior surface: first, on the rear passenger side of the vehicle (briefly as he jumped up); second, on the front passenger side of the vehicle (again, briefly as he jumped up); and third, on the front driver side of the vehicle—this time planting his front paws to stand up on the door and window as he sniffed the vehicle’s upper seams. During this time, the K-9 officer made upward gestures, purportedly “[p]resenting areas for [Nero] to sniff.” The K-9 officer later testified that Nero alerted during his explicit contact with Dorff’s vehicle, i.e., after Nero stood up and put his front paws on the front driver side door and window.
Slip op. at 2. The human officer then searched the car and lo and behold, found meth.
The defendant moved to suppress the evidence, arguing it was the product of an illegal search, because the police should have first obtained a warrant. Motion denied, defendant pleaded guilty conditioned on his right to appeal the denial of his motion to suppress.
A divided Idaho Supreme Court vacated the conviction. The court has previously concluded that a drug dog putting any part of itself into a vehicle is a search, and in this case extended that rationale to the exterior of a vehicle. A car qualifies as a Fourth Amendment "effect" and even though the U.S. Supreme Court since the late 1960's focused on a suspect's expectation-of-privacy under Katz v. United States, 389 U.S. 347 (1967), the Court has never abandoned a property-based view of the Fourth Amendment. See United States v. Jones, 565 U.S. 400 (2012).
The Idaho court concluded that Nero's laying of his paws on the vehicle constituted a common-law trespass to chattels. The court noted that Idaho has adopted the common law of England "so far as the same is not inconsistent with the provisions of the constitution and the laws of the United States[,]" slip op. at 7, and that in the 18th Century (according to Blackstone), personal property took on an elevated status from its second-class feudal position, and "courts of England regarded 'a man's personalty [(i.e., personal property)] in a light nearly, if not quite, equal to his realty [(i.e., real property)].'" Slip op. at 8 (quoting 2 William Blackstone, Commentaries of the Laws of England 385 (1766)).
A "trespass" to said chattels signifies any transgression, even a minor one. And for purposes of the Fourth Amendment test, according to the Idaho court, it doesn't matter whether there's any harm:
Notably, there is a “division of opinion” among scholars, and “a surprising dearth of authority” (including in Idaho) on whether a trespass to chattel was actionable when “the defendant merely interferes” with a chattel “without doing any harm—as where, for example, he merely lays hands upon the plaintiff’s horse, or sits in his car[.]” Id. at 87. Nevertheless, whether a “trespass” was actionable in the absence of damages at common law is beside the point for purposes of determining legal relations under the Fourth Amendment. See RESTATEMENT (FIRST) OF TORTS § 217 cmt. a (1934) (explaining that a “trespass” to chattel, “though not actionable . . . may nevertheless be important in the determination of the legal relations of the parties.”). The property-based test is only concerned with when a trespass occurs—not whether that particular trespass was actionable, i.e., whether that trespass could be remedied through a cause of action at common law. See Jones, 565 U.S. at 405.
Slip op. at 9. Although brushing up against your chattel while walking by (slip op. at 11), but mere "intermeddling" -- where the trespasser "without privilege or consent, rests their hand on" your chattel -- is sufficient:
It is also the difference between a dog’s tail that brushes against the bumper of your vehicle as it walks by—and a dog who, without privilege or consent, approaches your vehicle to jump on its roof, sit on its hood, stand on its window or door—or enter into your vehicle, see, e.g., Randall, 169 Idaho at 368–69, 496 P.3d at 854–55; Howard, 169 Idaho at 382, 496 P.3d at 868.In other words, although personal property interests protected by the Fourth Amendment, such as the right to possess and exclude, are not implicated by forms of contact that are less than “intermeddling”—the Amendment is certainly implicated in situations like those above, where no one would dispute the dignitary interest in maintaining the inviolability of one’s chattel. If someone directs their hand on or into your purse, or their dog jumps on or into your vehicle, without privilege or consent, no one (including common-sense) could doubt your right to protest and exclaim: “Hey! Hands-off my purse!” or “Hey! Get your dog off my car!” See RESTATEMENT (FIRST) OF TORTS § 217 cmt. a (explaining that while a “trespass to another’s chattel” might not be actionable at common law without damage it can, in certain circumstances, afford “the possessor a privilege to use force to defend his interest in its exclusive possession”); cf. Jardines, 569 U.S. at 13 (Kagan, J., concurring) (noting that property and privacy concepts can “align” as the “law of property naturally enough influences our shared social expectations of what places should be free from governmental incursions” (cleaned up)).
Slip op. at 12.
Remember that, Nero (bad dog)!
