Okay
– since a couple of people actually asked (believe it or not) – a few early
thoughts on Jardines (thanks to sabbatical, I was able to sleep in):
1.
Told you so! (There really is a reason for Sally Handmaker’s gift of the “I am
Always Right” sign in my office.)
2.
Scalia had to “save” Kyllo, but that’s not really the reason for the majority decision
(and notice how little real legal analysis there is): the State lost in the
opening paragraph of their brief: their ONLY argument was that a dog sniff is
not a search under Caballes. As someone we all know and love often argued in
class, the holding in Caballes is that a dog sniff is not a search of a CAR on
a PUBLIC highway and, as Kyllo held (independent of the garbage about something
not in reach of the general public; but notice, the concurrence equates the
thermal gun and the dog), a house is a HOUSE dammit, and the privacy rights are
different (realize how the majority just eases through this argument).
Rabb
was correct: once the police “search” (and in both Rabb and Jardines they WERE
searching) a house, they have crossed the line and need to develop real
probable cause for a warrant.
3.
The concurrence finally gets to the Katz test, but it was not needed here but
will be in closer cases (what happens when the dog is not “searching”?)
4.
Exactly WHAT is the rule of the dissent?
5.
When you have time, go back and read the transcript of the oral argument – really
notice how little of what the Court asked ended up as dispositive.
