Monday, October 01, 2012


Everyone is covering the first Monday in October today.  I will point out two local cases--

1)  The houseboat question presented by Fane Lozman (previous coverage here).  

John Pacenti has coverage today:

Fane Lozman made a boatload of money off the tech bubble and appropriately decided to live the good life with his dachshund Lady on a houseboat at a Riviera Beach marina.
The city, though, had a $2.4 million redevelopment plan for the public marina with its easy access to the ocean. Lozman stood in the city's way and was determined to fight the city's use of eminent domain.
Now the former Chicago financial trader is a cause celebre for fellow houseboat residents around the country, fighting his eviction all the way to the U.S. Supreme Court. The high court opens its fall session today by hearing arguments in the case.
The question for the nine justices is a simple one: whether a houseboat is a house or a boat. Their answer could have wide-ranging consequences for houseboat owners, floating casinos and government agencies.
"I think it's amazing this little landlord-tenant dispute made it all the way to the Supreme Court," said renowned appellate attorney Jeffrey Fisher, a Stanford University law professor handling the case for Lozman.
Amicus briefs have been filed in favor of Lozman's position by the U.S. solicitor general's office, the American Gaming Association and the floating home associations of Seattle and Sausalito, California.

This reminds me of the question Scalia raised in his recent book about what counts as a vehicle in the park....

2.  The dog sniff question: This one won't be heard till Halloween, but local public defender Howard Blumberg will be arguing it.  Here's his brief.  And here is a nice post by Lyle Denniston explaining the issues presented:

Suppose, though, that police use a dog to check for narcotics on the exterior of a home that they suspect is being used for drug trafficking.  Does the fact that the site of the search is a private home make a constitutional difference?  That is one of the new factual situations that the Supreme Court is now preparing to confront.  In the case of Florida v. Jardines, Florida’s state supreme court ruled that the U.S. Supreme Court’s past rulings on the use of drug-sniffing dogs did not apply at all when a dog was used at a home, even if the dog only sniffed exterior surfaces of a house.   Nowhere is the right of privacy stronger than in a private home, the state court said.
That case originated when police in Miami got a tip from a “crime stopper” source that the home of Joelis Jardines was being used to grow marijuana.  Police went to the home, based on that tip alone, and used a trained detection dog named Franky to check out the front porch of the house.  After circling for a few minutes, Franky sat down, near the front door.  That indicated to his police handler that the dog had detected an odor of marijuana coming from under the front door.  At that point, the officers obtained a search warrant, which the officers then carried out, finding a marijuana-growing operation inside the house.  Jardines was charged with growing illegal marijuana plants, but his lawyer contended that the search was unconstitutional because it intruded on the privacy of the home.
The state’s highest court relied primarily upon a 2001 Supreme Court decision, in the case of Kyllo v. United States, a ruling that it is unconstitutional for police to use a heat-sensing device aimed at the outside walls of a house, to check to see if marijuana was being grown inside with the use of high-intensity lamps.   When the government uses a device that the general public does not employ, and the police use it to explore the details of a home, the state court said, that is a “search” under the Fourth Amendment.   A trained dog’s sniff test fits into that category, it concluded, adding that such a test reveals not only the presence of something illegal, but it also is capable — when carried out in public view — of exposing the homeowner to public humiliation and embarrassment, and further is capable of being used in a discriminatory way.   Before police may conduct such a sniff test, it ruled, they must be able to show in court — after the fact — that they had more than mere suspicion that a crime was being committed in the crime; they had to have information indicating that it was ”probable” that there was such criminal wrongdoing taking place in the home.   The bottom line of the ruling: the use of Franky at the Jardines home was “unreasonable,” so the marijuana evidence could not be used against him.
That ruling is being challenged by state officials of Florida in their appeal to the Supreme Court.   They have the support of the federal government for their challenge.   Their basic claim is that a sniff test by a drug is not a search at all, at a home or elsewhere.

3.  Also congrats to SCOTUSblog for 10 years of blogging.  No one covers the High Court better than Tom Goldstein and Amy Howe.

1 comment:

Anonymous said...

Dog sniff case is a case in which Judge Will Thomas in Miami held that the sniff was a search requiring a warrant.