The Second Edition: 2012-2013

The 2012-2013 Project focuses on the Fourth Amendment issues raised by law enforcement's warrantless use of trained narcotics dogs to detect narcotics from the outside of a home.

This term the Supreme Court will hear Florida v. Jardines, a case that questions whether law enforcement's use of narcotic detection dogs in front of a home, without a warrant, violates the homeowner's Fourth Amendment right to be free from unreasonable searches. The Supreme Court will review one question in the case:

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

Law enforcement officers regularly employ specially trained canines to aid in apprehending suspected narcotics growers. The centerpiece of the Jardines case, and the investigation is “Franky, the drug sniffing dog.” Franky has participated in 656 narcotics detection tasks, with 399 positive alerts. Courts have typically given canines like Franky a long leash, rarely finding that dog sniffs are “searches” for Fourth Amendment purposes. As an example, the use of a dog to detect narcotics in a car has been held not to be a Fourth Amendment search.

What makes the Jardines case unlike most other dog-sniff cases is that it concerns the area surrounding a private home, known as "curtilage" as well as a scent coming from inside the home. In this case, Franky alerted to the smell of marijuana by sniffing outside of Jardine’s home on the front porch. This positive alert served as the basis for a search warrant that law enforcement used to arrest Jardines.

Jardine argued that the Fourth Amendment protected the curtilage area of his home with a privacy interest that dog sniffing violated. In his argument, Jardine relies on the case of Kyllo v. United States, which held that the use of a thermal imaging system to detect heat from inside a home constituted a search under the Fourth Amendment because it revealed "intimate details" about the inside of the house.

The State of Florida, however, argued that dog sniffing is different from thermal imaging, because Franky and other dogs like him are trained to only detect unlawful activity, while thermal imagers collect excessive lawful information. The state also argued that the "plain view doctrine," which allows officers to search and seize things they can view from a lawful vantage point, should equally apply to anything that can be smelled from a lawful vantage point.

The Florida trial court suppressed the evidence that officers collected pursuant to the warrant, finding that Franky's sniffs constituted a search. Florida's intermediate court reversed the trial court, and Florida's Supreme Court reversed the intermediate court.

The Supreme Court has stated that the touchstone of the Fourth Amendment is reasonableness. “A reasonable expectation of privacy” exists as the threshold test for whether or not there has been a Fourth Amendment search. To determine whether an individual has a reasonable expectation of privacy, the Supreme Court has established a “twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." See Katz v. United States, 389 U.S. 347 (1967) (Harlan, J. concurring). It is this latter question of “what society is prepared to recognize as reasonable” that frames many Fourth Amendment questions and this initial project. The Supreme Court will have to determine what society is prepared to recognize as reasonable.

In addition, after the Supreme Court’s decision in United States v. Jones, the court held that when “[t]he Government physically occupie[s] private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.” The Supreme Court will have to determine if this reasoning applies to a dog sniff on private property for the purpose of obtaining information about narcotics in the house.

We believe law students have valuable insights to share about the question of an objective expectation of privacy.

Join the debate. See the Submissions.

Advertisement

Citizen Amicus Project

Project Information

Related Materials

ABA Links

Project Description

Disclaimer

News on Criminal Law