Submissions (Second Edition)

Drew Inman

The Catholic University of America, Columbus School of Law

A dog sniff at the front door of a suspected grow house should be characterized as a Fourth Amendment search requiring probable cause. Foremost in the analysis is the Constitution’s “firm line at the entrance to the house.”[1] The right to be free from unreasonable governmental intrusion into one’s home lies “[a]t the very core” of the Fourth Amendment.[2]

In modern jurisprudence, a Fourth Amendment search must meet the two-pronged requirement from Katz v. United States: 1) a subjective expectation of privacy; and 2) a determination that society would recognize the expectation as reasonable.[3] Kyllo v. United States used the Katz formulation to expand the constitutional shield around the home by deeming it a search for police to utilize “a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion.”[4] In Kyllo, police surveilled a home with a thermal imaging device that detected heat radiating off its walls. Because police could infer activities within the home from the external heat levels, Kyllo’s reasonable expectation of privacy within his home was violated.

Yet dog sniffs in front of the home are even more invasive than the thermal imager used in Kyllo. Detector dogs react to molecules originating directly within the home, whereas the Kyllo device did not penetrate the walls of Kyllo’s home. While it has been emphasized that a dog is merely using its superior, God-given senses, and is thus not a “device,”[5] the semantic distinction is of no moment. The Fourth Amendment does not distinguish—and the rationale of Kyllo applies equally to—privacy invasions by biology and technology.

Further, there are various, plausible circumstances in which detector dogs may alert for drugs in a home through no fault of the residents. For instance, just by having previously handled certain drugs, a visitor can leave detectable drug “waste molecules” in another person’s home.[6] Even solicitors or visitors who do not enter the home, if they are carrying drugs, have the potential to leave waste molecules at the doorstep of the home where the dog sniff is later performed, triggering an alert.[7] It is not even necessary that a visitor leave tangible remnants of their contraband, as the Supreme Court recently acknowledged that drugs removed from a vehicle can leave "residual odor" sufficient to cause a subsequent drug alert.[8] In like manner, residual odor from drugs previously inside a home may trigger an alert.

While the Court continues to reaffirm that dog sniffs disclose “only the presence or absence of narcotics,” and should thus be categorized as sui generis,[9] scientific studies solidly rebut this presumption. Detector dogs learn to identify contraband indirectly, by detecting “volatile odor chemicals associated with drugs,” not the target drugs themselves.[10] As such, innocent household items dispersing the volatile odors can lead to false positives. For example, detector dogs ascertain the presence of cocaine by detecting methyl benzoate.[11] Unfortunately, detector dogs can falsely alert for cocaine based on the presence of methyl benzoate originating from a number of innocuous sources, including solvents, insecticides, first aid kits, and perfume.[12]

Similarly, acetic acid is used by detector dogs to find heroin.[13] However, acetic acid is found in vinegar, pickles, and glue as well.[14] Detector dogs also alert to opium via acetic acid,[15] yet over thirty legal medications have opioid content.[16] Even a person’s contact with a pet canine that was in heat may have triggered a false alert by a detector dog.[17] Thus, since dog sniffs can indicate numerous innocent details inside a home, and critically, “[i]n the home . . . all details are intimate details,”[18] dog sniffs should not be deemed sui generis in this context.

More troubling is the overall statistical unreliability of dog sniffs. Justice Souter’s warning that “[t]he infallible dog . . . is a creature of legal fiction,”[19] has been significantly bolstered by recent studies indicating that over seventy percent of detector dog drug alerts are erroneous.[20] Compounding the error, detector dogs may be hindered when performing sniffs outside of homes because they do not have an odor "trail" to follow, and certain odor plumes disperse erratically from within the home.[21] Currently, no private agency specifically trains or certifies detector dogs to locate contraband within a building through outdoor perimeter sniffs.[22] Moreover, in one recent study that concluded handler beliefs influence the reliability of detector dogs, three handlers admitted to intentionally cuing their dogs to alert.[23] Thus, there is a danger that if dog sniffs at homes do not require probable cause, detector dogs can become an unrestrained instrumentality of their handler’s whims, biases, or racial prejudices.[24]

Finally, even disregarding the prior analysis, the process of using detector dogs on the curtilage of a home alone militates that such dog sniffs be categorized as a search. United States v. Jones established that physical trespass remains an independent basis for finding a violation of the Fourth Amendment.[25] A dog sniff should not qualify as a nontrespassory activity like a "knock and talk" encounter, as bringing a detector dog onto the curtilage of one's home is intrinsically investigative and disruptive of a resident's security. The Supreme Court of Florida recognized this, emphasizing that the dog sniff at Jardines’ home was “a sophisticated undertaking” requiring “sustained and coordinated effort by various law enforcement departments,” and, the activity being in full view of the neighborhood, inevitably involved “public opprobrium, humiliation, and embarrassment.”[26] The Court noted it would be a “harrowing experience” for a resident present during the undertaking.[27] In light of its intrusive nature, a dog sniff at a suspected grow house should be characterized as a Fourth Amendment search requiring probable cause.


Endnotes:

[1] Payton v. New York, 445 U.S. 573, 590 (1980).

[2] Silverman v. United States, 365 U.S. 505, 511 (1961).

[3] Katz v. United States, 389 U.S. 347, 361 (Harlan, J., concurring).

[4] 533 U.S. 27, 40 (2001).

[5] Brief for The Nat’l Police Canine Ass’n and Police K-9 Magazine as Amicus Curiae Supporting Petitioner, p. 4, Florida v. Jardines (2013).

[6] See Nat’l Inst. of Justice, U.S. Dep’t of Justice, Guide for the Selection of Drug Detectors for Law Enforcement Applications: NIJ Guide 601-00, at 6 (2000), available at https://www.ncjrs.gov/pdffiles1/nij/183260.pdf (“[A] person who has handled cocaine will transfer cocaine particles to anything else he or she touches, including skin, clothing, door handles, furniture, and personal belongings.”).

[7] See Brief for Fourth Amendment Scholars as Amicus Curiae Supporting Respondent, p. 33-34, Florida v. Jardines (2013) (suggesting that even a single marijuana seed dropped by a visitor at a doorstep could trigger an alert).

[8] Florida v. Harris, 133 S. Ct. 1050, 1056 (2013).

[9] United States v. Place, 462 U.S. 696, 707 (1983).

[10] Lorenzo et al., Laboratory and Field Experiments Used to Identify Canis lupus var. familiaris Active Odor Signature Chemicals from Drugs, Explosives, and Humans, 376 Analytical & Bioanalytical Chemistry 1212, 1213 (2003).

[11] See Lewis W. Katz and Aaron P. Golembiewski, Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs, 85 Neb. L. Rev. 735, 755 (2007) (“Katz”).

[12] Leslie A. Lunney, Has the Fourth Amendment Gone to the Dogs? Unreasonable Expansion of Canine Sniff Doctrine To Include Sniffs of the Home, 88 Or. L. Rev. 829, 829-39 (2009).

[13] Macias et al., A Comparison of Real Versus Simulated Contraband VOCs for Reliable Detector Dog Training Utilizing SPME-GC-MS, 40 Am. Lab. 16 (2008).

[14] Katz, 755.

[15] Id., 755-56.

[16] Brief for The Rutherford Institute as Amicus Curiae Supporting Respondent, p. 10, Florida v. Jardines (2013).

[17] See Doe v. Renfrow, 475 F. Supp. 1012, 1017 (N.D. Ind. 1979).

[18] Kyllo, 533 U.S. at 37.

[19] Illinois v. Caballes, 543 U.S. 405, 411 (2005) (dissenting).

[20] See, e.g., NSW Ombudsman, Review of the Police Powers (Drug Detection Dogs) Act 2001, at 29-30 & fig. 5 (2006) (highlighting sample of over 10,000 alerts); Hinkel & Mahr, Drug-sniffing dogs in traffic stops often wrong, Chi. Trib., Jan. 26, 2011, at C1 (stating that in select suburban departments “dogs have been wrong more often than they have been right about whether vehicles contain drugs”).

[21] Brief for The Rutherford Institute as Amicus Curiae Supporting Respondent, p. 4-5, Florida v. Jardines (2013).

[22] Id., p. 9.

[23] Lisa Lit; Julie B. Schweitzer; Anita M. Oberbauer. Handler Beliefs Affect Scent Dog Detection Outcomes, Anim. Cogn. (2011) 14:387-394, 392.

[24] See Morrison, Items seized in 2 a.m. drug search, Roanoke Times, July 26, 2011 (describing one town’s police practice of indiscriminately walking detector dogs through an apartment complex).

[25] 132 S. Ct. 945 (2012).

[26] Jardines v. Florida, 73 So. 3d 34, 48 (Fla. 2011).

[27] Id. at 49.

 

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James T. Martin  

Thomas M. Cooley Law School

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

The Fourth Amendment protects people from unreasonable searches and seizures.  The Supreme Court has generally looked at Justice Harlan’s concurrence in Katz v. United States to determine what is reasonable.[1]  In his concurrence, Justice Harlan stated that there is a twofold test to determine when a person has a reasonable expectation of privacy.[2]  First, that person must have a subjective expectation of privacy.[3]  Second, the expectation to privacy must be objectively reasonable as well.[4]

The Supreme Court has typically held that the curtilage of a home warrants Fourth Amendment protection.[5]  This is because it is an extension of a person’s home, and a person’s home receives the utmost privacy protection.  Curtilage is defined on the specific facts of the situation to determine whether or not a person has a reasonable expectation of privacy.[6]

            The curtilage at issue was Jardines’s front porch.  Detective Bartlet was brought to the front door by the drug-sniffing dog.  As stated in U.S. v. Van Dyke, there is not a per se rule to determine what is curtilage but is based on the individual facts of the case.[7]  How close was the area to the main dwelling?  Was it enclosed?  Here, Jardines’s front porch was attached to his house and had an enclosed area over it. No doubt a covered front porch is apart of a person’s curtilage.  The question is whether Jardines’s should have an expectation of privacy to that area, which is viewed by the twofold test from Katz.  It should be expected that people would come and go to a person’s front porch, whether they be friends, salesmen, law enforcement, or evangelist.  This is something that society expects.  It is the reason why many people have a “No Solicitors” sign.  However, society does not recognize an unlawful trespass by a detective to gather evidence for a search warrant.  Seeing a detective snooping around a person’s front yard would make a reasonable person nervous about what is going on.  That person might believe they are under investigation or something is wrong.  A reasonable person wants their privacy protected. 

Jardines also had a subjective expectation of privacy as well.  The marijuana that the drug-sniffing dog and Detective Bartlet smelled was inside of Jardines’s house.  Jardines’s blinds were closed, and he did not answer the door when the detectives initially knocked.  The fact that Jardines kept the grow room inside of his house shows that he wanted a degree of privacy.  Traditionally, a person keeps their most valuable possessions inside of their house because it is away from danger.   

            The State’s reliance on the plain view doctrine is misplaced.  One of the limitations of the plain view doctrine is the discovery of evidence must be inadvertent.[8] Detective Bartlet’s actions were deliberate.  He was already aware of the possibility that Jardines’s house had marijuana because of a crime-stoppers tip.  He then used a drug-sniffing dog to confirm his suspicion.  In addition, the officer must have a lawful right to the object itself.   Here, the search and seizure of Jardines’s property occurred in the curtilage of his home.  Several times the State makes reference to the fact that a warrantless search and seizure inside of a home would be improper.  But the Supreme Court has recognized Fourth Amendment protection to the curtilage as well, meaning the detectives would need a warrant to lawfully search that area.  There was no exception to the Fourth Amendment that would allow the detective to lawfully search Jardines’s curtilage.

            Public policy dictates that this search is unlawful.  Detective Bartlet brought a drug-sniffing dog to Jardines’s front yard to obtain information for a search warrant.  If the search were found valid, what would keep a detective from walking around a neighborhood with a drug-sniffing dog?  Police departments could employ special door-to-door drug-sniffing units to get probable cause, walking around neighborhoods or apartment complexes.  This would lead to an invasion of privacy that the Fourth Amendment was designed to prevent.  Maybe, it would lead to finding a few more criminals harboring drugs.  But no drug-sniffing dog is one hundred percent accurate.  This would lead to searches of innocent people and an invasion of privacy.

            The actions done by the drug-sniffing dog was a search under the Fourth Amendment.  Jardines had a reasonable expectation to privacy in the curtilage of his front yard.  Curtilage has traditionally been under the purveyance of the Fourth Amendment, and this should be no exception.

 

 

 

[1] Katz v. U.S., 389 U.S. 347, 361 (1967).

[2] Id.

[3] Id.

[4] Id.

[5] Oliver v. U.S., 466 U.S. 170, 180 (1984).

[6] Id.

[7] U.S. v. Van Dyke, 643 F.2d 992, 994 (4th Cir. 1981).

[8] Coolidge v. New Hampshire, 403 U.S. 443, 469 (1971)

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Jameca Price

 

Atlanta's John Marshall Law School

The Courts of the United States will always debate what’s reasonable. A lawyer can show his best lawyering skills by arguing what’s reasonable.  This is a pronounced gray area. The gray area is what us lawyers love! A dog sniff by a specially trained dog, on private property, can be seen as a search and a violation of the fourth amendment. This amendment was made to protect citizens and provide a reasonable expectation of privacy. Due to the word reasonable taking on many meanings and explanations, it’s up to lawyers to tell the Court what’s reasonable by presenting our best argument.

            To determine if there is a reasonable expectation of privacy, the two-part test must be met. The individual must be in a situation where privacy is expected and that the expectation is reasonable. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967).

As an occupant of your own home, you have the expectation of privacy and that expectation is reasonable. This is your home. This is where your most private affairs occur.

A police drug dog has no reasonable reason to be at the home of any citizen without a warrant. In the eye of a police officer, sometimes that fine reasonable line has to be walked. Sometimes the officers go beyond that reasonable line. Is there some punishment for that? The damage is done. Throw the decision away? Is that the remedy for the fine line crossed? What about the time, money, and lives of the people involved? If the proper procedure was done initially, this litigation could have been avoided and this case would potentially be resolved. In the eye of the reasonable citizen, this is seen as a direct violation. If a dog and his owner were walking by a home and a dog alerts to something at the home, a curious owner may wonder, what’s causing the dog to react in such a way. When a police officer, has a specially trained dog that is used to seek narcotics and uses that dog around the home of a suspect, that is a direct violation.  At least, that’s what a Defense Attorney would argue. When that dog barks, or alerts, because of the special training, the officer will know why the dog is reacting that way. This is where the line of reasonable is crossed. If we as citizens can’t expect privacy in our homes, where can we expect it? As we await the decision, we can only hope that the Courts continue to view this through the eyes of the people as well as the big picture -- the reasonable expectation of privacy.

            In Florida v. Jardines, the Florida Supreme Court reached the right decision. This is a search. It leaves to ask, without the dog, can the officer alone smell the scent of narcotics? If not, then the search by a trained canine constitutes a search and therefore a warrant should have been obtained to enter into the premises. The plain view doctrine, that was incorrectly argued in my opinion in this case, would constitute an officer seeing drugs in the home of the suspect using his own eyes. If the officer didn’t smell the narcotics with his own nose, not invading the curtilage space of the home, then this is violating the citizen’s right to privacy in his home. All evidence obtained should not be admitted in this case. I believe this would have presented a different scenario if the officer walked by and with his own nose and smelled the narcotics in the home. Unfortunately, this was not the case here. Due to the specially trained dog being used, it leaves the mind to think and wonder if this was an intentional act by the officers involved. A mindset of  “Get the evidence now, sort it through the courts later”.

            To argue the use of the plain view doctrine does not suit as a viable argument. The officer was in direct violation of the citizen’s right to privacy and the Court is currently upholding the correct decision. The dog is specially trained to sniff narcotics only. There is no reason that the officer can give to validate having a specially trained dog at the home of a suspect. The dog was there for one reason. That one reason was to give the impatient officer a reason to enter into the home of the suspect. There should be no disregard of privacy -- even when the subject is a suspected drug dealer. In no way is this argument to approve the manufacturing or possession of narcotics, but this is a stand for privacy. This is a stand for the correct procedure to take place when it comes to seeking an arrest of a citizen. We should respect the police for doing their job but we want the police to do it in the correct way. Let’s keep the people safe from the drugs and violence but let’s utilize our judicial system in that fight.

 

 

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Molly Rose Green

American University, Washington College of Law   

The Fourth Amendment of the United States Constitution guarantees freedom from unreasonable searches and seizures.[1]  Katz v. United States provides a two-fold test for determining what constitutes a search.[2]  First, a person must have a subjective expectation of privacy in the object of the search; second, society must deem that expectation reasonable.[3]  In drug dog sniff cases, however, the Supreme Court has altered the Katz test to examine the legitimacy of the contraband item, rather than the reasonableness of one’s privacy expectation.  For example, in Illinois v. Caballes the court held that a sniff was not a search during a justified traffic stop. [4]  The court reasoned that there was no legitimate interest in possessing contraband, but did not fully examine whether a person might have a reasonable privacy expectation for the inside of his vehicle.[5] 

The Florida Supreme Court’s decision in Jardines v. State[6] is a step away from Supreme Court precedent holding that a sniff is not a search in different circumstances.[7]  Despite this precedent, the court in Jardines correctly applied the Katz test by examining the defendant's reasonable privacy interest in his home, rather than the legitimacy of possessing marijuana.[8]  The right of privacy in one's home is reasonable; the home was historically afforded special protection and considered one place certain to remain free from intrusion.[9]  Unlike a piece of luggage at an airport or a car on a highway, a resident has not intentionally brought his home into the public sphere.[10]  Additionally, a drug dog sniff of a private home is not a quick or anonymous endeavor, unlike sniffing a piece of luggage.[11]

Florida does recognize police officers' right to be legally on an individual's front porch,[12] and the Fourth Amendment does not protect anything that is exposed to the plain view of an outsider.[13]  However, a dog's nose far exceeds the olfactory capacities of a human’s and senses odors that would not be apparent to an officer.[14]  This capacity reveals much that is beyond the "plain view" and should constitute a search.[15]  Courts are rightfully hesitant to permit police activities that will reveal intimate details of the home.[16]  Drug dogs are fallible and prone to false positives, in which a dog alerts to the presence of a drug, but no drug is found.[17]  These alerts often lead to a more invasive search of the interior of the home, further invading the privacy of innocent citizens.[18]

Additionally, the public interest in detecting home drug use is not compelling enough to justify invading the privacy of the home without probable cause.  The Supreme Court has recognized a standard lower than probable cause for cases involving public interest or public safety, weighed against the Fourth Amendment right to privacy.[19]  However, the public interest in stemming illegal drug use or production in the home is not compelling enough to legitimize the violation of privacy, and private drug use has little effect on public safety.[20] 

Allowing dogs to sniff search homes without probable cause has worrisome implications.  Without the requirement of probable cause, nothing would stop police officers from legally walking up and down streets with drug dogs, with an open invitation to further search any home where a dog happens to alert.[21]  Moreover, it is not so far-fetched to predict officers targeting particular neighborhoods based on race or other improper factors.[22]

In conclusion, the Supreme Court should affirm the decision of the Florida Supreme Court in Jardines.  A drug dog sniff impermissibly invades the privacy of the home and should not be permitted without probable cause.


 

 

 

[1] U.S. Const. amend. IV.

[2] 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

[3] Id.

[4] 543 U.S. at 408.

[5] Id. at 408-09. 

[6] 9 So. 3d 1 (Fla. Dist. Ct. App. 2008), rev'd, 73 So. 3d 34 (Fla. 2011), cert. granted, No. 11-564, 2012 WL 28952, at *1 (Jan. 6, 2012).

[7] See, e.g., Illinois v. Caballes, 543 U.S. 405, 409 (2005) (sniff during a legitimate traffic stop); Jardines v. State, 73 So. 3d 34, 40 (Fla. 2011) (sniff of luggage at an airport).

[8] See Jardines, 73 So. 3d at 45.

[9] See Kyllo v. United States, 533 U.S. 27, 31 (2001) (declaring that the right to be free from unreasonable governmental intrusion in the home is at the core of the Fourth Amendment).

[10] See Lewis R. Katz & Aaron P. Golembiewski, Curbing the Dog:  Extending the Protection of the Fourth Amendment to Police Drug Dogs, 85 Neb. L. Rev. 735, 765 (2007) (distinguishing between searching the home and searching objects brought outside the home).

[11] See Jardines, 73 So. 3d at 48-49 (emphasizing that the sniff was an embarrassing and public endeavor involving multiple police officers and vehicles and a long-lasting search effort on the front yard); cf. Katz & Golembiewski, supra note 15, at 751 n.54 (observing that drug dogs are a major intrusion and invoke images of their recent use in World War II concentration camps).

[12] State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981).

[13] Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

[14] See generally Mark E. Smith, Going to the Dogs:  Evaluating the Proper Standard for Narcotic Detector Dog Searches of Private Residences, 46 Hous. L. Rev. 103, 116.

[15] Cf. Jardines, 73 So. 3d at 37 (noticing that the police officer said he smelled marijuana only after the dog gave a positive alert).

[16] See Kyllo v. United States, 533 U.S. 27, 38 (2001) (finding a thermal imaging device unconstitutional because it could reveal intimate details, such as when the "lady of the house takes her daily sauna and bath").

[17] See Illinois v. Caballes, 543 U.S. 405, 410 (2005) (Souter, J., dissenting) (questioning the determination that drug dogs are infallible); Katz & Golembiewski, supra note 16, at 757 (stating that a drug dog will not only alert to illegal substances).

[18] See Aya Gruber, Garbage Pails and Puppy Dog Tails:  Is That What Katz Is Made of?, 41 U.C. Davis L. Rev. 781, 822 (2008) (maintaining that because a dog is fallible, the sniff will eventually reveal intimate information about the home).

[19] See Jardines, 73 So. 3d at 52 (listing situations where the Supreme Court has approved a lower standard, including in schools, during border patrols, and in prisons).

[20] See Caballes, 543 U.S. at 424 (Ginsberg, J. dissenting) ("This court has distinguished between the general interest in crime control and more immediate threats to public safety."); see also City of Indianapolis v. Edmond, 531 U.S. 32, 38-39 (2000) (differentiating unconstitutional highway checkpoint drug sniff intended to discover illegal narcotics from a constitutional D.U.I. checkpoint intended to protect public safety).

[21] Cf. Caballes, 543 U.S. at 422 (Ginsberg, J., dissenting) (warning that the court's decision cleared the way for "suspicion-less, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots").

[22] See Dan Hinkel & Joe Mahr, Drug Dogs Often Wrong:  Police Canines Can Fall Short, but Observers Cite Residue and Poor Training as Factors, Chicago Tribune, Jan. 6, 2011, at C1 (discussing a study that suggested Hispanics were targeted for drug dog sniffs in Chicago).

 

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Passing the Smell Test

Jonathan Spellman
Florida Coastal Law School

The use of a narcotic detection dog in front of a home, without a warrant, violates a homeowner's Fourth Amendment right to be free from unreasonable searches because such a “sniff test” constitutes a search within the meaning of the Fourth Amendment.

The Fourth Amendment provides people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”, and requires that warrants be issued based only upon probable cause. The United States Supreme Court has held, with “few exceptions,” that warrantless searches of homes are unreasonable. This protective line at the entrance to one’s home even extends to information, obtained by sense-enhancing technology not in general public use, regarding the interior of the home.  

LOCATION, LOCATION, LOCATION! 

Where a “sniff test” occurs will typically affect how much of an expectation of privacy the individual has under the Fourth Amendment. For example, persons at a United States border or border equivalent, receive a more minimal level of Fourth Amendment protection while a person at home would enjoy the greatest Fourth Amendment protections. But somewhere along this spectrum between the home and border lies the use of dogs to search automobiles. Two Supreme Court decisions support the use of  “sniff tests” of the exterior of a vehicle by a detection dog based on both the government’s interests and the individual’s reduced expectation of privacy in both situations. But a sniff done of a home, is made under different circumstances. At home the balance of these interests favors the individual’s expectation of privacy and thus raises the contestability of using dogs to search.

The Court has held where the Government uses a device not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant. The Court made its decision because of the “intimate” details contained within a home including heat. Surely odors emitted from a home could divulge the same personal activities exposed by heat, which the Court was careful to guard. Finally vision, like smell, is a sense and so using these dogs, like the use of a thermal-scan, enhances a sense and is technology not in general public use. Based on this and that society should have some expectation of privacy in their home, the use of “sniff tests” at a home should constitute a search.

“but fido said he Smelled probable cause in that house!”

The other issue with allowing suspicion less dog sniffs (“sniff tests”) at homes is the room for error and potential for abuse. Permitting these sniffs would eliminate any real incentive for police departments with canines to get warrants. An officer could simply claim his dog gave him a positive alert when in fact the dog did nothing; The officer could mistake a dog’s reaction for a positive alert (cannot ask a dog what it is thinking) and; Finally, canine officers, like their human counterparts, are capable of making mistakes. The oral arguments for Jardines mentioned accuracy rates as low as 12%.

Also the issue of residual smells came up at oral argument. This article wishes to point out a difference between residual odors with a car door (specifically a driver’s side door) and a home’s door. The driver’s side door is most likely last used by the driver and used most by the driver, making any residual odors found on that door closer to sufficient for probable cause. But people who live at home may either more often or even almost entirely use their garage or other doors and almost never use their front door to gain entrance to their home. Further even assuming use of the front door, any repairman, cleaning person, or even an unwelcomed visitor/burglar could have left any residual odors found on a houses front door. Because of this lack in exclusivity of use in the front door, sniffs of the front door should not be allowed.

These potential mistakes may be more permissible when they occur in a place with a reduced expectation of privacy, but when it occurs at a person’s home, there is less room for error. Mistakes at home can expose the very details of an individual’s life that the Fourth Amendment was designed to guard. And the Court has emphasized a preservation of the degree of privacy against government that “existed when the Fourth Amendment was adopted.“ With this standard in mind the training of police detection dogs should be standardized and subject to judicial review under a totality of the circumstances. Currently no certification nor questioning of the handler nor the handler's training is used according to the oral arguments for Jardines. So unlike other forms of training (for example medical or legal education) police dog training programs are neither accredited, based on national standards, nor must graduates take additional licensing tests nor obtain certain certifications before going into the field (practice). Finally, unlike law and medical students, police dogs cannot talk and therefore, cannot be cross-examined about their conclusions or qualifications. 

The use of drug dogs is too unreliable to avoid police abuse, police mistakes, and mistakes by the dogs. Standards for their training should be established and subject to judicial review. Based on all of these potential avenues for error and the protection afforded to the home under the Fourth Amendment when it was adopted police should not be granted a legal method to “pick people’s locks.” 

CONCLUSION

The Government may not use a device, not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion. That surveillance is a “search” and is presumptively unreasonable without a warrant. Allowing the use of drug detection dogs, an example/equivalent of a device not in general public use because of their training, would result in this general rule being swallowed by its narrow exception. For these reasons the United States Supreme Court should find these searches violate the Fourth Amendment.

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“It’s Easy”: The Real Question (and Answer) Presented In Florida v. Jardines

Ronak Patel

University of the Pacific, McGeorge School of Law

In the near future, the Supreme Court will answer the following question presented in Florida v. Jardines:

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?

Jardines may prove to be a paradigm shifting case, and deals with a fundamental right[1]—perhaps our most important right—the right to freedom from unreasonable searches and seizures not sanctioned by a warrant.[2] Ultimately, such a paradigm shift is not irregular, as search and seizure has seen great changes over the course of our history.[3]

It is hard to predict the outcome of cases which address fundamental rights and limits on governmental power. Anyone who doubts this need only look to Justice Robert’s unexpected decision to uphold the individual mandate only six short months ago.[4] Yet, in this case, we can be confident that the Supreme Court will affirm that the dog sniff, when used at a persons door step to detect what is inside the house, requires a warrant, as they essentially already said so just one year ago in United States v. Jones, and said so even earlier in Kyllo v. United States. To understand why Kyllo and Jones dictate this result, one only need to consider the guiding philosophy of their author: Justice Antoin Scalia.

The venerable Justice Scalia is perhaps the most fervent advocate of constitutional originalism, which dictates that the court should interpret the Constitution as it was understood by the founders.[5] Indeed, he recently discussed how he would approach the issues of death penalty, abortion, and homosexuality. These three issues represent some of the most tumultuous debates in American society—not only politically, but also legally. Each has been fervently argued and scrutinized, and a cornucopia of jurists have produced large volumes of lengthy opinions, covering a diverse array of views, and thus lacks a clear doctrinal certainty that many other areas of the law have. But as a strict originalist, Scalia could confidently give the following remarks on the difficulty of deciding these hotly debated matters:

The death penalty? Give me a break. It’s easy. Abortion. Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy. Come on.[6]

Many would disagree with Scalia’s approach, but if we follow it, or if at least he and the court follows it—and they did in Kyllo v. United States[7]—all we must ask is whether, during the drafting of the Constitution, the founders envisioned that it would be reasonable for those who voted for the Constitution to expect that the government could come outside their house—to their front step—at any time and without any reason, and use animals to detect intimate details[8] inside the house, and which a human could not detect themselves.

Yet, we may not even need to go that far[9] in this case, since the court recently, in United States v. Jones, made it clear that a police action which amounts to trespass does not even require a Katz analysis, because unwarranted trespass is inherently prohibited by the fourth amendment.[10] Jones involved placing a GPS tracker on an automobile—two forms of technologies the founders did not contemplate but which the court, in an opinion that the originalist Justice Scalia authored, found to still amount to a trespass.[11] Thus, the real question presented in this case is the following:

“Can the government enter your private property, come to your front door, and use drug sniffing dogs—a technology not discovered until the late 20th century—to detect the intimate details[12] in the inside of your house without a warrant, where the court has held that, [i]n the home . . . . all details are intimate details, because the entire area is held safe from prying government eyes,” and where the amendment that limits governmental intrusion was based in the doctrine of trespass, a doctrine which, at the founding, prohibited any unauthorized entry onto private land?”

The court’s answer? “It’s easy . . . absolutely easy . . .come on.”[13]

Notes:

 

 

 

[1] U.S. Const. amend. IV (protecting citizens from unreasonable serches and seizures); see also Fourth Amendment: An Overview, Cornell University Law School Legal Information Institute, www.law.cornell.edu/wex/fourth_amendment (last visited Dec. 20, 2012) (noting that the amendment protects two fundamental liberty interests: “the right to privacy and freedom from arbitrary invasions).

 

 

[2] U.S. Const. amend IV.

 

 

[3] For example, compare Olmstead v. United States, 277 U.S. 348 with Katz v. United States, 389 U.S. 347 and Jones v. United States, 132 S.Ct. 945 (2012)

 

 

[4] Adam Liptak, Supreme Court Upholds Health Care Law, 5-4, In Victory for Obama, The New York Times, Jun. 28, 2012, http://www.nytimes.com/2012/06/29/us/supreme-court-lets-health-law-largely-stand.html?_r=3&pagewanted=all& (noting that most thought an opinion upholding the law would come down to the perennial swing vote, Justice Kennedy); see also National Federation of Independent Business v. Sebelius, 567 U.S. ____ (2012).

 

 

[5] Theories of Constitutional Interpretation, UMKC: Exploring Constitutional Conflicts, law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html (last visited Dec. 20, 2012).

 

 

[6] Scalia: Abortion, Death Penalty "Easy" Cases, CBSNEWS, Oct. 5, 2012, www.cbsnews.com/8301-250_162-57526578/scalia-abortion-death-penalty-easy-cases (emphasis added).

 

 

[7] See Kyllo v. United States, 533 U.S. 27, 37 (2001) (holding, in a majority opinion authored by Justice Scalia, that all details inside of the home are intimate and that government efforts to discover those details amount to a search).

 

 

[8] Kyllo, 533 U.S. at 37 (holding, in an opinion authored by Justice Scalia, that all details inside of the home are intimate and that government efforts to discover those details amount to a search).

 

 

[9] See Jones, 132 U.S. at 954 (noting that, because a trespass was involved, a Katz analysis was unnecessary and irrelevant).

 

 

[10] Jones, 132. at 954

 

 

[11] Jones, 132 U.S. at 951, 953.

 

 

[12] Kyllo, 533 U.S. at 37.

 

 

[13] Scalia, supra note 7 (emphasis added).

 

 

-------------------------

Michael Schearer

University of the District of Columbia David A. Clarke School of Law

The question presented in Florida v. Jardines  is 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. Because Franky’s sniff was a sense-enhancing technology not in public use, and because the police trespassed to obtain information, the dog sniff should be held to be a search.

The Fourth Amendment provides in part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”[1]

Modern Fourth Amendment jurisprudence is derived from Justice Harlan’s concurrence in Katz v. United States.[2]There, he articulated a two part test that would later be adopted by the Court in Smith v. Maryland.[3]The Fourth Amendment is implicated when a person has an actual (subjective)expectation of privacy, and when that expectation is (objectively) reasonable to society.[4]

More recently, the Court has supplemented the Harlan test with a property –focused approach that recognizes the connection between private property and a physical intrusion that would constitute common law trespass. Two recent cases that provide illumination on this issue are Kyllo v. United States[5]and United States v. Jones.[6]

In Kyllo, the Court addressed the role of technologically sophisticated surveillance as it relates to the Fourth Amendment. The police used a thermal imaging device to identify heat emanating from the home of a suspected grow house. Despite the fact that this device was used from a public street, the Court concluded that“[w]here …the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”[7]

The common law trespassory test was revived in Jones. There, the police placed a GPS tracking device on Jones’ vehicle to obtain his vehicle location over the course of 28 days. Writing for the Court, Justice Scalia found that in placing the GPS device, “[t]he Government physically occupied private property for the purpose of obtaining information.”[8] This physical intrusion constituted a “search” and thus implicated the Fourth Amendment.[9]

The dog sniff in Jardines has been compared with Illinois v. Caballes [10],where a dog sniff during a traffic stop was found to not violate the Fourth Amendment. Caballes, in turn, relied on United States v. Place[11] and City of Indianapolis v. Edmond.[12] In Place, the Court found that a dog sniff of luggage did not constitute a search because it did not require opening the luggage or exposing items that would otherwise remain hidden from view.[13] Similarly, in Edmond the Court held that a dog walk around a car was not intrusive enough to be considered a search.[14]

The obvious and common nexus found in Caballes, Place, and Edmonds is that the alleged searches were done away from the home. Although not at all consistent in their application[15], the Court has undoubtedly indicated that the expectation of privacy in vehicles is lessened as compared to the home. Similarly, the privacy of the luggage of a traveler at an airport lessened due to the Government’s interest in protecting air travelers.

The facts in Jardines bring us close to the home, but not quite through the “firm line at the entrance."[16] Rather, here the police conducted the dog sniff from Joelis Jardines’ front porch. Based on the two approaches cited above, two questions arise. First, was the use of the dog sniff consistent with the sense-enhancing technology employed by the police in Kyllo; and second, did the dog sniff constitute a physical trespass upon Jardines’ front porch? Regardless of which approach the Court decides to take, the answer to both questions is most assuredly yes.

Using the Katz approach articulated by Harlan and refined in Kyllo, a trained drug sniff dog is not a device in general public use. But to suggest that these dogs only alert to contraband, and thus could never implicate Fourth Amendment protections(because, presumably, a person has no expectation of privacy in contraband) is a circular argument that did not convince (at least) three justices during oral arguments. Moreover, the sober evidence discussed by a number of Fourth Amendment scholars[17] indicates agreement with Justice Souter’s proclamation in Caballes:“ The infallible dog… is a creature of legal fiction.”[18]

Because the alleged search never crossed the threshold of Joelis Jardines’ home, the common law trespassory test requires us to address the issue of curtilage. The Court articulated a four factor test to define curtilage United States v. Dunn.[19] However, the front porch of a home generally regarded as exempt from this protection because homeowners impliedly consent for visitors to come to the door to knock. Additionally, the police “knock and talk” tactic is a common procedure that does not appear to have received much recent scrutiny (notwithstanding the Court’s prior holding in Johnson v. United States[20]). But these are limited purposes.

Even presuming the legitimacy of the owner’s implied consent and the validity of the “knock and talk,” there comes a time when the limited purpose ends and reasonableness must prevail. A homeowner’s implied consent to visitors on the front porch only lasts until the homeowner has the opportunity to invite the visitor in, or on the other hand, turn the visitor away. Similarly, the police officer’s presence on the front porch can only said to be legitimate until an otherwise benign purpose disappeared. A police officer stationed on the front porch for several minutes(without knocking, to be clear), with Franky sniffing at the door and a supporting cast of law enforcement officials in the immediate vicinity, cannot said to have been benign.

 

Endnotes

 

 

 

[1] U.S. Const. amend. IV.

[2] 389 U.S. 347, 360 (Harlan, J., concurring).

[3] 442 U.S. 735.

[4] Id.,at 740.

[5] 533 U.S. 27.

[6] 132 S. Ct. 945.

[7] Kyllo,533 U.S. at 32.

[8] Jones,132 S. Ct. at 949.

[9] Id.

[10] 543 U.S. 405.

[11] 462 U.S. 696.

[12] 531 U.S. 32.

[13] Place,462 U.S. at 707.

[14] Edmond,531 U.S. at 40.

[15] Seegenerally New York v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S. 615 (2004); and  Arizonav. Gant, 556 U.S. 332 (2009).

[16] Paytonv. New York, 455 U.S. 573, 590.

[17] SeeBrief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, Florida v. Jardines, No. 11-564.

[18] Caballes,543 U.S. at 411 (Souter, J., dissenting).

[19]480 U.S. 294, 301.

[20]333 U.S. 10.

 

-----------------

Nicole Aloi

Florida Coastal School of Law

“Privacy of the Home”

INTRODUCTION

The issue currently before the Supreme Court of the United States in Florida v. Jardines is whether the use of a narcotic detection dog in front of a home by law enforcement officers, without a warrant, violates the homeowner’s Fourth Amendment right to be free from unreasonable searches.  This issue may be broken down into three parts:  (I) whether a home is a protected area of the Fourth Amendment; (II) whether the use of a narcotic detection dog in front of a home by law enforcement officers constitutes a search; and (III) if it does constitute a search, whether the search was reasonable. 

I.  A home is a protected area of the Fourth Amendment because there is a right of privacy. 

In United States v. Katz,1 the court held that Fourth Amendment protection was restricted to all areas where a person has a reasonable expectation of privacy.  Harlan’s test (derived from Katz) provides that (1) if the individual has exhibited an actual expectation of privacy and (2) society is prepared to recognize that this expectation is objectively reasonable, then there is a right of privacy in the given circumstance.2  It is presumed within society that an individual expects to maintain privacy within his home; individuals exhibit this expectation through the physically manifested safeguards of the home, inter alia doors, door locks, windows, window locks, fences, and security systems.  It is logical then, to presume that society is prepared to recognize that the expectation of privacy within one’s home is objectively reasonable.  Thus, Fourth Amendment protection applies to a home because there is a right of privacy in the given circumstance.

II.  The use of a narcotic detection dog in front of a home by law enforcement officers constitutes a search because the information could not have otherwise been obtained without a physical intrusion.

In Kyllo v. United States.,3 the court held that the use of sense-enhancing technology to gather any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, and therefore the use of thermal imaging to measure heat emanating from the home was a search.  The use of a narcotic detection dog is analogous to the use of thermal imaging.  In both scenarios, law enforcement officers are using a method of obtaining information within a home from the proximity of the home but without a physical breach.  Courts have noted that the Fourth Amendment draws “a firm line at the entrance to the house.”4 Thus, where the information provided by a narcotic detection dog could not have been otherwise obtained without a physical intrusion into a constitutionally protected area, the use of the narcotic detection dog constitutes a search; a warrantless search of this nature is unreasonable.

The State of Florida in Jardines v. State5 argued that the use of a narcotic detection dog was distinguishable from the use of thermal imaging in Kyllo because the dogs detect only unlawful activity while the thermal imagers may detect both unlawful and lawful activity.  However, the principle that individuals should not be subject to unreasonable search and seizure does not stipulate that a warrantless search is reasonable when it is designed strictly to detect only unlawful activity; a warrantless search is unreasonable regardless. 

The State of Florida further argued that law officers maintain the right to search and seize what is visible from a lawful standpoint and so it should follow that law officers maintain the right to search and seize what may be smelled from a lawful standpoint.6  However, in Katz, the court noted that when an individual enters a telephone booth, although he is visible from the outside, “what he sought to exclude when he entered the booth was not the intruding eye – it was the uninvited ear . . . [and h]e did not shed his right to do so simply because he made calls from a place where he might be seen.”7

III.  A warrantless search conducted by law enforcement officers with the use of a narcotic detection dog in front of a home is an unreasonable search where the officers did not have probable cause.

The Florida Supreme Court in Jardines8 noted that “the probable cause requirement applies with extra force when the sanctity of the home is concerned.”  One factor to consider when determining probable cause in a case similar to Jardines is whether the narcotic detection dog is reliable.9  The burden is on the State to establish that the dog is reliable.10   In Harris v. State, the court noted that “[t]o adopt the contrary view that the burden is on the defendant to present evidence . . . that the dog is unreliable would be contrary to the well-established proposition that the burden is on the State to establish probable cause for a warrantless search.”11

Furthermore, the issue in Jardines is nearly indistinguishable from that in State v. Rabb.12   In State v. Rabb, a narcotic detection dog sniffed at an exterior door of the defendant’s home.13  The Court held that this was an illegal search under the Fourth Amendment since the dog's sense of smell crossed the door of the home, and the smell detected by the dog was an intimate detail of the home.14  Thus, the dog sniff was considered a search and the warrantless dog sniff was considered an unreasonable search. 

CONCLUSION

Individuals have long exhibited an expectation of privacy within a dwelling, and society has recognized this expectation as objectively reasonable.  A warrantless search of a dwelling is therefore unreasonable, and the use of a narcotic detection dog to obtain information from within the dwelling is a search for this purpose.  This kind of search is thus illegal under the Fourth Amendment.

Endnotes:

1 U.S. v. Katz, 389 U.S. 347, 360 (1967).

2 Katz, 389 U.S. at 361 (Harlan, J., concurring).

3 Kyllo v. U.S., 533 U.S. 27, 29 (2001).

4 State v. Rabb, 920 So. 2d 1175, 1182 (Fla. Dist. Ct. App. 4th Dist. 2006) (quoting Payton v. New York, 445 U.S. 573, 589 (1980); Jardines v. State, 73 So. 3d 34, 55 (Fla. 2011), cert. granted, 132 S. Ct. 995 (U.S. 2012) (citing Kyllo v. U.S., 533 U.S. 27, 40 (2011).

5 State v. Jardines, 9 So. 3d 1, 5 (Fla. Dist. Ct. App. 3d Dist. 2008).

6 State v. Jardines, 9 So. 3d 1, 6 (Fla. Dist. Ct. App. 3d Dis. 2008) (citing Harris v. United States, 390 U.S. 234, 236 (1968) (establishing that evidence in the plain view of officers may be searched without a warrant)).

7 Katz, 389 U.S. at 352.

8 Jardines, 73 So. 3d at 36-37.

9 Harris v. State, 71 So. 3d 756, 758 (Fla. 2011), cert. granted, 132 S. Ct. 1796 (U.S. 2012). 

10 Id. at 759.

11 Id.

12 State v. Rabb, 920 So. 2d 1175, 1182 (Fla. Dist. Ct. App. 4th Dist. 2006) (“The question emphasized by the parties in this case is whether a dog sniff at the exterior of a house is a search under the Fourth Amendment.”).  

13 Id. at 1178.

14 Id. at 1192.

------------

Leigh Ellen Gray

Charleston School of Law

DON'T SCREW THE POOCH: Why the Supreme Court Should Find There Was No Fourth Amendment Search in Florida v. Jardines

The police may have trespassed in Florida v. Jardines, but they did not conduct a search under the Fourth Amendment. See, e.g., Katz v. U.S., 389 U.S. 347, 353 (1967) (holding that, unlike trespass, the Fourth Amendment does not depend on physical intrusion but rather on whether the person expected reasonable privacy). In Katz, the Court held that listening to conversations via a device placed on the exterior of a public phone booth constituted an impermissible search, despite the fact that there was no physical intrusion into the booth, because petitioner had manifested a reasonable expectation of privacy. 389 U.S. at 359.

However, the Court has given substantial deference to homes when deciding whether a search occurred. See, e.g. California v. Carney, 471 U.S. 386, 391 (1984) (distinguishing between the lower level of protection afforded to a vehicle as opposed to the protection afforded to one's home or office). In Carney, the Court explained that the element of mobility, and the government's interest in regulating public roadways, both suggest a lessened privacy expectation for vehicles. Id. Furthermore, the Court has contrasted the home with public places, recognizing that “searches” of chattel in public places, such as luggage in airports, deserve less deference under the Fourth Amendment because of the public safety interests implicated. U.S. v. Place, 462 U.S. 696, 703 (1983). In Place, the Court held that a sniff of respondent's luggage by a drug dog in a public airport did not constitute a search. Id. However, despite the presumption of heightened protection given to homes, the Court has held that there is no search, “even when the explicitly protected location of a house is concerned, unless 'the individual manifested a subjective expectation of privacy in the object of the challenged search and society is willing to recognize that expectation as reasonable.'” Kyllo v. U.S., 533 U.S. 27, 33 (2001) (quoting Katz).

Because of the deference traditionally shown to houses, the petitioner in Jardines has a good argument that he reasonably expected privacy and is therefore entitled to a presumption that a search occurred when police approached the house with a drug dog to determine whether drugs could be detected from the home's exterior. However, the privacy expectations are blurred given the Court's tradition of distinguishing trespass from searches and the fact that the potential “search” occurred on the petitioner's land but did not breach the doorway of the house.

Further weakening petitioner's claims is the fact that a sniff by a drug dog is an activity which reveals only the presence or absence of drugs, objects in which society does not recognize a reasonable expectation of privacy. The Court has recognized that a luggage sniff in a public airport by a drug dog is not a search because the procedure is “less intrusive than a typical search” and “the sniff discloses only the presence or absence of narcotics, a contraband item.” Place, 462 U.S. at 707. Furthermore, “the use of a well-trained narcotics-detection dog—one that 'does not expose noncontraband items that otherwise would remain hidden from public view'—during a lawful traffic stop generally does not implicate legitimate privacy interests.” Illinois v. Caballes, 543 U.S. 405, 408 (2005). Under these cases, a drug dog's sniff is a unique search, one which can determine the presence or absence of drugs but which does not detect other details of the “searched” location, whether luggage or a car exterior. A house may enjoy a higher presumption of privacy, but the technical function of the search is unchanged—a dog sniff at the outer door will not reveal any details about the interior contents of the home except the presence or absence of drugs, thus making it a specially circumscribed procedure which does not violate the Fourth Amendment.

Furthermore, the Court held in Caballes that because a drug dog's sniff reveals only the presence or absence of contraband, no privacy interest is implicated because “any interest in possessing contraband cannot be deemed legitimate.” Id. at 408. The Court draws a firm distinction between an expectation “that certain facts will not come to the attention of the authorities” and “an interest in privacy that society is prepared to consider reasonable.” Id. at 409. Because a drug dog's sniff can only reveal the presence or absence of drugs (a contraband item that society will not imbue with a reasonable expectation of privacy), there is no search under the Fourth Amendment.

In contrast to Jardines, consider the Court's holdings in Kyllo and Jones. In Kyllo, a thermal-imaging device pointed at a home which measured relative heat levels inside the house was a search, in part because it could discover not only the potential location of the searched object (heat lamps being used to grow marijuana) but also “intimate” details such as when an occupant might be taking a hot shower. Kyllo, 533 U.S. at 38. Unlike in Kyllo, a drug dog's sniff cannot reveal any details other than the presence of contraband. In Jones, the Court held that the attachment of a GPS tracking device to a vehicle, and the use of that device to track vehicle movements for one month, was a search. 132 S.Ct. 945, 949 (2012). Unlike Jones, the use of a drug dog does not provide any information regarding petitioner's movements, and is also a momentary rather than prolonged activity. In conclusion, under the Katz test, a drug dog's sniff at the front door of a home is not a search under the Fourth Amendment because petitioner has a reduced expectation of general privacy outside the home, the activity in question is limited in scope to revealing only the presence or absence of drugs, and society does not recognize a legitimate privacy interest in the possession of contraband.

------------

Matthew G. Mueller

University of Missouri, School of Law

In Fourth Amendment "search" law jurisprudence, there seems to me to be a distinction between (1) knowingly exposing certain activities to the public ; and (2) having a reasonable expectation of privacy with regard to those activities. With (2), of course, the test can be broken down even further in asking whether the individual's subjective expectation of privacy comports with what society is prepared to consider reasonable and legitimate, but this additional analysis loses sight of the fundamental distinction between (1) and (2), and so I will not make much of the matter here. The problem, then, is how best to understand and apply the modern "search" law test. My contention, after reading the leading case law on this subject, such as Katz, Kyollo, and Ciraolo, is that these two tests are fundamentally at odds with one another, and should therefore be separated and distinguished, which is something the Supreme Court has not yet done to my satisfaction. Consider, for example, that there are really only two principled ways to proceed in applying the search law test if we insist on conflating these two competing conceptions of privacy:

  1. The person must first "knowingly expose" his activity to the public. Once this is done, then the inquiry must be made as to whether the individual might reasonably have a legitimate expectation of privacy with regard to that activity; or
  2. The reasonable expectation of privacy analysis applies even to conduct that is not "knowingly exposed" to the public.

Both alternatives, it seems to me, are somewhat confused. (A), of course, doesn't make much sense, but then again, when I read the case law, this is indeed what the holdings seem to suggest -- for example, although the defendant in Ciraolo knowingly exposed his activity to aerrial surveillance, it was suggested that he may nonetheless have a reasonable expectation of privacy with regard to such aerrial surveillance. This seems to me to confuse what is meant by the surrendering of privacy with regard to activity that is knowingly exposed to the public. (B) also is somewhat illogical because it seems to follow necessarily that a person always has a reasonable expectation of privacy with regard to activity that is not knowingly exposed to the public.  (I walk from the shower to the dresser unclothed for this very reason.) This is why in my opinion Justice Scalia gets the issue wrong in the Kyollo case. Once we concede, as we must, that the defendant in Kyollo did not knowingly expose his activity to the public, then we do not even need to reach the issue of whether the defendant had a reasonable expectation of privacy with regard to that activity. So, whether or not the means used by the police was "reasonable" or otherwise in "general public use," is totally beside the point once we acknowledge, as we must, that the activity in question was at all times preserved in the privacy of the defendant's home.

In conclusion, I would simply suggest this: Why don't we just ask whether the individual knowingly exposed the activity to the public? If he did, then government monitoring of that activity is not a "search"; if, on the other hand, he did not expose it to the public, then any government monitoring is a "search." Why get into talk of "reasonable expectations" at all? In support of my making this claim, let me proffer two defenses: (1) this is actually what the majority in Katz held; it was Justice Harlan's concurrence that injected the confusing "expectations" talk; and (2) a bright-line test such as this would better facilitate the deterrence-incentive principle under the Exclusionary Rule. Because expectation-talk is so amorphous a judicial inquiry, I am skeptical whether the deterrence-incentive argument works at all under the current Katz framework.

The Court’s current understanding of “search” law, by contrast, is seriously confused.  On the one hand, it is possible that a defendant may claim the Fourth Amendment privilege with regard to activity that he has already knowingly exposed to the public.  Now, to be sure, this may seem like a good thing for those civil libertarians, but the converse is troubling for exactly the same reason, as is nicely demonstrated in the Kyollo decision, which held that even though a defendant has kept his activity absolutely private, he may nonetheless fail in his Fourth Amendment claim if it is shown that he cannot reasonably have a legitimate expectation of privacy with regard to that activity.  This conclusion seems to me extremely dangerous.  For example, under this test, all the government must do is adopt surveillance means that are "reasonable" or in “general public use,” such as, say, a trained police dog.  So, consequently, no matter how intrusive the government monitoring may be into the person’s home, if the means used are reasonable, then the individual cannot be said to have legitimate expectation of privacy with regard to the activity being monitored.  This is really troubling, and is wholly a result of this confusing “expectations” reasoning.  A man’s home is his castle, and should not be trampled upon lightly.

-----------

Travis Gunn

William and Mary Law School

It is time to properly conceptualize the Fourth Amendment search inquiry for dog sniffs.  A dog sniff is a potential search—but defined by the property investigated, not the contraband sought.  A dog sniff is not categorically sui generis.  The nature of a dog sniff, framed by a sequential analysis, compels this conclusion: a dog is located outside of a physical property; the dog sniff pierces the property enclosure; the sniff investigates within the property.  A dog sniff is thus a non-physical “trespass” that penetrates a property.  The property breached by the non-physical trespass triggers and defines the search inquiry.

***

Many types of Fourth Amendment searches exist.  A search occurs, at minimum, when government conduct is a physical “trespass on ‘houses’ or ‘effects’ . . . and [thereby] obtain[s] . . . information.”  United States v. Jones, 132 S. Ct. 945, 949-51 & n.5 (2012).  An additional test was fashioned to accommodate the development of technology: a “search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”  Kyllo v. United States, 533 U.S. 27, 33 (2001).  Either analysis is sequential.  A court’s “first task is to establish at what point in [a situation] the Fourth Amendment becomes relevant” because a search occurred.  Terry v. Ohio, 392 U.S. 1, 16 (1968).

A dog sniff is not a physical trespass.  Jones is not directly on-point.  The “reasonable expectation of privacy” test is at the forefront of analysis.  But Jones should not be discarded as inapposite.  Despite the contention that “the Fourth Amendment protects people, not places,” Katz v. United States, 389 U.S. 347, 351 (1967), “the Fourth Amendment [nonetheless] reflects [a] close connection to property,” Jones, 132 S. Ct. at 949.  Fourth Amendment protections are defined relative to property.  Accordingly, reasonable expectations of privacy are defined by property’s physical boundaries even when no physical trespass occurs.  See Katz, 389 U.S. at 353.

Jones remains salient to non-physical conduct that replaces physical trespass.  Such a non-physical trespass occurs by mimicking a physical trespass to acquire information a physical trespass would obtain.  For a non-physical trespass, Jones identifies when the search inquiry is triggered and defines what property was (potentially) searched.  This application of Jones is appropriate in light of the history of those long-established common-law protections that created the quintessential search: physical trespass.  Jones, 132 S. Ct. at 949.  Common-law protections against physical trespass have long protected against non-physical trespass.  See generally William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 389-92 (1960) (privacy torts protecting against intrusions on an individual’s private domain).  Because of the overlap in historic common-law protections, Jones’ physical trespass analysis is applicable to non-physical trespass.

Under a sequential analysis, physical trespass triggers the search inquiry by physically breaching property—and the breached property defines the search.  See, e.g., Jones, 132 S. Ct. at 949 (physical installation of GPS device on a vehicle is a search of the vehicle).  Similarly, non-physical trespass triggers the search inquiry by piercing property that physical trespass would have breached—and this property defines the search.  See, e.g., Kyllo, 533 U.S. at 40 (thermal image viewing pierced house walls and therefore searched the house); California v. Ciraolo, 476 U.S. 207, 211-15 (1986) (visual observation pierced property line but no search of backyard occurred); Katz, 389 U.S. at 353 (electronic listening pierced telephone booth and therefore searched the booth); see also Kyllo, 533 U.S. at 35 (rejecting a “mechanical interpretation of the Fourth Amendment” distinguishing between “‘off-the-[property]’ observations and ‘through-the-[property]’ surveillance”).

***

This analytical framework is easily applied to Florida v. Jardines.  The dog sniff was a non-physical trespass: it acquired investigative scents by replacing an officer’s physical trespass (accompanied by a dog) into the home.  The sniff pierced Jardines’ home—thus the home triggers and defines the search inquiry.  Therefore, the sniff was a search if it violated Jardines’ reasonable expectation that his home prevented internal olfactory observations from being exposed to outside individuals.  Under Fourth Amendment precedent, such expectations are reasonable.  See Kyllo, 533 U.S. at 40.  The dog sniff was a search.

Yet this analysis is not currently employed to analyze a dog sniff.  A dog sniff is categorically treated as sui generis because it “does not expose noncontraband items that otherwise would remain hidden from public view.”  Illinois v. Caballes, 543 U.S. 405, 408-09 (2005); United States v. Place, 462 U.S. 696, 707 (1983).  This treatment fails in two respects.

First, the sequential analysis is ignored.  It is true that “government conduct that only reveals the possession of contraband” is not a search because “possessing contraband” is not legitimate.  Caballes, 543 U.S. at 408.  But this maxim was established regarding a chemical test to determine whether a substance was contraband.  See United States v. Jacobsen, 466 U.S. 109, 123 (1984).  This chemical test was a direct investigation that did not first pierce an “outer” property.  This differs from a dog sniff that investigates a property enclosure prior to investigating a substance.  See Caballes, 543 U.S. at 406 (dog sniff pierced car trunk); Place, 462 U.S. at 698-99 (dog sniff pierced suitcases).  This preliminary piercing must independently undergo a search inquiry.

Second, the appropriate expectations of privacy are ignored.  Direct investigations of contraband differ from investigations that pierce a property enclosure.  Direct investigations only implicate “the mere expectation” that contraband will not be identified.  Jacobsen, 466 U.S. at 122-23 & n.22.  This is readily distinguishable from the broad, legitimate expectation that property enclosures will keep private those matters contained within.  See Prosser, supra, at 389-92.  Dog sniff errors, false alerts, or residue alerts expose more than the identification of contraband.  See Harris v. Florida, 71 So. 3d 756, 768-69 (Fla. 2011).  Dog sniffs therefore violate legitimate expectations of privacy imputed to property enclosures.

Thus considered, a sequential analysis requires a search inquiry when a dog sniff first pierces a property enclosure.  When that property enclosure is a home, a dog sniff is a search.

-----------

Koria Stanton

The Catholic University of America, Columbus School of Law

Jardines v. State: The Florida Supreme Court Emphasizes the Special Status Awarded to a Citizen’s Home 

In Jardines v. State,1 the Court held “that the warrantless ‘sniff test’ that was conducted at the front door of the residence in the present case was an unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment.”2 This decision was a significant deviation from binding United States Supreme Court precedent.

As the applicable law, the Fourth Amendment provides a guard against unreasonable searches and seizures, requiring any warrants to be judicially sanctioned and supported by probable cause.4 With respect to this provision, the Jardines Court highlighted the need for strict scrutiny when a “sniff test” is conducted at a private home.5 The Fourth Amendment search cases focus on the individual’s private interest and the government’s intrusion.6 With the Supreme Court jurisprudence relying on the distinction of whether a search has occurred by analyzing the type of government activity used, the test has become unclear as the use of instrumentalities and technological devices have expanded.7

In the Eighteenth Century the scope of the Fourth Amendment protected against physical intrusions of protected areas.8 The inquiry generally focused on the object of the search itself until, the Court in Katz v. United States,9 rejected the physical trespass theory and focused rather on the individual searched.

In Katz, FBI agents used a listening device attached to the outside of a public phone booth to listen to Katz discuss illegal information on the telephone.10 The Supreme Court focused on Katz’ reasonable expectation of privacy and held that “the Government’s eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”11 Regarding the “trespass” doctrine as no longer controlling, the Courts recognized that the Fourth Amendment “cannot turn upon the presence or absence of a physical intrusion into any given enclosure.”12

The problems with the enhancement of the olfactory sense through dog sniffs began in 1983 with United States v. Place.13 Place’s luggage was seized by the police at an airport and subjected to a “sniff test” by a drug detection dog.14 The Court found the seizure to be unconstitutional, but declared the “sniff test” to be an investigative procedure rather than a search.15 Justice O’Connor deemed canine sniffs as “sui generis” because they are “so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.”16 Justice O’Connor concluded that the investigative procedure was less intrusive than a typical search and assumed that through a “sniff test,” no exposure to non-contraband items would occur.17

The next case, Kyllo v United States,18 concerned the use of a thermal-imaging device. Justice Scalia found that the use of the device to read the heat emanating from the house violated the Fourth Amendment.19 Critical to the decision was the important idea that in the home all details are intimate and the thermal-imaging device had the ability to detect just that.20

Jardines v. State from the beginning was proven to be different because it concerned drugs detected in a private home, rather than a public place.21 The Supreme Court of Florida confirmed this notion when it granted review and the majority surprisingly concluded that the rationales used in the federal “dog sniff” cases were inapplicable to a “sniff test” conducted at a private home.22 Justice Perry reasoned that the “sniff tests” conducted in the previously discussed cases were all done in a minimally intrusive manner, upon items that needed no special protection by the Fourth Amendment.23 Also, the individuals involved were in no way subjected to a level of public embarrassment because there was a degree of anonymity.24 In the present case, the “sniff test” revealed the presence of contraband and was done so in an intensive and intrusive procedure.25 Also, unlike the items in the prior federal cases, a private home is unable to be seized beforehand, which could lead to discriminatory applications of the “sniff tests” because there is not a prior evidentiary showing of wrongdoing.26 Ultimately, the Supreme Court of Florida held, “given the special status accorded a citizen’s home in Anglo-American jurisprudence, we hold that the warrantless ‘sniff test’ that was conducted at the front door of the residence in the present case was an unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment.”27

In accordance with the Supreme Court of Florida’s decision, a deviation from prior law is appropriate. Privacy interests are at the highest level at the home and should be distinguished from those instances that are not awarded the same strict scrutiny. With each case argued, the Court continues to chip away at the 4th Amendment. The private residence is the main concern of the 4th Amendment and holdings disregarding this notion will lead to dangerous consequences in this context. The law enforcement has been pushing individual’s privacy rights and will eventually have more tools to do so even further with the advances in technology. “Sniff tests” without suspicion will lead to too much discretion in the police and would leave citizens at their mercy.28 There is a need for stricter restrictions on the use of drug detection dogs in order to discontinue the abuse of privacy rights. However, this deviation will have a major impact on law enforcement who, rely on dogs keen scent of smell in order to crack down on drug use. Officials would now have to rely more so on warrants rather than on their dogs.

The prior law in dog-sniff jurisprudence sweeps too broadly with regards to the private residence. Protections against the home are necessary and “unless Fourth Amendment concepts have a value-based grounding, nothing is protected.”29 The gradual destruction of the rights guaranteed in the 4th Amendment is imminent with the rights being ignored by the government or abolished altogether. At this rate, soon individuals will be asking what 4th Amendment.  

Endnotes: 

 1 Jardines v. State, 73 So. 3d 34 (Fla. 2011).

 2 Jardines, 73 So. 3d at 56.

 3 Jardines, 73 So. 3d at 61.

 4 U.S.C.A. Const. Amend. 4.

 5 Jardines, 73 So. 3d at 44.

 6 Thomas K. Clancy, What is a “Search” Within the Meaning of the Fourth Amendment?, 70 Albany Law Review 1, 2 (2006).

 7 Thomas K. Clancy, What is a “Search” Within the Meaning of the Fourth Amendment?, 70 Albany Law Review 1, 3 (2006) (discussing the essentiality of the Court providing a comprehensive definition a search to indicate when the 4th Amendment rights are violated through government intrusion).

 8 Thomas K. Clancy, What is a “Search” Within the Meaning of the Fourth Amendment?, 70 Albany Law Review 1, 4 (2006) (discussing how physical invasions were the only way authorities could intrude at the time because of the lack of technology and other sophisticated surveillance techniques).

 9 Katz v. United States, 389 U.S. 347 (1967).

 10 Katz, 389 U.S. at 348.

 11 Katz, 389 U.S. at 350-353 (the Supreme Court’s decision permitted much leeway and uncertainty for the subsequent cases with its broad view of what constitutes a search).

 12 Katz, 389 U.S. at 347.

 13 United States v. Place, 462 U.S. 696 (1982).

 14 Place, 462 U.S. at 699.

 15 Place, 462 U.S. at 707.

 16 Place, 462 U.S. at 707.

 17 Id.

 18 Kyllo v. United States, 533 U.S. 27 (2001).

 19 Kyllo, 533 U.S. at 29.

 20 Kyllo, 533 U.S. at 37.

 21 Jardines, 73 So. 3d at 44.

 22 Jardines, 73 So. 3d at 45.

 23 Id.

 24 Jardines, 73 So. 3d at 45 (analysis of these factors were used by the Court to distinguish Jardines and emphasize the individual’s greater right of privacy while at the home).

 25 Jardines, 73 So. 3d at 48.

 26 Jardines, 73 So. 3d at 49 (the Court concluded that probable cause is the necessary prior evidentiary showing of wrongdoing that the government must establish prior to a “sniff test” at a home).

 27 Jardines, 73 So. 3d at 56.

 28 Jardines, 73 So. 3d at 49 (the majority opinion had previously emphasized that without the proper showing of probable cause, there is the possibility of discrimination in the application of tests).

 29 Thomas K. Clancy, What is a “Search” Within the Meaning of the Fourth Amendment?, 70 Albany Law Review 1, 52 (2006).

---------------

Morgan Harkins

Baylor Law School

“The Frontier of the Front Door”

INTRODUCTION

The Fourth Amendment protects an individual from an unreasonable search or seizure.[1] The Fourth Amendment does not protect locations; rather, it protects an individual’s expectation that an area will be free from police interference.[2] This subjective expectation of privacy must also be one that society is willing to recognize as reasonable.[3]

No doubt Jardines, like all protagonists in Fourth Amendment cases, did not anticipate the illegal odor of what he cultivated in the privacy of his home to transmit outside. Indeed, the Katz expectation of privacy test often turns on the second prong, which is whether Jardines was justified in relying on this sense of privacy behind the front door.[4] As a society, we have carved out certain enclaves we deem worthy of Fourth Amendment protection. Since the creation of our country, the hallowed structure of the home has been fortified by the Fourth Amendment.[5]

A.    The Court Will Not Concern Itself with Curtilage.

            As a threshold issue, the Court will need to address whether or not Jardines’ front porch, where the sniff occurred, is part of the home’s curtilage.[6] Trial courts have consistently held that home-like protections do not extend to the porch.[7] Since curtilage is a fact-intensive inquiry, the Court is likely to defer to the trial court’s findings absent clear error.[8] Instead, the Court is likely to tackle the larger question that the lower courts are struggling with, which is whether dog sniffs at the front door of a residence constitute a search.

B.     The Court Will Finally Tackle Katz.

            In determining that one’s Fourth Amendment protections “do not rise or fall with the Katz formulation,” the Court in Jones skirted the traditional reasonable expectation of privacy test, relying instead on a common-law trespass theory.[9] Here, the Government did not usurp Jardines’ property for surveillance because police occupied a lawful vantage point on the front porch.[10] Furthermore, unlike Jones, the Court in this case has not directed the parties to brief an accompanying trespass issue.[11] Therefore, it appears the Court will squarely face the “vexing problem” it alluded to grappling with in “some future case where a classic trespassory search is not involved and resort must be had to Katz.”[12]

C.    Place Is Tied to the Place Sniffed.

The seminal case that introduced the dog sniff into Fourth Amendment vocabulary is United States v. Place.[13] In Place, the Court held that a trained canine’s sniff on the exterior of the defendant’s airport luggage was not a search within the meaning of the Fourth Amendment.[14] However, Place and progeny did not announce a bright-line rule to unconditionally cover all canine investigations. Rather, the Court carefully tailored the holding to the “particular course of investigation” involved in Place.[15] Thus, in the highly-impersonal setting of JFK International Airport, where flyers anticipate routine scanning, poking, and prodding of one’s luggage, a dog getting a whiff of the exterior of our suitcases does not offend our sensibilities.[16] Likewise, our society is not particularly bothered by a brief sniff around our car’s trunk during a routine traffic stop.[17]

While we may very well have come to accept this diminution of privacy as inevitable in airports and public thoroughfares, our bedrock beliefs toward the sanctum of the home remain undiluted. Certainly, a person may expect the neighbor’s Golden Retriever to wander across their property line to sniff around the bushes or bury his bone. However, a reasonable person would not anticipate that police would repurpose that otherwise non-intruding canine into a government agent and aim its wet nose at the guarded interior of a dwelling.

D.    Sui Generis Is Only Part of the Test.

The government invites the Court to create a per se rule that a dog sniff is categorically permissible because it “discloses only the presence or absence of narcotics.”[18] However, this is not the first time this mechanical interpretation of the Fourth Amendment has been before the Court. In Kyllo v. United States, the Government argued that thermal imaging was constitutional because it did not detect “intimate details.”[19] In rejecting this contention, the Court made clear that “[s]uch an approach would be wrong in principle because, in the sanctity of the home, all details are intimate details.”[20] Furthermore, the Place classification did not rest only upon the binary nature of the intrusion; rather, the holding turned on the totality of the circumstances, including the type of area searched.[21] At the very core of Fourth Amendment protections “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”[22] Just as no exception to the warrant requirement exists for a home invasion “by even a fraction of an inch,” there likewise exists none for even a limited prodding within the home.[23]

E.     The Fourth Amendment Must Keep Pace with the March of Science.

In Kyllo, the Court disapproved warrantless use of a thermal heat imager to “explore details of the home” from afar.[24] In doing so, the Court noted that the heat technology was not merely an effective substitute for permissible visual surveillance because the home’s “amorphous hot spots” where not visible to the naked eye.[25] Like heat technology, a dog’s sniff is the only means of obtaining information regarding the interior of the home absent physical entry “into a constitutionally protected area.”[26] Also critical to the Kyllo decision was the fact that the device was capable of detecting lawful activity.[27] Specifically, the technology could detect “at what hour each night the lady of the house takes her daily… bath.”[28] Likewise, a dog’s nose can detect lawful smells, such as the pot roast Mrs. Jardines is cooking for dinner or the vanilla candle burning in the foyer.

While both heat radars and dog sniffs are “relatively crude,” the rule the Court adopts must anticipate more sophisticated systems that will develop in the future.[29] The Court can accomplish this by holding the relevant inquiry is not the technology employed; rather, the purpose to which it is put. That way the Fourth Amendment will not be tied to the quantity or method in which information is garnered; rather, the source of that information. When the source of that information is the home, this method is per se unreasonable. Anything less than affirming the Florida Supreme Court’s decision would send a highly-visible, detrimental signal that this Court has retreated from its clear ruling in Kyllo.

F.     Beware of the Drag-net Dog.

            If dog sniffs at the front door escape Fourth Amendment review entirely, they become susceptible to “drag-net” type law enforcement practices.[30] This lack of judicial oversight invites “arbitrary” and “discriminatory” police procedure.[31] The Court in Knotts envisioned a situation where “any person, perhaps every person, could be monitored by the government.”[32] Thus, in 1983, the Court warned against unfettered police practices that conjure up visions of 1984.[33] If unrestricted, police could easily abuse canine units to conduct mass, Orwellian-type inspection on no more than a whim.

CONCLUSION

While it may be difficult to refine Katz in arenas that do not boast deep roots in the common law, the home historically represents the epitome of intimate activities we anticipate will be sheltered from government interference. As such, intrusions into this clearly-delineated zone of privacy rise to the level of a constitutionally-cognizable infringement. Accordingly, police must justify this invasion as reasonable in the form of a search warrant based upon probable cause endorsed by a neutral and detached magistrate.

 

Notes:

 

[1] U.S. Const. amend. IV.

[2] See Katz v. United States, 389 U.S. 347, 351 (1967).

[3] Id. at 361 (Harlan, J., concurring).

[4] See id.

[5] U.S. Const. amend. IV. (“The right of the people to be secure in their… houses.”).

[6] Jardines v. State, 73 So. 3d 34, 36 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012).

[7] See, e.g., United States v. Larson, 63 F. App’x 416, 424 (10th Cir. 2003).

[8] See United States v. Diehl, 276 F.3d 32, 37 (1st Cir. 2002).

[9] United States v. Jones, 132 S. Ct. 945, 950 (2012).

[10] See Larson, 63 F. App’x at 424.

[11] Compare United States v. Jones, 131 S. Ct. 3064 (2011) (order granting petition for certiorari) (“In addition to the question presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”’) with Florida v. Jardines, 132 S. Ct. 995 (2012) (order granting petition for certiorari) (“Petition for writ of certiorari to the Supreme Court of Florida granted limited to Question I presented by the petition.”).

[12] Jones, 132 S. Ct. at 954.

[13] 462 U.S. 696 (1983).

[14] Id. at 707.

[15] Id.

[16] See id. at 699.

[17] See Illinois v. Caballes, 543 U.S. 404, 410 (2005).

[18] Place, 462 U.S. at 707.

[19] 533 U.S. 27, 28 (2001).

[20] Id.

[21] Place, 462 U.S. at 707.

[22] Kyllo, 533 U.S. at 31.

[23] Silverman v. United States, 365 U.S. 505, 512 (1961).

[24] 533 U.S. at 31-40.

[25] Id. at 31.

[26] Id. at 34.

[27] Id. at 38.

[28] Id.

[29] Id. at 36.

[30] United States v. Knotts, 460 U.S. 276, 284 (1983).

[31] Jardines, 73 So. 3d at 36.

[32] Cuevas-Perez, 640 F.3d 272, 279 (7th Cir. 2011), vacated, 132 S. Ct. 1534 (2012).

[33] See id.

--------

Jessica Roundtree

Mississippi College School of Law  

ISSUE

            In a case such as this, it is easy for the Justices to become distracted from the main issue before us today.  So, the issue before this court is not whether Joelis Jardines was participating in an illegal act by allegedly growing marijuana within the boundaries of his residence.  Instead, the issue that the Court is addressing is whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog constitutes a search requiring probable cause under the Fourth Amendment.  If the Court decides that the actions involved in this case constitutes a search under the Fourth Amendment, then the protections under the Fourth Amendment would be invoked.  Any ruling that the Court renders today is only applicable to the circumstances that have arisen in this case.

            I believe that the majority has become distracted with the fact that Jardines was participating in an illegal activity, growing marijuana.  The majority does not consider the implications of its decision to classify the actions of the police as a non-search.  By justifying the procedures that the Miami Dade Police Department used in this particular case, then this Court would be opening the floodgates by sanctioning officers to retrieve evidence through any means possible, even if doing so includes violating an individual’s constitutional rights.  That should not be the decision that the Court renders.  The evidence that the police obtained in this case is nothing more than “fruit of the poisonous tree” if the process that they used to obtain the evidence is flawed and illegal in its own regards.

LANGUAGE OF THE FOURTH AMENDMENT

            Admittedly, the courts travel in treacherous waters when they place restrictions upon the constitutionally guaranteed rights of an individual.  However, the majority’s opinion is particularly surprising because the court had never thought this issue even worth arguing over.  Not only does the Fourth Amendment guard against unreasonable searches and seizures, but it requires warrants to be judicially sanctioned and supported by probable cause.  The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.”  The United States has recognized and held that “at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”  So, “with few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.”[1]  The use of the trained narcotics dog, like the thermal imager in State v. Rabb[2], allowed law enforcement to intrude into the constitutionally protected area of an individual’s private residence[3].  If a homeowner cannot have the expectation of privacy in their own residence, then where can an individual expect such a right?  We doubt Congress meant to provide an allowance under the Fourth Amendment that would allow law enforcement agencies to use the dynamics in order to circumvent the intentions of protecting an individual’s constitutional rights. 

            In Katz v. United States[4], the Court ruled that Fourth Amendment protection is restricted to an individual who has a “reasonable expectation of privacy.  So, in order for the Court to make this determination, it first had to discuss the nature of the “right to privacy” and what constituted a “search” in the legal world.[5]  The ruling in Katz adjusted the previous interpretations of the Fourth Amendment’s unreasonable searches and seizures to include those immaterial intrusions that result from the use of technology.[6]  Even the use of wiretapping, which does not include a physical intrusion into someone’s personal space, constitutes a search.[7]  Justice Harlan’s provided a formulation that the courts since have looked to be a proper meaning of the Fourth Amendment.

            As the Court's opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.[8]

               So, a search has become recognized as occurring when 1) a person has an expectation of privacy in the thing searched and 2) society believes that the expectation of privacy is reasonable.[9]  Under the standard set forth in Katz, Jardines, as a private homeowner, did possess an expectation of privacy.  Furthermore, Jardines’ expectation is reasonable because society would deem an individual’s privacy interest in their private residence to be reasonable.  Therefore, Jardines expectation of privacy in his residence should be free from unreasonable government intrusion.  However, the court in Katz did not fully address the issue of whether an individual possesses an expectation of privacy when he or she is participating in illegal activities.  Some courts have said no.  Those courts believe that when a person is participating in activities that have been deemed illegal by law, then the person committing those activities, even if it is within the confines of a personal residence, do not have an expectation of privacy that would allow those activities to be protected under the Fourth Amendment.

            However, recently, the Supreme Court expanded its ruling in Katz through United States v. Jones[10] by holding that a search occurs when law enforcement trespasses on an individual’s property for information gathering purposes, even if a person does not possess a reasonable expectation of privacy.  In Jones, the Court examined whether the Government’s attachment of a GPS device to a motor vehicle, in order to monitor the vehicle’s movements, constituted a search under the Fourth Amendment.  The Court said yes.  Like Jones, this case deals with both government trespassing on private property and a private citizen’s reasonable expectation of privacy against the government.  But despite my concerns with Jones, this case does not possess the complications regarding electronic devices.  However, the majority in Jones did not address the inevitable question concerning the reasonable expectation of privacy inquiry that is being presented in the case before us today.  This case deals with the physical presence of law enforcement on an individual’s doorstep without that person’s permission. 

            No matter whether the court decides to apply the court’s ruling in Katz or Jones, it will reach the same conclusion: the behavior of the police, in this case, constituted a search under the Fourth Amendment of the United States Constitution.  

REASONABLE SUSPICION vs. PROBABLE CAUSE: Which category does the unverified tip fall under?

            The Fourth Amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.”[11]  So, when on November 3, 2006, the Miami-Dade Police Department received an unverified “crime stoppers” tip, which contained information that marijuana was being grown, that led them to the home of Joelis Jardines.  Exactly one month and three days later, two detectives, with the assistance of a trained drug detention dog, approached Jardines’s residence.  When the dog and its handler approached the front door, the dog signaled that it detected the scent of narcotics.  Does the unverified tip constitute probable cause or reasonable suspicion? 

            Reasonable suspicion is based on specific and articulable facts coupled with rational inferences from those facts.[12]  Reasonable suspicion is nothing more than a hunch.  If a reasonable person would believe that someone else has been or is about to be engage in criminal activity, then this standard would be satisfied.  But what is a reasonable person?  Does a reasonable person have to possess a college degree or just an understanding of what is occurring?  Would someone who has never experienced the loss of a child be a reasonable person in determining why a parent would kill the person who raped, tortured, and murdered their daughter?

                Probable cause is best-defined as a “reasonable belief that a person has committed a crime” or “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.”[13]  Terry v. Ohio[14] allows for an officer to perform a “Terry stop[15]” if he or she has reasonable suspicion to believes that the individual has been, is, or is about to be engaged in some sort of criminal activity.

                The language of the Fourth Amendment is not to be misconstrued since it is clear; textually, the Fourth Amendment requires probable cause.  If the Founding Fathers had deemed the Fourth Amendment to require another evidentiary standard, then that standard would be listed in the United States Constitution instead of the one provided.  Furthermore, this Court has not indicated that a search for evidence in a criminal prosecution[16] can be based on any evidentiary standard other than probable cause.  Therefore, probable cause is the appropriate evidentiary standard, not reasonable suspicion, to use regarding the Fourth Amendment. 

PRECEDENT CONCERNING DOG “SNIFF TEST” & ANALYSIS CONCERNING WHETHER THE ACTIONS OF THE POLICE OFFICER ARE CONSIDERED TO BE A “SEARCH” UNDER THE FOURTH AMENDMENT?

            There are three cases in which the United States Supreme Court has addressed “sniff tests.”  First in United States v. Place[17], the Court addressed whether police, based on reasonable suspicion, could temporarily seize a piece of luggage at an airport and then subject the luggage to a “sniff test” by a drug detection dog.  Police became suspicious due to Place’s behavior and, subsequently, seized his luggage.[18]  After subjecting the luggage to a “sniff test,” cocaine was found inside the bag.[19]  Similar to the facts in Place, in City of Indianapolis v. Edmond[20] and Illinois v. Caballes[21], the United States Supreme Court addressed whether police, during the course of a lawful traffic stop, could subject the exterior of the vehicle to a “sniff test.”  Ultimately, in both cases, the Court held that, under these particular facts, the “sniff test” was less intrusive than a typical search and very limited in the information that it provides to law enforcement.[22]  The particular course of investigation that the agents intended to pursue here-exposure of respondent’s luggage[23], which was located in a public place, to a trained canine-did not constitute a “search” within the meaning of the Fourth Amendment.[24]  According to the precedent established, would the “sniff test” be applicable to the residence of an individual who is suspected of being engaged in criminal activity.

             No because the distinction between a trained police canine being outside of the door of someone’s residence and walking around an airport or around a legally stopped car searching for illegal substances is important.  A police canine goes through extensive training in order to be able to assist various law enforcement agencies during a coordinated effort by detecting narcotics.  The process involved in this case included multiple police vehicles, multiple police officers, and an experienced dog handler and a trained narcotics dog.[25]  The on-the-scene process-i.e., the preparation for the “sniff test,” the test itself, and the aftermath, which culminated in the full-blown search of Jardines’ home-lasted for hours.[26]  There was no anonymity for Jardines’ residence and the “sniff test” was in plain view for anyone to witness the spectacle.[27]  If a police officer walked up to your car, opened the door, got in, and accused you of selling drugs would you be upset?  Would it be any better if a police officer brought a trained police canine and multiple police vehicles onto your property to smell around your car in plain view of the entire neighborhood? 

            I agree with the lower court’s understanding of the dog’s “sniff test”[28] at the residence of Jardines being an intrusive procedure.  The events that occurred that day were nothing short of a spectacle that will likely result in Jardines suffering some degree of humiliation and embarrassment.[29]  Even though Jardines may not be legally charged with any crime by the police officers, his neighbors will perceive all of these activities as an official accusation of a crime.[30]  The Miami Dade Police Department not only relied upon the information that they received in the unverified tip, but they acted upon it as well.  The act of a police officer taking a canine, which has been thoroughly trained to detect narcotics and is seen as a police officer in its own regards, to someone’s front door determine whether that individual is participating in illegal activities constitutes a search.  If it does not constitute a search and police officers are allowed to conduct “sniff tests” without any showing of evidentiary wrongdoing, then all we have is a police officer using the resources of the police department in order to satisfy their own desires, which could include harassing neighbors or other individuals that they may not find to their liking.

            The fact that the police were aware that the tip was unverified should not be used as an excuse or justification to allow law enforcement to freely disrupt an individual’s constitutionally guaranteed rights.  Since the police went to the extent of arriving at the home of Jardines and creating a spectacle, then it was the duty of the law enforcement agencies to ensure that their procedures were legal and therefore would withstand any questions or scrutiny that may occur at a later date.

CONCLUSION

            Due to the aforementioned reasons, and under these facts, the actions of the law enforcement agencies constituted a “search” under the Fourth Amendment.

 

Endnotes

 

[1] Kyllo, 533 U.S. at 31.

[2] 920 So. 2d 1175 (Fla. 4th DCA 2006).  The Fourth Amendment provides for a “firm line” concept, which would be established at the front door of the residence.  Rabb’s argument concerning the “firm line” is that since the source of the marijuana’s smell was located inside the home, then the smell that permeated outside of the home should be considered an “intimate detail” of the home.  So, that smell should receive protection under the Fourth Amendment.  Therefore, the use of dog to smell narcotics at the door of an individual’s residence is thus considered to be a search.

[3] Distinguishable from the Court’s ruling in Rabb is the ruling found in Stabler v. State, 990 So. 2d 1258 (Fla. 1st DCA 2008).  In Rabb, the “sniff test” occurred at an individual’s private residence.  In Stabler, the “sniff test” occurred at an individual’s apartment door.  An apartment is considered a temporary dwelling; therefore, it does not receive the same amount of protection of a private residence. 

[4] 389 U.S. 347 (1967).

[5] Katz v. United States, 389 U.S. 347 (1967).

[6] Id. at 351.

[7] Id.

[8] Id. at 361.

[9] Id.

[10] 565 U.S. ...(2012).  This case has been decided but the court’s opinion has not been issued a number.

[11] U.S. Const. amend. IV. 

[12] Garner, Bryan. Black’s Law Dictionary. 9th ed. (2009).

[13] Garner, Bryan. Black’s Law Dictionary. 9th ed. (2009).

[14] 392 U.S. 1 (1968).

[15] A “Terry stop” is when a police officer stops and briefly detains an individual that he or she believes has been, is, or is about to be engaged in some sort of criminal activity.  

[16] The police were at Jardines residence looking for marijuana.  If marijuana were found on the premises, then Jardines would face criminal prosecution.  So, the facts in this particular case are similar to the rulings that this Court have rendered in the past concerning criminal prosecutions.  Furthermore, there were no special needs of the law enforcement that would have rendered this situation an exception to the precedent that has been set forth by this Court.

[17] 462 U.S. 696 (1983).

[18] Id.

[19] Id.

[20] 531 U.S. 32 (2000).

[21] 543 U.S. 405 (2005).

[22] Id.

[23] In Edmond and Caballes,  this statement would refer to a vehicle instead on the luggage.

[24] Id.

[25] Jardines v. State of Florida. Supreme Court of Florida Brief, No. SC08-2101(April 14, 2011).

[26] Id.

[27] Id.

[28] A “sniff test” is where a dog is brought to the boundaries of a particular location, such as a car or in this case a residence, and is allowed to sniff around the premises in order to determine if illegal activities, in this case the growing of marijuana, is occurring on the premises.

[29] Id.

[30] Id. at 706-07.

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Sean Henricksen

St. Mary's University School of Law

I. Introduction

The Supreme Court of the United States is set to decide whether a dog sniff outside a home, in order to detect illegal drugs inside the home, is Constitutional under the Fourth Amendment and whether that sniff provides probable cause to obtain a search warrant. In 1983, the Supreme Court first heard a case involving a dog sniff of luggage seized in an airport in United States v. Place and held that the sniff did not violate the Fourth Amendment.[1] In 2005, the Supreme Court again visited the issue of whether a dog sniff violated the Fourth Amendment in Illinois v. Caballes.[2] This time the sniff was of a car during a routine traffic stop and the Court again held that the sniff was Constitutional.[3] Currently, the circuits are split as to whether a similar sniff violates the Fourth Amendment when it takes place at a person’s residence.

II. The Fourth Amendment, what it protects, and what it does not protect

According to the plain language of the text, the Fourth Amendment protects people and their possessions from unreasonable searches and seizures. The amendment also gives the standard for issuing a warrant, probable cause, and states that the warrant must specify what the government will search or seize. The argument against a dog sniff being Constitutional is that a dog sniff is a search.

In Kyllo v. United States, the Court looked to previous cases involving searches under the Fourth Amendment to see why the Court had made the rulings it had.[4] Justice Harlan described the Court’s principle in a concurrence in Katz v. United States, stating, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”[5] The Kyllo court also noted that the Court used the same principle in later cases.[6] The Court weighs the interest of the government in conducting a search against an individual’s expectation of privacy, so long as society recognizes that individual’s expectation of privacy as reasonable.[7]

The Court has noted that not every search falls under the protection of the Fourth Amendment. In Illinois v. Caballes, the Court stated, “Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.”[8] This follows from the application of the Katz test. If the Court weighs the government’s interest in conducting a search against an individual’s expectation of privacy recognized as reasonable by society, then any governmental interest will outweigh an expectation of privacy that society does not recognize as reasonable. The Court continues,  “[w]e have held that any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus, governmental conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest.’”[9]

The level of protection provided by the Fourth Amendment also varies by the object or location the government seeks to search. “It has long been recognized that reasonable expectations of privacy vary according to the context of the area searched.”[10] How the Fourth Amendment protects a person’s house may differ from how it protects a person’s luggage. Since before the founding of the United States, society has seen a man’s home as his castle and our courts have given him more freedom at his home than any other place.[11] Society recognizes a higher expectation of privacy at his home than anywhere else. Because of this, the Fourth Amendment protects people from searches of the home more than a search of anything else.[12] In Kyllo v. United States, the Court stated, “the Fourth Amendment draws ‘a firm line at the entrance to the house.’”[13] It does not follow however, that a person has an absolute right to privacy in his home. An officer has the right to knock on a person’s door during an investigation.[14] If that officer sees something illegal through a window, the Fourth Amendment will provide no protections against what the officer saw.[15]

In United States v. Place, the Court stated that a sniff by a drug detection dog is sui generis.[16] Unlike any other method of detecting, an alert by a trained drug detection dog is binary.[17] Either there is an alert to contraband or there is no alert. The sniff by the dog detects particles of drugs that have escaped the object or place the dog has sniffed. While the dog smells contraband inside the object, it is doing this by detecting the particles that have escaped from the object.[18]

III.  A dog sniff of the outside of a person’s house is not a search under the Fourth Amendment so a warrant is not necessary to perform the sniff

The Fourth Amendment protects people from searches of, “their persons, houses, papers, and effects.”[19] When considering a Fourth Amendment case the Court is concerned with (1) whether there was an entry into a home[20] and (2) whether a method of detection reveals intimate details inside the home.[21] The Court has also stated that, “[i]n the home…all details are intimate details.”[22]

The Court has determined that Fourth Amendment protection of one’s home begins at the home’s entrance.[23] A sniff outside of a person’s home, similar to the sniff the Supreme Court will review in Jardines v. State, takes place in a public area and does not cross over the threshold of the person’s home.[24] Similarly, the dog’s nose or even its sense of smell does not enter into the home. The dog is detecting that which has already escaped the home. Since the dog’s sniff does not cross the boundary of Fourth Amendment protection, the dog’s sniff outside a person’s home does not implicate the Fourth Amendment.

Even if the detection of an odor outside of a person’s home by a device were to implicate the Fourth Amendment, the binary fashion in which a dog alerts only to contraband or does not alert at all would fall under the exception created by the Supreme Court. A dog’s alert does not implicate the Fourth Amendment when it does not alert to legal activity. While all details within a home are intimate, they are not all afforded Fourth Amendment protections. Contraband in particular does not receive protection from the Fourth Amendment. Even if contraband is located inside luggage or a car, which normally carry Fourth Amendment protection from searches, contraband falls outside Fourth Amendment protection. If dogs alerted to both contraband and to non-contraband, there would be little question of a dog sniff’s unconstitutionality. While it is unquestionable that a dog cannot only smell contraband within the home, but can also smell food that is cooking inside and other legal activity, the dog is trained only to alert when it smells contraband. This means that the dog only alerts to the officer in charge of the dog if contraband is present. Since the dog does not tell the officer of legal activity that it may smell the government is not violating the Fourth Amendment rights of the person whose house the dog is sniffing.[25]

IV.  Conclusion

While Supreme Court decisions have heard cases involving dog sniffs of objects that have differing levels of Fourth Amendment protections, in each case the Court has determined that, despite the varying levels of protection, the sniff is not a search under the Fourth Amendment.[26] Dog sniffs do not implicate the Fourth Amendment by crossing the threshold of a person’s home because they detect only particles that have themselves escaped the home.[27] The sniff also avoids Fourth Amendment review by only alerting to contraband, which the Fourth Amendment does not protect.[28] In none of its decisions has the Supreme Court wavered from the position it took on dog sniffs in Place. On the contrary, the Court stated in Caballes that the critical element that makes use of a thermal imager by the government a search under the Fourth Amendment is the fact that it can detect legal as well as illegal activity, an element the dog sniff does not possess.[29]

By utilizing the unique qualities of a dog alert to drugs, law enforcement is able to accomplish its goal of reducing the, “possession, use, and distribution of illegal drugs [which represents] ‘one of the greatest problems affecting the health and welfare of our population,’”[30] without violating the main policies for passing the Fourth Amendment: the sovereignty of a person’s home[31] and respect for the privacy of the home.[32]

Endnotes:

 

 

 

[1] United States v. Place, 462 U.S. 696, 706 (1983).

[2] Illinois v. Caballes, 543 U.S. 405, 407 (2005).

[3] Id. at 409.

[4] Kyllo v. United States, 533 U.S. 27, 32-33 (2001).

[5] Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v. United States, 389 U.S. 347, 361(1967)).

[6] Kyllo, 533 U.S. at 33.

[7] Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v. United States, 389 U.S. 227, 353 (1967)).

[8] Illinois v. Caballes, 543 U.S. 405, 408 (2005) (citing United States v. Jacobsen, 466 U.S. 109, 123 (1984)).

[9] Id.

[10] United States v. Roby, 122 F.3d 1120, 1124 (8th Cir. 1997).

[11] Jardines v. State, 73 So. 3d 34, 45-46 (Fla. 2011).

[12] Id. at 45.

[13] Kyllo v. United States, 533 U.S. 27, 40 (2001) (citing Payton v. New York, 445 U.S. 573, 590 (1980)).

[14] Jardines, 73 So. 3d at 46.

[15] State v. Ortiz, 600 N.W.2d 805, 819 (Neb. 1999).

[16] United States v. Place, 462 U.S. 696, 707 (1983).

[17] Respondent’s Brief on the Merits, at 32, Jardines v. State of Florida, No. SC08-2101 (citing Stabler v. State, 990 So.2d 1258, 1263 (Fla. Dist. Ct. App. 2008)).

[18] Brief of Wayne County, Michigan as Amicus Curiae Supporting Petitioner, at 16, State of Florida v. Jardines, No. 11-564.

[19] U.S. Const. amend IV.

[20] Kyllo v. United States, 533 U.S. 27, 46 (2001).

[21] Illinois v. Caballes, 543 U.S. 405, 409 (2005).

[22] Kyllo, 533 U.S. at 37.

[23] Kyllo, 533 U.S. at 40 (citing Payton v. New York, 445 U.S. 573, 590 (1980)).

[24] Jardines v. State, 73 So. 3d 34, 37-8 (Fla. 2011).

[25] Illinois v. Caballes, 543 U.S. 405, 409 (2005) (stating that the fact that the thermal detector was able to detect lawful activity was critical to its decision).

[26] See, United States v. Place, 462 U.S. 696, 707 (1983) (holding that a dog sniff of luggage is not a search under the Fourth Amendment); See also, Illinois v. Caballes, 543 U.S. 405, 409 (2005) (holding that a dog sniff of a car during a traffic stop is not a search under the Fourth Amendment).

[27] Brief of Wayne County, Michigan as Amicus Curiae Supporting Petitioner, at 16, State of Florida v. Jardines, No. 11-564.

[28] Illinois v. Caballes, 543 U.S. 405, 408 (2005) (citing United States v. Jacobsen, 466 U.S. 109, 123 (1984)).

[29] Caballes, 543 U.S. at 409.

[30] United States v. Scott, 610 F.3d 1009, 108 (8th Cir. 2010) (citing Harmelin v. Michigan, 501 U.S. 957, 1002 (1991)).

[31] Kyllo v. United States, 533 U.S. 27, 46 (2001).

[32] State v. Ortiz, 600 N.W.2d 805, 815 (Neb. 1999) (citing Wilson v. Lane, 526 U.S. 603(1999)).

 

-----------

Release the Hounds!

Rami Hernandez

Boyd School of Law, UNLV

            Once again, this Court is confronted with a question involving the search tactics of the police.  As always, the police are finding new ways to push the boundaries of what constitutes a reasonable search under the law.  Earlier this year, this Court in United States v. Jones ruled that GPS tracking of an individual’s automobile to track his movements without a warrant in order to build a case was unconstitutional. 

            In Florida v. Jardines, the question before the Court deals with a search that is far less intrusive than Jones and very specific to a particularized type of illegal behavior:  illegal drug trafficking and use.  Narrowness, however, is not an excuse in and of itself to toss out the Constitution.  As in Jones, the question of what constitutes a reasonable search should be carefully examined because the right to privacy is fundamental to the working of a free society.

            Florida v. Jardines presents this Court with a similar question to Jones:  what constitutes a reasonable expectation of privacy?  Unlike Jones, the issue here does not deal with a “new fangled” technology that can trace one’s movements from far away.  Instead, the technology here is biological:  a drug-sniffing canine in the proximate vicinity of the suspect.  While this may seem like an important distinction in means (mechanical vs. living; close vs. distant), the end is essentially the same:  a warrantless search results in the arrest and conviction of a criminal defendant.  Is this type of a warrantless search acceptable?  Does it require probable cause?  Where does it stand on the continuum of cases dealing with this specific question?  How should the Court resolve the matter in light of Jones?

            Here, the Court is presented with an ideal opportunity to set a new bright line on the question of police warrantless searches.  The efficacy of the dog in Jardines, Franky, is without question.  The statistics show that he has had 399 positive tests out of 656 searches for an outstanding success rate of 61%.  Nonetheless, the results of Franky’s actions cannot trump one’s inherent rights.  Fundamentally, the reasonable expected privacy rights of the individual cannot be subservient to the success rate of catching the “bad guys.”  As such, the Court should uphold the lower court’s decision upholding the trial court’s suppression of the evidence acquired by Franky’s warrantless searches as the searches lack probable cause.

Legal Question and Applicable Law

            A single question lies before this Court:  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?

            The applicable law is the Fourth Amendment.  The Court has stated that the touchstone for Fourth Amendment cases is reasonableness.   The Supreme Court has developed a two-part test to determine whether someone has a reasonable expectation of privacy:  “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. , 389 U.S. 347 (1967) (Harlan, J. concurring).  Society’s expectations frame many of the questions involving whether a search is reasonable.  Here, the Court will have to determine whether using a drug-sniffing dog in front of someone’s home constitutes a reasonable search.

Facts and Procedural History

            On November 23, 2006, a Miami-Dade police detective received a tip that Joelis Jardines was growing marijuana plants in his home.  Jardines v. State, 73 So.3d 34, 37 ( 2011).  One month later, the detective came to Jardines’ home at 7 a.m. and watched it for fifteen minutes.    From his view, he could discern no activity:  there was no car in the driveway and the home’s blinds were closed.    After the fifteen minutes had elapsed, Franky, the drug-sniffing dog, arrived with his handler.    The handler placed the dog on a leash and took him to the front of the home.  The dog then detected the odor of narcotics.    The police detective then went to the front door and smelled marijuana.    He also noticed that the air conditioning had been running without switching off, a sign that high-intensity heat labs are operating in the home.    These lamps are used to grow marijuana and cause the air-conditioning unit to run continuously.   

            The detective than prepared an affidavit for a search warrant that the court subsequently issued.  at 37-38.  A search was conducted, marijuana was found, and Jardines arrested for growing marijuana plants.  Id at 38.  Jardines moved to suppress the search at the trial court level, and the judge granted his motion based on the Florida District Court of Appeals decision in State v. Rabb.    The State then appealed to the District Court, which overturned the decision.    In its ruling, the District Court stated that Rabb did not apply because the officer had “every right” to go to Jardines’ front door.    Moreover, the trial judge should have found that substantial evidence for probable cause existed, and the evidence should not have been suppressed as its discovery was inevitable.    Jardines then appealed to the Florida Supreme Court, citing a conflict with Rabb, and the Court granted review.  at 38-39.

            The Florida Supreme Court overturned the District Court’s decision.  To begin, the Court cited three drug-sniffing dog cases that allowed those types of searches and distinguished them from the present case.  at 40-42.  Each of the cases dealt with a drug sniff in public places, such as screening luggage at an airport or searching a car at a traffic stop, and none dealt with the home.    The Court therefore concluded that none of those cases directly applied to the present case and could not be used as a basis for allowing the search of Jardines’ without a warrant.  at 44. 

            The Court also found that a person’s home is his or her “castle” and the Fourth Amendment protects the privacy of the home.  at 45-46.  Further, the Court pointed out that unlike the previous drug-sniffing cases, the home is not something which can be seized and returned to the individual like a piece of luggage or an automobile and that a sniff test is not “ a casual affair.”  at 46, 49.

            The Court further used the U.S. Supreme Court’s suppression of evidence in the thermal imaging cases as further support of its view.  at 43.  In Kyllo v. United States, the Florida Supreme Court pointed out that the U.S. Supreme Court had disallowed the use of warrantless thermal imaging of someone’s home to find marijuana plants as it constitued an unreasonable search because of the expectation of privacy one has in his or her home.   

            Finally, the Court noted that the standard for granting warrant to search of one’s home has to be based on probable cause and not mere reasonable suspicion.  at 54.  In this case, the officer did not have probable cause to search the home via dog-sniff without prior evidence of wrongdoing.  at 49. As a result of all of these factors, the Florida Supreme Court suppressed the evidence obtained in the Jardines’ case as the detectives searched Jardines’ home without probable cause.  at 54.

            The case was then appealed to the United States Supreme Court, which granted cert.  v. Jardines, 132 995 (2012).

Analysis

            One issues is before this Court, and I support an affirmation of the Florida Supreme Court’s ruling.

Issue # 1:  Dog-sniff without probable cause

            The Court has yet another opportunity, as it did in United States v. Jones earlier this year, to reaffirm the boundaries the police have respect when it comes to searching one’s home.  The standard, as laid out in Katz, is both the individual’s and society’s reasonable expectation of privacy.

            To come to its conclusion, this Court should first follow the reasoning laid out by the Florida Court in its analysis of that the Court’s previous dog-sniffing cases decisions do not apply to the present case.  The Florida Court did an excellent job delineating the difference between a search of luggage at an airport and a search of a car at a traffic stop.  The previous drug-sniffing dog cases this Court decided involved public places where the standard is “reasonable suspicion.”  This Court has always held, as the Florida Court pointed out, that the standard to enter into one’s home is probable cause.  This has always been the expected reasonable standard from the beginning of the republic.  The fear of the British regime was that the government had carte blanche to enter one’s home.  That is why the Fourth Amendment was added to the Constitution:  to protect the citizen’s most private and most autonomous place.  A home is different than a car or a piece of luggage.  It is a permanent fixture where one seeks refuge and an escape from the world.  Consequently, it has always had superior protection to moveable or transient objects.  This both what the individual citizen and society hold true.

            Further, this Court should follow the reasoning set forth in Jones and Kyllo that physical intrusions are searches requiring probable cause and ultimately a warrant.  One’s home, as the Florida Supreme Court pointed out, is one’s castle.  One places a door in front of the home to protect from intruders and to safeguard what goes on behind that door.  The government has no right to cross that door and make itself present in one’s home without the occupant’s permission or the permission granted by a search warrant because the officer has probable cause.  In Jones, this Court found 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.”  132 945, 949 (2012).  That same analysis should apply to the present case because a dog-sniffing investigation is even more intrusive a GPS tracking device.  Instead of tracking one’s movements, a dog-sniff actually goes into the person’s home and past the front door, the place both the individual and society believe most reasonably protected from unwarranted searches. 

               In addition, this Court should find that dog-sniffing is a more intrusive action than the thermal imaging deemed unconstitutional in Kyllo because a dog-sniff requires the police to actually physically go into the person’s property and not just track the heat emanating from the ome.  If the government cannot search from a distance as it did in Kyllo, it certainly does not have the right to conduct the search up close. Going inside one’s home without a warrant is the ultimate line the police cannot cross.  As in Kyllo, it does not matter that the police never physically set foot into Jardines’ home.  When they brought extra-sensory equipment to the house, in this case Franky, they crossed the threshold placed by this Court and effectively placed themselves inside the home.  This Court should thus stay consistent with its previous rulings and suppress the evidence.

            The counter to the arguments against dog-sniffing searches is that the police are only investigating what is in “plain sight.”  If the marijuana is in “plain sight” it would not require the heightened senses of a police canine to establish the presence of the controlled substance inside the home.  “Plain sight” means what one can easily observe from the outside.  If plain sight were extended to include the front of one’s home, then what would be the limits of the investigation?  Would it extend to one’s backyard or to one’s garage?  Where does the line for plain sight begin and end?  One’s home is one’s property.  These lines are not capricious and arbitrary.  They are meant to create a zone of privacy and protection.  That is why one cannot go onto another’s property without permission.  For police, that permission requires either the consent of the owner or a judicial warrant to go inside.  In this case, the police went inside Jardines’ home in a way that went beyond “plain sight.”  As a result, the drug-sniffing search is effectively an invasion of the inside of one’s home outside of plain sight and this Court should repudiate such practices.

Conclusion

            The standard this Court has used for searches of one’s home has been the reasonable expectation of privacy.  It is reasonable to believe that the government should not be allowed to enter one’s home without permission.  Here, a dog-sniffing investigation is an invasion of one’s home that this Court has in previous rulings deemed to be unreasonable and thus not permissible.  This Court has an opportunity for the second time this year to once again draw the line between acceptable and non-acceptable government intrusions.  By denying the police the ability to search one’s home using a drug-sniffing dog without a warrant, this Court will once again reaffirm the fundamental right a citizen has to his or her freedom from unreasonable searches and seizures.           

-------------

Jerry Reggens

New York University Law

I. Previous drug sniffing cases

The Supreme Court has heard four dog sniffing cases in the past: two involved a traffic stop of a vehicle; one involved airport luggage, and the last involved a package in transit.  What makes this case unique is that the drug sniffing occurs near a private residence, implicating curtilage issues. In the past, drug sniffing dogs have not imposed serious 4th amendment problems. However, the court has consistently emphasized that the home, mans’ castle, is afforded a special place in the law. Homes are simply entitled to greater privacy rights than public spaces or automobiles. The court is thus left in a conundrum: not wanting to restrict the use of drug sniffing dogs which has become common practice, while at the same time needing to protect the robust privacy rights revolving around the private home.

II. Kyllo analysis

I do not think that the recent Jones case is relevant to the Jardine’s case, because the court is unlikely to apply the same sort of physical trespass analysis. This case really is identical to the Kyllo case, and the court thus should be forced to confront the Kyllo question: are police searching when they collect information via uncommon techniques that cannot be gathered otherwise.

In the end, the court will likely dodge the fundamental issue in Kyllo, namely the import of technological advancement. Drug sniffing dogs do not implicate the same technology questions the court has likely been passing in not taking cases like Kyllo. People generally know that drug sniffing dogs are in use, and the information gathered by a dog’s natural senses is distinct from the thermal readouts used in Kyllo. 

----------------

Joe Regalia

University of Michigan School of Law

As a preliminary point, the recent U.S. v. Jones case should not be applicable to the Jardines situation. Jones skirted the "reasonable expectations" question by finding that the placing of a GPS device on a vehicle constituted a consummate physical trespass that was firmly within the auspices of traditional--and unmodified--4th amendment protections of privacy. In the words of Justice Scalia, the "Government physically occupied private proper­ty for the purpose of obtaining information." In sharp contrast, here in the Jardines case, private property is not physically occupied. A drug sniffing dog that does not enter private property cannot constitute "set[ting] foot upon [another's] close without his leave." Jones.  

The 9th Circuit case of Kyllo v. U.S. is much more on point, and will likely be influential for the Court. Without the straightforward trespass framework to rely on, the Justices will have to wrestle with the "reasonable expectations" doctrine. Kyllo is similar to the case at hand, but instead of electronic technology there are meticulously trained canines. The Kyllo court says in relevant part:

[O]btaining by sense-enhancing technology any information regarding the home’s interior that could not otherwise have been obtained without physical intrusion into a constitutionally protected area ... constitutes a search—at least where ... the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

There can be little dispute that drug sniffing dogs are a detection method "not in general public use." Furthermore, there can be little dispute that drug sniffing dogs can detect information regarding the "interior" of a home via this sense enhancing method--namely the presence of illegal drugs--that "could not otherwise have been obtained without physical intrusion." Thus, Kyllo stands as a persuasive analogy for the case at bar. A drug-sniffing dog is likely to violate reasonable expectations of provacy, because it uses a method not in common public use to divine intimate details about private matters occurring in the home and curtilage.

Kyllo also defeats other potential arguments that drug-sniffing dogs should pass constitutional muster: first, that a dog senses residue on the "outside" rather than inside of a home (so that the information is arguably unprotected) is as unpersuasive as was the argument that thermal imaging only detected heat emanating "outside of a home" in Kyllo and soundwaves external to a protected area in Katz. The court saw the distinction as meaningless, because reasonable expectations of privacy were still violated. Also, it places citizens at the mercy of new technologies and methods. Similarly, any argument that "private" information is not detected--only illegal information--is not persuasive, as the court has resoundingly held that "in the sanctity of the home, all details are intimate details" worthy of protection. Kyllo.

As a final note, the lower court decision in Jardines seems to blend the 4th amendment question quite a bit, using questionable reason, in part, to reach its decision. The Court states that:

Such a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many—neighbors, passers-by, and the public at large—will be viewed as an official accusation of crime. Further, if government agents can conduct a dog “sniff test” at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct.

This argument could equally be raised anytime a police officer surveys a home, or asks an individual a question on the street. The would have us open a flood-gate of pandoric portions: would constitutional intrusion happen anytime police officers draw attention to an individual? Such an eventuality would stretch the 4th amendment beyond all reason. While, in theory, it is true that these "intrusive" factors such as embarrassment would seem to bear on the question of privacy, considering such factors creates an unjusticable standard. The line for privacy must be much brighter than simply "anytime someone is embarrassed by the presence of police officers." There must be a real threshold, and the Kyllo and Katz courts have setup this the justicable line: when law enforcement gather information from within an individual's home using methods not in common public use, the public's reasonable expectation of privacy is violated. This test is not only a manageable standard, but it makes equitable and logical sense. The reasonable expectations standard is about the reasonable expectations citizens have pertaining to their privacy, not about whatever expectations of privacy the court might fathom on a personal level.

While it is possible that a drug-sniffing dog is perfectly permissible with probable cause, such an act certainly constitutes a search within the meaning of the 4th amendment jurisprudence.

------------

Helene Geritas

William and Mary Law School

The Jones case should not be applicable here, because, critically, the Jones case dealt with a physical trespass onto private property. By placing a tracking device on the undercarriage of a personal vehicle, a clear property right was violated by the state. Alternatively, in this case there is no break at the close: there simply is no trespass. Thus, the question of whether a search has occurred turns on whether the Kyllo-like reasonable expectation of privacy has been breached.

Stated simply, this standard is that the state must procure a warrant if their investigation violates what the Justices find is a "reasonable" expectation of privacy held by all citizens. Thus, whether there is a reasonable expectation of privacy to the odoriferous information permeating a home. 

I posit that there is no such reasonable expectation of privacy. The key case here is Kyllo, where the 9th Circuit found thermal imaging to constitute a search. While it is true that drug sniffing dogs may qualify as "a device that is not in general public use" it is questionable whether dog sniffing allows the government to "explore details of a private home that would previously have been unknowable without physical intrusion."

It could be argued that, by using rare technology to collect "smell data" that reveals narcotics inside a home, the government is exploring details of the home otherwise unknowable. But the key here is the word "details" used by the Kyllo court. The ONLY information gathered is the residue of marijuna: there is no risk of the government seeing or accessing any other details whatsoever. This is far afield from voyeur law enforcement peeping on a home's inner happenings. This is simply a yes or no test for drugs, which cannot be said to intrude upon the "private details" of a home.

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Sarah N. Briner

Phoenix School of Law

Question:  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?

A. The dog sniff, in itself, is not a search implicating Fourth Amendment protection.

            The Fourth Amendment ensures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”  The purpose of this language is to protect individuals from unwarranted government intrusions that disturb the sanctity inherent to one’s private residence.  However, the question of whether a search truly exists to begin with is not always easy to answer.    

i. There is no legitimate interest in privacy on one’s front door step.   

            A search occurs when police conduct violates a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360 (1967).  The respondent must exhibit an actual, subjective expectation of privacy.  There must also be an objective expectation of privacy that society, as a whole, is prepared to recognize as reasonable.  However, “[t]he Fourth Amendment is not necessarily a protection in areas of the home...which are open and exposed to public view.”  State v. Duhart, 810 So. 2d 972, 973 ( Fla. Dist. Ct. App. 2002).  When dealing with private residences, there are four factors to consider: (1) the proximity of the area claimed to be the curtilage to the home, (2) whether the area is included within an enclosure, (3) the nature of the uses to which the area is put, and (3) the steps taken by the resident to protect the area from observation by others. United States v. Dunn, 480 U.S. 294, 294 (1987). 

            Here, Jardines made no attempts at enclosing the front doorstep with a fence or any other structure.  Rather, its function was that of a welcoming entrance to the property.  In addition, there was no evidence that Jardines did anything to protect this entrance from the observation of others.  It was completely open to full public access.  Therefore, the officers and Frankie were lawfully present on the doorstep. 

ii. Conduct that reveals the presence or absence of illegal activity, and no other private information, is not a violation of a legitimate expectation of privacy. 

            Any interest in conducting illegal activity cannot be deemed legitimate and, thus, governmental conduct that only reveals illegal activity compromises no legitimate privacy interest. United States v. Jacobsen, 466 U.S. 109, 123 (1984).  In United States v. Place, 462 U.S. 696 (1983), the Court held a dog sniff of closed luggage is not a search.  A dog sniff can only tell whether the luggage is concealing drugs or not.  There is no protectable privacy interest in contraband and, via the sniff, police learn nothing about any personal information contained within the luggage.   

            The view of the Supreme Court of Florida was that the dog sniff was similar to the use of technology for surveillance as in Kyllo v. United States, 533 U.S. 27 (2001).  In that case, the Court held that a sense-enhancing device discovering information regarding the interior of a home that could not otherwise be obtained without physical “intrusion into a constitutionally protected area” constitutes a search…at least where the technology in question is not in general public use. Id. at 28.  In this case, Frankie did not unearth any personal information that could not otherwise have been obtained without a physical intrusion.  Frankie did not provide any information regarding the interior of Jardines’ home or any other details intended to remain private.  Nor did Frankie act as a sensory enhancing tool.  His smell did not affect the ability of Officer Pedraja to personally confirm the presence of live marijuana.  Unlike the thermal imaging device in Kyllo that outlined other intimate details of the home, Frankie simply detected the presence of contraband and nothing else. 

B.  Based on the "totality of the circumstances,” there was probable cause to obtain a warrant and the resulting search was legal under the Fourth Amendment. 

            The Fourth Amendment also provides that “…no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  There must be probable cause.  Illinois v. Gates, 462 U.S. 213 (1983), overruled previous case law and held that while the veracity, reliability, and basis of knowledge are important in determining probable cause, they should only be considered in light of the "totality of the circumstances.” 

            While a positive result from a dog sniff can be used as partial justification for a warrant, presuming the dog is reliable and that a positive alert actually indicates the suspect has drugs, the sniff itself is just a small piece in the bigger picture constituting probable cause. United States v. Ludwig, 10 F.3d 1523 (10th Cir. 1993).  The fact that police are able to detect the odor of marijuana on their own holds considerable weight.  Both a human sniff and a dog sniff matter.  In this case, there were several other qualifying factors to support the warrant in this case.  For one, the police arrived at the residence in the first place based on an anonymous tip that illegal activity was occurring.  In addition, the air conditioner was continuously running without recycling.  Similar use of utilities is common in hydroponic labs.  While individually these factors may not constitute probable cause, their presence together justified a warrant.  Any evidence resulting from that warrant is admissible.    

            As a matter of policy, the courts must give more deference to law enforcement in cases like this.  If police are lawfully present on a suspect’s property and there are various suspicious factors emanating from a given situation, courts should support the issuing of a warrant.  If not, the judiciary is essentially telling criminals it is acceptable to conduct illegal activity as long as it is contained in the home.  This could lead to serious safety concerns for the general public in the future.

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Lauren Nussbaum

Washington College of Law, American University

On January 6, 2012, the United States Supreme Court granted certiorari in Florida v. Jardines to determine whether employing a drug-sniffing dog at the front door of a home, where police suspected marijuana cultivation, constitutes a search under the Fourth Amendment.  The Court will review the Florida Supreme Court's decision in Jardines v. State that such a sniff test is a search that requires probable cause because it "is a substantial government intrusion into the sanctity of the home."  In its pending decision, the Supreme Court could confirm that the home receives greater privacy protections by prohibiting warrantless sniff tests at private residences.  On the other hand, the Court could expand its determination in Illinois v. Caballes that sniff tests at lawful traffic stops are not searches by permitting them at private residences. The Supreme Court should affirm the Florida Supreme Court's decision in Jardines by applying the principles of Kyllo v. United States:  namely, that using a device not in general public use to obtain information from the inside of a home that would be unattainable without entering the home itself is an unlawful search.  

     In Katz v. United States, the Court confirmed that individual privacy protections extend beyond the tangible items listed in the Fourth Amendment.  The Court established a two-part requirement for a Fourth Amendment violation:  "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.'"  When the Court applied this test to cases regarding homes, it clarified that the Fourth Amendment does not protect items on private property that are in public view.

     In subsequent cases involving the pursuit of illegal drugs in items in transit, the Court determined that there is no legitimate interest in possessing contraband, and thus testing these items for drugs, with reasonable suspicion, poses no privacy violation under the Katz test.  In Caballes, the Court emphasized that a sniff test "by a well-trained narcotics-detection dog . . . discloses only the presence or absence of narcotics, a contraband item[,]" so it does not violate a legitimate privacy interest.  However, the Court limited its sniff test holdings to their facts.

     When the Court applied the Katz test to private residences in Kyllo, it reiterated that individuals have a reasonable expectation of privacy in the home by holding that a police officer's warrantless use of a thermal-imaging device to measure heat emanating from a home is an unlawful search.  The officer used the device to infer that Kyllo was using high-intensity lamps to grow marijuana.  Even though possessing marijuana is not a legitimate privacy interest, the Court emphasized that "[i]n the home . . . all details are intimate details," and that increased heat could indicate lawful activity.

     Warrantless sniff tests at private residences should be prohibited under Kyllo because they reveal details that would be unknowable save a physical intrusion, and the public does not generally use them.  In Kyllo, the Court determined that surveillance of a home requires a warrant if it (1) explores details about the home that would have been undiscoverable without physical intrusion (2) through a device (3) not in general public use.  Police officers employ sniff tests to reveal odors that they would not be able to sense on their own, so their use exposes details that officers would not discover without entering the home itself.  While the Maryland Court of Appeals decided that sniff tests are not technology in Fitzgerald v. State because "a dog is not technology——he or she is a dog[,]" recent congressional hearings on U.S. airport security suggest that explosive-sniffing dogs are categorized as technology for homeland security purposes.  Finally, drug-sniffing dogs are clearly not "in general public use."  Thus sniff tests fall under the Court's description of devices prohibited for use on the home without a warrant.

     A sniff test is not sui generis because it detects an odor, not a presence, of contraband, and drug-sniffing dogs are not uniformly trained or guaranteed to alert accurately.  In Caballes, the Court declared that sniff tests are sui generis because they are conducted by "well-trained narcotics-detection dog[s]" and reveal "only the presence or absence of narcotics, a contraband item."  However, there is no uniform certification process for drug dogs or their handlers, and courts rarely inquire into dogs' accuracy rates, which vary widely.  Therefore the Court's assumption that all sniff tests are performed by "well-trained" dogs is flawed.

     In United States v. Place, the Court determined that a sniff test is not a search because of its "limited" nature.  However, an alert signals that the dog has detected an odor, but not necessarily a presence, of a drug.  In fact, a dog could accurately alert to residual odors, odors of legal substances, or to contaminated search areas.  If this alert occurs outside a home, it would likely reveal "intimate details" without revealing contraband, just like a thermal imaging device.   A sniff test at a home should not require only reasonable suspicion when the use of a thermal imaging device on a home requires probable cause; such a result would privilege olfactory enhancements over visual ones.  Furthermore, even if an alert did result in the presence of contraband, that should not make an intrusion into the home valid because "[t]he Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained."  In sum, sniff tests are not limited in manner or content.  Officers make comparable inferences whether they use sniff tests or other technological devices that require warrants to discover items inside the home.

     The Supreme Court should abandon its determination that a sniff test is sui generis and instead uphold the Florida Supreme Court's decision in Jardines that a sniff test of the home where police suspected marijuana cultivation is a Fourth Amendment search requiring probable cause.


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Julie Dabrowski

American University Washington College of Law

The Fourth Amendment to the United States Constitution affords citizens the right to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[1]  In Jardines v. State,[2] the Supreme Court of Florida held that a warrantless “sniff test” conducted at the front door of a residence is an unreasonable government intrusion into the sanctity of the home and thus a violation of the Fourth Amendment.[3]  If the Jardines decision is upheld by the United States Supreme Court, police will be required to obtain a warrant before conducting a sniff test of a private residence. 

The Supreme Court of Florida was correct in its holding that a dog sniff is a search because it allows the government to obtain information about the inside of a residence that would not ordinarily be obtainable absent physical intrusion into the home.  However, the court could have strengthened its argument by challenging the assumption that drug detection dogs are always consistent and accurate – the basis for the theory that dog sniffs are not searches under the Fourth Amendment.

It is well established that the government may not physically invade a person’s private residence without a warrant.[4]  In Kyllo, the Supreme Court expanded this line of thinking when it concluded that where “the Government uses a device that is not in the general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”[5]  Jardines, in which Franky the dog’s heightened olfactory sense was used to discover information about the inside of a home, is logically indistinguishable from Kyllo.  Franky’s ultra-sensitive sense of smell may be likened to a technology similar to a thermal-imaging device because it allows a police officer to effectively “see through the walls of the home.”[6] 

The Jardines court based its ruling on the “special status” of the home which affords an individual a greater degree of protection in his private residence than in a public location such as an airport or train car.[7]  Because Jardines is distinguishable from cases involving dog sniffs in public locations, the Supreme Court of Florida correctly ruled that the police cannot seek to acquire information about the inside of a home without a warrant obtained with probable cause. 

However, the court’s argument would have been strengthened by the inclusion of information concerning the inconsistent and often incorrect results of these sniffs.  The majority of the jurisprudence relating to drug detection dogs is premised on the assumption that because dog sniffs are extremely accurate and uncover only the presence of illegal drugs, they are sui generis, or unique, from other methods of drug detection.[8]  Over time, police have used drug detection dogs more frequently and in an increasing number of contexts in response to the court’s willingness to allow dog sniffs to escape classification as Fourth Amendment searches.[9] 

However, studies show that drug detection dogs are accurate less than half the time, often uncovering substances such as alcohol and pharmaceuticals that may have been acquired completely legally.[10]  In most states, officer and dog teams are not held to any statutory standard of performance, resulting in inconsistency among agencies in levels and types of training.[11] Poor training causes dogs to have false alerts that lead to unjustified searches, some of which may be based on racial profiling by police officers.[12]  Courts have allowed this problem to continue by ignoring data that reveals the error rates of individual dogs.[13] 

The Jardines court could have increased its persuasiveness by using this data to contradict the assertion that dog sniffs are an accurate means of drug detection, thereby challenging the very basis for the use of drug detection dogs over other search methods.

Notes:

[1] U.S. Const. amend. IX.

[2] 73 So. 3d 34 ( 2011). 

[3] at 49.  

[4] See, e.g., Jardines v. State, 73 So. 3d 34, 46 (Fla. 2011) (citing United States v. United States Dist. Court for E. Dist. of Mich.) (“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed . . . .”).  

[5] Kyollo v. , 533 27, 40 (2001).

[6] Lewis R. Katz & Aaron P. Golembiewski, Comment, Curbing the Dog:  Extending the Protection of the Fourth Amendment to Police Drug Dogs, 85 Neb. L. Rev. 735, 766 (2007) (citing State v. Dearman).

[7] Jardines v. State, 73 So. 3d 34, 49 ( 2011).  See, e.g., v. Colyer, 878 F.2d 469, 477 ( 1981) (rejecting the defendant’s contention that an individual has a reasonable expectation of privacy in a train sleeper car).

[8] See, e.g., Mark E. Smith, Comment, Going to the Dogs: Evaluating the Proper Standard for Narcotic Detector Dog Searches of Private Residences, 46 Hous. L. Rev. 103, 114 (citing v. Place) (describing Justice O’Connor’s characterization of a dog sniff as sui generis because it can reveal only contraband).

[9] Katz & Golembiewski, supra note 6, at 736. 

[10] See Dan Hinkel & Joe Mahr, Drug dogs often wrong; Police canines can fall short, but observers cite residue and poor training as factors, Chicago Tribune, January 6, 2011, at 1, available at 2011 LEXIS (noting that an analysis of three years of vehicle sniff test data found that only 44 percent of “alerts” led to the discovery of drugs); see also Illinois v. Caballes, 543 U.S. 405, 412 (2004) (Souter, J., dissenting) (debunking the majority’s contention that a study which shows that drug detection dogs return false positives 12.5% to 60% of the time is evidence that dog sniffs are “generally reliable”). 

[11] Hinkel & Mahr, supra note 10, at 1-2.

[12] (contending that the comparably low success rates of dog sniffs on Hispanic drivers indicate a level of racial profiling).

[13] See Katz & Golembiewski, supra note 6, at 760 (citing United States v. Venema) (holding that the fact that a dog was a “trained, certified, marijuana sniffing dog” was sufficient to establish probable cause absent knowledge of the dog’s error rate). 

 

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