Concerning the Fourth Amendment Implications of a Police Dog Sniff at the Front Door of a Suspect’s Home
(1) 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 United States Supreme Court will review a recent Florida Supreme Court decision, Jardines v. State, which held that the use of a drug-sniffing dog around the home is search requiring probable cause under the Fourth Amendment. The Florida Supreme Court declined to extend the reasoning of a 2005 US Supreme Court decision, Illinois v. Caballes, which held that similar use of a drug-sniffing dog around an automobile was not a search. The US Supreme Court also previously held that a dog-sniff was not a search in the airport. The Court must consider in this case whether its previous “dog-sniff” decisions apply equally in the context of the home, which has traditionally enjoyed heightened Fourth Amendment protections.
The Court’s dog-sniff jurisprudence derives from a 1980s case, United States v. Place, in which the DEA detained a man at an airport and allowed a trained narcotics dog to perform a “sniff test” on his luggage. The Majority Opinion held that a “brief seizure” of the man’s luggage was appropriate, but that the officers could not conduct a full “search” without probable cause. The Court held that the “sniff test” at issue was not a “search” under the Fourth Amendment because it did not involve opening or otherwise exposing non-contraband to public view, and it was specifically designed to reveal the presence of contraband. The Court held that a dog-sniff was sui generis, but the majority opinion raises the question of what other investigatory techniques might not constitute a Fourth Amendment “search.”
In Illinois v. Caballes, the US Supreme Court again upheld the use of a dog sniff test, but this time in the context of an automobile search. The Majority Opinion reinforced the Court’s conclusion in Place, that an investigatory technique that only reveals illegal conduct is not a “search” under the Fourth Amendment because an individual has no reasonable expectation of privacy in such conduct. Justice Souter wrote a dissenting opinion and argued that the sui generis treatment of the dog sniff test in Place was based on the faulty assumption that the sniff test was error free and thus did not expose legal conduct or property. Justice Souter’s argument did not persuade a majority of the justices in the automobile context, but it remains to be seen whether the current Court can be persuaded that a sniff test of a home crosses an important Fourth Amendment line.
Justice Scalia’s Majority Opinion – Jones Trespass Test
On March 26, 2013, the Court issued its opinion in Florida v. Jardines and held that “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Justice Scalia delivered the Opinion of the Court, which was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan. Justice Scalia’s opinion reiterated that, as a “simple baseline,” a Fourth Amendment search occurs whenever the “Government obtains information by physically intruding on persons, houses, papers, or effects.” In this case, he found that Detective Bartlet conducted a “search” when he approached the defendant’s house with a trained drug-detection dog because he (1) entered a constitutionally protected area and (2) exceeded the scope of the public license to act in that area with (3) the intent to conduct an investigation. Justice Scalia distinguished this search from a traditional “knock and talk” because approaching a house to speak with the owner does not exceed the “scope of the license – express or implied.” He noted that complying with the terms of the traditional “invitation doe snot require fine-grained legal knowledge: it is generally manged without incident by the Nation’s Girl Scouts and trick-or-treaters.” Justice Scalia’s opinion ultimately relies on his finding that “no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.”
Justice Kagan’s Concurrence – Kyllo 2.0
Justice Kagan wrote a separate concurring opinion, joined by Justces Ginsburg and Sotomayor, to stress that she could also have decided this case based on a violation of defendant’s “reasonable expectation of privacy.” Specifically, she found that “a simple analogy clinches this case . . . . A stranger comes to the front door of your home carrying super-high-powered binoculars,” and “stands on your porch and uses the binoculars to peer through your windows, into your home’s furthest corners.” As a result of this “uncommon behavior,” he manages to “learn details of your life you disclose to no one.” The Jardines case presents the same issue, and Justice Kagan argued that the stranger has committed both a trespass and a violation of the home owner’s reasonable expectation of privacy. Specifically, Justice Kagan noted that the Court resolved this issue in Kyllo v. United States, 533 U.S. 27 (2001), when they held that police officers use of a thermal-imaging device to detect heat emanating from a private home was a “search” under the Fourth Amendment.
EPIC’s Interest in Florida v. Jardines
EPIC has argued in the past that the Fourth Amendment probable cause standard should apply in cases where the government uses “enhanced” investigative techniques that are designed to detect contraband, but are nevertheless imperfect and likely to lead to the exposure of non-contraband and legal conduct.
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