Limits On Drug-Sniff Dog Searches

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Tuesday, April 2, 2013

Last week, the U.S. Supreme Court decided Florida v. Jardines, an important case on the limits of the use of trained dogs to detect the presence of narcotics in a person’s home.

Based on an unverified tip, police began watching the defendant’s house, where they believed defendant had been growing marijuana plants. Observing absolutely nothing suspicious, the police nevertheless called for a drug-sniffing dog trained to detect the odor of different narcotics, including marijuana. The police walked the dog onto the porch of the defendant’s house, and the dog gave the signal he smelled narcotics. Based on the “heads up” from the dog, the police obtained a search warrant and discovered marijuana in the defendant’s home.

At trial, defendant sought to suppress the evidence of the search as a violation of the Fourth Amendment as lacking in probable cause. The trial court agreed and granted the motion to suppress, which the Florida Supreme Court upheld on appeal.

The U.S. Supreme Court, by a vote of 5-4, in an opinion written by Justice Scalia, agreed with the lower court rulings, but on somewhat different grounds. Justice Scalia argued that the home and the immediate areas surrounding the home – what the law calls curtilage – are at the heart of the protections of privacy in the Fourth Amendment. While police can approach people on the street and ask for identification or knock on a door as could any solicitor, bringing a dog onto the premises is not the same as a knock on a door:

But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.

Justice Scalia did not address the issue of whether a person has a legitimate expectation of privacy not to have a trained forensic dog sniff one’s house without probable cause because he felt the issue could be resolved on the trespass basis alone – the dog exceeded the license afforded a general knock at the door by a stranger. In a concurring opinion, Justice Kagan, joined by Justices Ginsburg and Sotomayor, did address the privacy argument, finding the invasion of the trained forensic dog no different than the invasion of a heat-seeking imaging device the Court struck down a decade ago.

While some may see the import of the decision in the rise of a trespass concept to Fourth Amendment analysis, the immediate takeaway is that police cannot use trained forensic dogs to randomly search houses for contraband, though these same dogs remain free to do so at airports and for other security situations where people have no similar expectation of privacy. It remains to be seen whether the same protection will extend to automobiles.

If you have questions about an illegal search involving drug-sniffing dogs, contact us – we can help.

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