Supreme Court Set to Rule on Whether the Use of Drug-Sniffing Dogs Around the Exterior of the Home are a Violation of the Fourth Amendment’s Right to Privacy.

The Supreme Court is currently on summer recess; however, there are some interesting criminal procedure cases that the Court will hear when the new term begins in October.  One of these cases, Florida v. Jardines, has to do with how police may use canines trained to detect narcotics without violating an individual’s Fourth Amendment right to privacy.  In this case the Florida Supreme Court held that the factual situation surrounding the law enforcement’s use of drug-sniffing dogs violated an individual’s right to privacy under the Fourth Amendment. 

Whether a search is a violation of an individual’s right to privacy is dependent on the factual situation surrounding the search.  First, it must be determined that what the officers did was a search in the first place.  If it is not a search, then there is no Fourth Amendment protection.  For example, if an individual no longer has any privacy interest in an item, such as trash put out on the street for trash collection, then it is not regarded as a search if officers look through the trash.  However, if the trash is still inside the individual’s home, the officers may not search it without a warrant, which requires the officer to have probable cause that the search will lead to evidence.

Prosecutors often argue that the use of drug-sniffing dogs is not a search at all and thus does not violate the Fourth Amendment.  Prosecutors rely on the Supreme Court case Illinois v. Caballes which held that since the dog only alerts to something illegal and an individual does not have a privacy interest in illegal items or substances; the use of drug sniffing dogs is not a search under the Fourth Amendment.  The Supreme Court has embraced this precedent in cases where the dog was used to sniff luggage, the exterior of a car pulled over for a traffic violation, or vehicles stopped at a highway checkpoint.

The Jardines case can be distinguished because the dog was used to sniff the outside of a home suspected of being used for drug trafficking.  In Jardines, police received a tip that the Jardines’ home was being used to grow marijuana.  On this tip alone, police used a dog to sniff the outside of the home and the dog alerted to the front door.  The officer also said he smelled marijuana and noticed that the air conditioner was continuously running on high.  The officers then obtained a search warrant based on this information and found a marijuana growing operation inside.

The Florida Supreme Court reversed the lower court’s holding that this was not a search under the Fourth Amendment.  The lower court reasoned there was no search because the officers and the dog were legally present on the outside of the home and the dog only alerted to illegal activity.  The Florida Supreme Court disagreed and based their decision on the Supreme Court case Kyllo v. US.  Kyllo held the use of a thermal imaging device pointed at a home to detect heat lamps was unconstitutional.  The Court reasoned that the home is the place where individuals enjoy the greatest amount of privacy rights, the device was not used by the general public, and the device can reveal things inside the home that are not illegal.

The Florida Supreme Court rationalized that the use of drug sniffing dogs outside the home fits into the category set out by Kyllo.  The court reasoned that the use of the dog does not only reveal something illegal; but is also capable of exposing the homeowner to public embarrassment and humiliation when it is carried out in the public view.  The Florida Supreme Court also worried that this rule would lead to the use of dogs in large-scale dragnet style searches. 

The home is the place where individuals enjoy the greatest amount of privacy and I do agree that the use of drug-sniffing dogs in dragnet style searches would violate the Fourth Amendment.  An individual’s right to privacy in their home should preclude the ability of police to simply walk up and down streets checking houses using drug sniffing dogs with no cause whatsoever.  However, I believe Jardines can be differentiated from that situation.  In Jardines, the police went to the house because they received a tip that the house was being used to grow marijuana.  Because of this tip, the officers proceeded to gather additional information in order to obtain a search warrant.  The use of the dog based on this tip was minimally invasive and was an effective way of determining whether illegal substances were present.  Additionally, the officer also noticed the smell of marijuana and the fact that the air conditioner was continually running on high, which indicated, from his experience as a police officer, that the house was being used to grow marijuana.  I do not believe that the danger of public embarrassment and humiliation because neighbors might see the dog amount to the use of the dog being a search in terms of the Fourth Amendment.  The dog did not alert to anything aside from the illegal substance inside the home and the officers had at least some cause to suspect the home was being used to grow marijuana.

Nevertheless, it will be interesting to see how the Supreme Court rules on this case and other dog sniffing cases that will come before it in the new term.  Since the factual situation is so important to the Fourth Amendment right to privacy, this is a continually developing area of law and the Supreme Court has the opportunity to either expand or restrict the ability to use drug-sniffing dogs around the exterior of the home. 

Nicole Irwin

Blogger, Criminal Law Brief