On October 31st, the United States Supreme
Court will hear oral argument in Florida
v. Jardines, (October Term 2012, 11-564) (for the Florida Supreme Court’s
opinion click here). This case presents a Fourth Amendment
issue: Is a dog sniff at the front
door of a suspected grow house by a trained drug-detection dog a search
requiring probable cause?
After receiving a Crime Stoppers tip that a house in south
Dade County was being used as a grow house, law enforcement officers began a
surveillance. A canine handler and
his partner joined the surveillance team. During the surveillance the canine handler, his partner, and
a second officer approached the home. The canine began to track the odor of the controlled
dangerous substance, alerting to the presence of a substance by sitting down
immediately after sniffing the front door. While at the front door, the second officer smelled the odor
of live marijuana. Police
subsequently obtained a search warrant––included in the application for the
search warrant was the fact that the canine had alerted on the house.
The trial court granted defense motions to suppress––finding
the use of a drug detector dog at the defendant’s house door constituted an
unreasonable search under the Fourth Amendment.
In 1983, Justice O’Connor delivered the opinion in U.S. v. Place, 462 U.S. 696 (1983). This case raised the issue whether the
Fourth Amendment prohibited law enforcement from temporarily detaining personal
luggage for a scan by a trained drug-detection canine. Justice O’Connor wrote, “[t]he manner
through which information is obtained through this investigative technique is
much less intrusive than a typical search.” The Justice noted, “[t]he canine sniff is sui generis.” Justice Douglas was the sole dissenter, though his dissent
did not address the canine issue specifically.
The following year, the Supreme Court in U.S.
v. Jacobsen, 466 U.S. 109 (1984)
expanded on its holding in Place and
held that a police investigatory tool––such as a dog sniff or a chemical test––is
not a search if it merely reveals the presence or absence of contraband. The Court reasoned that the privacy
interest in possessing contraband is not one that society recognizes as
reasonable. Later, in 2001 Maryland Court of Appeals decision, the state's highest court held that a K-9 scan of a vehicle is neither a search nor a seizure, and
Fourth Amendment issues do not arise.
In Illinois v. Caballes, 543 U.S. 405 (2005), the
Supreme Court was presented with another Fourth Amendment issue regarding the
use of a narcotics-detection dog to sniff around the exterior of a vehicle
during a traffic stop. Justice Stevens
writing for the majority held that, “a dog sniff conducted during a
concededly lawful traffic stop that reveals no information other than the
location of a substance that no individual has any right to possess does not
violate the Fourth Amendment.”
The membership of the court has changed since Justice
Stevens wrote Caballes in 2005.
Justice Stevens along with Justice
Souter, who was a dissenter in Caballes,
and Justice O’Connor have retired from the Court. Although he took no part in the decision, Chief Justice
Rehnquist is also no longer serving on the Court. The four new justices, Alito, Sotomayor, Kagan, and Chief
Justice Roberts appear to be ideologically equally divided. The true unknown in this upcoming case
is Justice Scalia. Although
thought to be pro-government, earlier this year in another Fourth Amendment
case, United States v. Jones, 586 U.S. (2012),
Justice Scalia found the government placing a GPS tracking
device on a vehicle to be a search. In Jones police had attached the GPS tracking device
to a vehicle while it was parked in a public parking lot. Justice Scalia was particularly offended
by this trespass on the personal property of the vehicle’s owner. There were no dissenting opinions in
that case. Caballes has a trespass
component to the facts––police officers enter the cartilage with a narcotic
detecting dog and follow the dog up to the front door where the dog alerted.
In their upcoming decision in Jardines, it is possible that the Court will follow and extend Jones,
thus resisting the temptation to weaken the protection of the Fourth Amendment
as Justice Douglas counseled in Place.
Jeffrey Wennar
Guest Blogger, Criminal Law Brief
It should be interesting to see what the Court does, though I think the facts that the officer smelled Marijuana and police were legally on the property after receiving information about that the residence being used as grow house will allow the Court to rule that a trespass had not occurred, like in Jones, and the dog alerting was not a search.
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