-Submitted by David Drumm (Nal), Guest Blogger
This case has everything a Fourth Amendment nerd could want, it’s got curtilage, sniff tests, and unreasonable searches. The case is Jardines v. State in which Miami, Florida, police, supported by DEA agents, conducted a “sniff test” by a detection dog, a chocolate lab named Franky (left). The warrentless sniff test, based on an anonymous tip, occurred at the front door of Jardines’ private residence. Franky alerted to the odor of narcotics and a search warrant was obtained. The search found marijuana was being grown inside the home.
Jardines filed a motion to surpress and the trial court granted that motion. The State appealed and the district court reversed and Jardines appealed to the Florida Supreme Court.
The Florida Supreme 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.
Sniff tests for cars are allowed via Illinois v. Caballes where the Supreme Court held:
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.
While the front porch might be consider curtilage, courts have generally found no Fourth Amendment violation when the porch is assessable to the public. The United States Court of Appeals for the Ninth Circuit, in Davis v. United States wrote:
Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person’s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man’s “castle” with the honest intent of asking questions of the occupant thereof — whether the questioner be a pollster, a salesman, or an officer of the law.
In Jardines, the Florida Supreme Court recognized this front porch exception rule and said that “a dog “sniff test” is a qualitatively different matter.”
In Kyllo v. United States, a case involving the use of a thermal imaging device to scan the outside of a residence for the heat signature indicating the possible presence of high-intensity lamps used for growing marijuana indoors, the Supreme Court held:
Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant.
A detector dog is certainly a device not in general public use. It will be interesting to see if the Court follows Kyllo or Caballes.
If the Jardines sniff test is allowed to stand, police, with a detector dog, will be able to walk up to any front door and test for illegal odors.