Dog Sniff Case Granted Cert

-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.

H/T: Orin Kerr, SCOTUSblog, Fourth, Fourth

24 thoughts on “Dog Sniff Case Granted Cert”

  1. The CultofThe5thGrade met today after class and we discussed this case. It previously was posted on Yahoo. The lawyers on this blog and on Yahoo who commented must not be reading their Scalia. Assume you at trial and the prosecutor is asking the cop why he decided taht there was drugs inside. “Well” he says, “Bonzo indicated to me that there were drugs inside.”
    Objection: Hearsay of the dog.
    But your honor, we have the Fido Exception to support our contention that the dog is not talking and we are not repeating what he said.
    Def.Atty: What did he do to communicate then?
    Pros: Well he made sniff sounds and grunts.
    Def Atty: I have a right to confront the witness against my client, not the dog interpreter, make him put the dog on the stand. I want to cross examine.
    Pros: Now what would you ask the dog?
    Def Atty: How much he gets paid, in what specie, by whom, how many dog biscuits when he fingers a home owner, how often has he been wrong. Id have him smell your jacket Mr. Prosecutor because you smell like pot to me.

    So folks, and all you smart lawyers out there read the cases on the Confrontation Clause and the jurisprudence on hearsay of the dog.

  2. i do wonder how many times this has happened and nothing was found. that never seems to make the headlines, unless someones dog gets shot.

  3. I am surprised it took this long to get to this issue which was predicted by Justice Brennan in his dissent in U.S. v. Jacobsen, 466 U.S. 109 (1984). Justice Brennan described a future with “canine cocaine connoisseurs” roving the streets of America. That future is here (note the date of the Jacobsen decision–1984!). The Florida Supreme Court decision will be reversed and our republic will continue to gaily skip towards the East Germany of 1984.

  4. i’ve seen a drug sniffing dog walk make three passes within two feet of said product and never blink. of course it wasn’t “good skunk weed”.

  5. … and wondering if a no trespassing sign on the front porch of the dwelling would frustrate the legality of the sniff test.

    should be further … “and wondering if a no trespassing sign on the front porch of the dwelling would further frustrate the legality of the sniff test.”

  6. Nal,

    I don’t want to give the impression that I’m planning a criminal act but … open fields is slightly different.(*) I guess that I’m wondering if Jardines’ lawyer would have a slightly stronger case if there had been a no trespassing sign posted on the front porch indicating an “express order from the person in possession against any possible trespass”

    (*)I know a few retired DEA agents and part of their monthly routine was to drive country roads … sniffing (with their own noses). A strong whiff in an area was not enough to obtain a search warrant for the property but it was enough to gain access to the water and electric usage which, if high enough, was then enough to get a warrant for the property. There I see the correlation to “open fields”.

    But to actually go onto the property without a search warrant for the purpose of sniffing … there in lies my question relating to Davis v. United States wording “Absent express orders from the person in possession against any possible trespass …” and wondering if a no trespassing sign on the front porch of the dwelling would frustrate the legality of the sniff test.

  7. The very idea that anyone would want to know; much less attempt to discover what I grow, poccess, smoke, injest, or inject, is absurd to me.

    The notion that we as a people have allowed ourselves to be hearded, sheared, lied to, lied to, lied to, controlled and mind F–ked; in order that we could sit back and let someone else make the decisons is beyond absurd. Into the realm of insanity I would think. Extreme gulibility at least. Might they not be the same?

  8. The rank absurdity of the drug war made manifest yet again. Police wandering around residential areas with dogs and swat gear busting down doors because they smell banned plants then hauling the occupants off to the federal pen. I can’t speak of the legal ramifications but the moral bankruptcy of these policies is obvious. Welcome to the brave new world.

  9. “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.”

    That should be:

    “If the Jardines sniff test is allowed to stand, police, with a detector dog, will be able to walk up to any front door, test for illegal odors, claim the dog gave a positive signal and give police the probable cause they need to break down the door and charge into the house, guns a-blazing.”

  10. David,
    Great case. That pup had one super nose! I have read that some dogs can actually smell cancer within a patients body. I would agree with AY that the front door is way too close.
    If the satellites Google Earth uses can show the picnic table on my patio, I would guess that the military ones could easily show fields of crops in some detail.

  11. Nal,

    re the Davis v. United States ruling (Absent express orders from the person in possession against any possible trespass …) … if I put a clearly visible “No Trespassing” sign on my front porch does that frustrate the sniffer test or anyone else who wishes to step on my front porch …

  12. The government or police should leave people alone unless someones rights have been violated.

  13. Maybe this thread should have been named “Wayward Wind:…

    I have read in prosecutor notes where satellites can pick up the heat differential between regular growing crops and weed….but it is hard to distinguish the heat transference between corn and marijuana… Not sure of the reasons why…

  14. There was a farmer in Mississippi who discovered a large patch of MJ growing on the back side of his property. Being a businessman looking to turn a profit, he harvested the crop and laid it out behind his barn to dry. It was not visible from any public road. Sometime after that, the Feds descended on his property with a warrant.

    Seems that drying MJ has a particular color signature a satellite can detect. They saw his stash from an altitude of more than 250 miles up, directly over his property, and came looking for him.

  15. Most technology is ultimately available to the public in some form. Regardless, it must not be used as a basis to invade people’s privacy without a warrant..

  16. I think that the front door was too close…and violates the curtilage proximity….I also think that with a good wind and if it good skunk weed…the draft will get them come harvest…or just wait for the distribution to begin…….

  17. With the emerging technology of sniffing technology, or perhaps just a good dog, what would be the implications if the police just waited for a day when the weather was right and positioned the dog or sniffing machine downwind of the suspected residence, but outside the perimeter of the property?

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