The Supreme Court on Friday granted certiorari in a Florida case — Florida v. Jardines — to clarify when police are allowed to use a drug-sniffing dog at the front door of a house, when police believe the house is being used in drug trafficking. The case will probably be argued in April, with a decision expected in June. The Fourth Amendment provides that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.
The Florida case deals with the question of whether police must have probable cause to believe that there is evidence of a crime inside a house before they can bring a drug-sniffing dog to the front door of a suspected “grow house,” where they believe that marijuana is being grown. In December, 2006, a Miami police officer was following up on a “crime stoppers” tip that the house was being used to grow marijuana plants. The Florida Supreme Court ruled that police needed to have probable cause tp believe that a crime was being committed inside before they could use the dog at the home, holding that the drug sniff was a “search” under the Fourth Amendment. Florida appealed to the U.S. Supreme Court, and the Court granted review on this question:
Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause
First, for the benefit of those who are not appellate lawyers, the fact that the Supreme Court has granted the Petition for Certiorari means only that four members of the Court want to hear the issue. Issues pertaining to drug dog sniffs have been the subject of Petitions for Certiorari for years, and the Supreme Court has not granted review in those cases. So what inferences can we draw from the fact that they have granted review in this case? It may be that the facts of the case are particularly compelling for some reason, but to me the most important detail explaining why the Court has granted review in this case is that the Florida Supreme Court has ruled in favor of the defendant. In virtually every other case where Petitions have been filed seeking review of a drug-dog sniff, the lower court ruled in favor of the state. That the Petition that they have agreed to hear is one filed by the State of Florida is generally a sign that they intend to overrule the Florida Supreme Court and to uphold drug-dog sniffs.
Second, it is worth noting that the very simple question on which review was granted bears only a superficial resemblance to the way that the Supreme Court of Florida described facts of the case. The Fourth Amendment does not prohibit all searches — just unreasonable searches. And what is “unreasonable” depends on the facts of the case. To look at the question presented, as drafted by the State of Florida, you might think that it is a simple matter of Deputy Barney Fife and his trusty pooch Sniffles coming to the door of the house, Sniffles “alerting” to show that he smells marijuana present, and that was that.
The District Court — a lower level court in Florida — described what happened this way.
The Miami-Dade County Police Department received a Crime Stoppers tip that marijuana was being grown at the home of defendant-appellee Joelis Jardines. One month later the detective went to the home at 7 a.m. He watched the home for fifteen minutes. There were no vehicles in the driveway, the blinds were closed, and there was no observable activity. After fifteen minutes, the dog handler arrived with the drug detection dog. The handler placed the dog on a leash and accompanied the dog up to the front door of the home. The dog alerted to the scent of contraband. The handler told the detective that the dog had a positive alert for the odor of narcotics. The detective went up to the front door for the first time, and smelled marijuana. The detective also observed that the air conditioning unit had been running constantly for fifteen minutes or so, without ever switching off. [N. 8. According to the detective, in a hydroponics lab for growing marijuana, high intensity light bulbs are used which create heat. This causes the air conditioning unit to run continuously without cycling off.]
According to the opinion of the Florida Supreme Court at pp. 3-4, the situation was much different:
First, the dog “sniff test” that was conducted in the present case was an intrusive procedure. As explained more fully below, the “sniff test” was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement agencies. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity—i.e., the preparation for the “sniff test,” the test itself, and the aftermath, which culminated in the full-blown search of Jardines’ home — lasted for hours. The “sniff test” apparently took place in plain view of the general public. There was no anonymity for the resident.
Such a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many—neighbors, passers-by, and the public at large—will be viewed as an official accusation of crime. Further, if government agents can conduct a dog “sniff test” at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct. Accordingly, we conclude that a “sniff test,” such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a “search” within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.
In its Petition, Florida told the Supreme Court that the state ruling conflicts with Supreme Court precedent that a dog sniff is not a search under the Fourth Amendment. “This Court,” the state said, “has explained that a dog sniff is not a search because the sole knowledge that the dog obtains by sniffing is the presence of contraband, which a person does not have a reasonable expectation of privacy in possessing in the first place.” The Petition cited the Court’s 2005 decision in Illinois v. Caballes, 543 U.S. 405 (2005) and argued that the Florida courts “are now alone in refusing to follow” that ruling.
Caballes is, on its facts, a very different case. Here is how the U.S. Supreme Court described the facts in that case:
Illinois State Trooper Daniel Gillette stopped respondent for speeding on an interstate highway. When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcotics-detection dog. When they arrived, respondent’s car was on the shoulder of the road and respondent was in Gillette’s vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10 minutes.
543 U.S. at 406. Doesn’t sound much like what the Florida Supreme Court describes, does it?
Because the Fourth Amendment inquiry turns on reasonableness, it is necessarily fact-dependent. In Caballes, would it have mattered if the evidence was that the entire incident had lasted 30 minutes? How about an hour? Would it have mattered if there had been 4 police officers instead of 2? The standard wisdom is that appellate courts are bound by the factual determinations of the lower courts, but experience tells us that the U.S. Supreme Court can write its own version of the facts. So if the Court wants to uphold the dog sniff, look for an opinion that says, “The only thing that Mr. Jardines is complaining about is that a dog came to his door and sniffed the air.” And if the Court wants to strike down the dog sniff, look for an opinion that talks about everything that happened AFTER the sniff itself.
But I’m getting ahead of myself.
The United States Supreme Court has held that a dog sniff is not so intrusive as to constitute a “search”. United States v. Place, 462 U.S. 696, 707 (1983).
A “canine sniff” by a well-trained narcotics detection dog … does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here—exposure of respondent’s luggage, which was located in a public place, to a trained canine—did not constitute a “search” within the meaning of the Fourth Amendment.
However, the Court invalidated the search because it was pursuant to an illegal seizure when the Defendant was made to wait for 90 minutes without there being any probable cause for the detention. In City of Indianapolis v. Edmond, 531 U.S. 32 (2000), the Court considered a drug checkpoint where every car that was stopped had a drug dog walk around it. Again, the Court held that there was no problem with the dog — just that a checkpoint for no particular reason except to see if people are violating the law is invalid under the Fourth Amendment.
But Jardines does not involve luggage, or a car; it involves a home. “At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). Or, more succinctly, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo, 533 U.S. at 31. In terms of legal analysis, this case presents the intersection of Caballes and Kyllo.
Kyllo involved another police effort to determine if someone was growing marijuana indoors. The police had a “thermal imager” — a device that measured infrared radiation — and they stood on the public street and trained the thermal imager on Mr. Kyllo’s house. When they got a high reading, indicative of someone growing marijuana, they got a search warrant. The Court held that using a thermal imager, even when standing in the street, constituted a “search” within the meaning of the Fourth Amendment. Because you can’t search a house without a warrant (except in limited circumstances), the warrant was based on illegally obtained information and the subsequent search was invalid.
Caballes dealt with the search of a car, where the expectation of privacy is less and the mobility of the car is a factor — if the officer had to go get a warrant, the car would be moved before he could get back with the warrant. On the other hand, in Kyllo the search was done from the street, and Jardines involved a house and a “search” from the front steps of the house.
I have a hard time figuring out where the Court will come down here, because the Court could take a very different view of the facts from the view that the Florida Supreme Court takes.
Factors weighing in favor of Jardines:
It was a house
They had to come to his front step to smell the marijuana
What followed was an intrusive search and a big mess
Kyllo
Factors weighing against Jardines:
All we are talking about is the dog’s alert, not the search that followed
The dog handler had a right to come to the front step, just as any Girl Scout selling cookies might
They actually found drugs, and we don’t like drug dealers
Caballes
My guess is that the U.S. Supreme Court will look for a way to affirm the search and to overrule the Florida Supreme Court. The interesting point, for those who make a habit of watching the Court, is whether they will do so in a way that smacks of a “bright-line” test, or whether they will say, “Based on these facts as we present them, we don’t think this is unreasonable.” I predict that the decision will say, “If a police officer is standing with his dog where he and the dog have a right to be, and the dog gets a ‘hit’, that ‘hit’ is not a search.”
