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.
Guest Blogger, Criminal Law Brief