The Supreme Court recently held, in Florida v. Harris, that the "alert" of a reliable drug-detection dog during a lawful traffic stop can provide the probable cause for a search under the "flexible, common-sense standard" of IL v. Gates.
But can police approach a private residence suspected to be a grow house, direct their drug-detection dog to sniff around, and apply for a search warrant based on the alert provided by the dog?
As the State of Florida would have it in Florida v. Jardines, prior Supreme Court jurisprudence holds that the dog sniff is not a search requiring a warrant based upon probable cause. The state, petitioner in this case, relies upon US v. Place (1983), City of Indianapolis v. Edmond (2000) and IL v. Caballes (2005) for the conclusion that "a dog's sniff is not a Fourth Amendment search." It argues that nothing in the Court's precedents changes that conclusion when officers carry out the dog sniff at a "house" (as opposed to a dog sniff of luggage at an airport, or of a car at a lawful traffic stop). Since ordinary visitors, mail-men and Girl Scout cookie sellers alike would be lawfully on the premises if they approached the respondent's house via the usual walkway, the police too were present on the premises. (see the petitioner's brief here). The State also tries out the argument that, since the dog sniff could only reveal the presence of illegal contraband for which there is no reasonable expectation of privacy, the sniff could not be deemed a search. That argument, however, was dismissed out of hand, as circular. (Listen for Justice Kennedy's comments around the 17 minute mark here).
While the State of Florida downplayed the importance of the home in its briefs and oral argument, the respondent Jardines brought the Court's attention to traditional trespass law and called into question the lawfulness of the police team on the property in the first instance. Counsel for Jardines argued that the dog sniff at the private residence was a search for two reasons: 1) the police were trespassing and 2) the police violated the homeowner's reasonable expectation of privacy in the home by approaching the residence for the purpose of searching for drugs. Counsel distinguished the prior dog sniff cases (Place, Edmond and Caballes) and argued that something meaningful changes when police employ a dog sniff at a home. (See respondent's brief here).
While the respondent Jardines is up against some tough dog sniff jurisprudence, the Court should take the opportunity to re-affirm the sanctity of the home from prying government eyes, even if "all that is revealed is the presence of contraband." Most would agree that Girl Scout cookie sellers, and even police, may lawfully approach a house and knock on the door to have a conversation. But the purpose of the visit is front and center in this case--the police were there so that their dog could "sniff around" for drugs. And although the Supreme Court has a distinct distaste for Fourth Amendment rules that require courts to inquire into the subjective state of mind of investigating police officers, there is surely an objective way of ascertaining the purpose of a police officer's visit (i.e., does he have a trained drug detection dog with him?) At oral argument, even Justice Scalia became frustrated that counsel for Jardines did not urge the Court to see this distinction.
This case provides an opportunity for the Supreme Court to put some more meat on the bones of its decision in US v. Jones (2012), where it revived the seemingly-forgotten trespass rationale of the Fourth Amendment. With the Court's rejection of the "no REOP for contraband" argument, there is meaningful space to distinguish this case from the other dog sniff cases.
Stay tuned for updates.