Fourth Amendment and Dog Searches revisited by the Supreme Court

Florida v. Jardines, 11-564 (certiorari granted on Jan. 6, 2012)

Issue: 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?

Discussion: The Court recently granted cert to determine what limits does the Fourth Amendment place on the use of trained narcotics dogs at the front door of the home.  This issue was previously determined by the Court in the context of car searches in Illinois v. Caballes.  In that case, it was held that the use of a dog around a car was not a “search” under the Fourth Amendment.  In the case at bar, a divided Florida Supreme Court held that the Caballes rule was not applicable and that probable cause was required.

Historically, the Court has held that a reasonable person expects a higher level of privacy in the home than in his automobile.  A smorgasbord of reasons were given in several cases for the lowered expectation of privacy in a car—such as a person who travels in public exposes himself and thus cannot reasonably expect the same level of privacy as when he is in his home.  The Court, using the lowered expectation of privacy exception, has carved out several exceptions to the probable-cause requirement in the case of automobile searches.  Examples include the inventory search, the so-called Terry-Search of a vehicle, and the automobile exception (which was expanded to include all container in the vehicle). 

On the other hand, the Court has in many occasions steadfastly refused to extend the scope of the Fourth Amendment into the sanctity of the home.  Historically, it has ferociously guarded the privacy of the household except under certain limited exceptions—such as the “hot pursuit” exception or the plain view and protective sweep exception.  Further, the Court has previously held that the use of certain “sense-enhancing” techniques—such as thermal imaging—as a 4th Amendment search.  It could be argued that the use of a dog is a similar sense-enhancing technique as well.  It remains to be seen which way the Court will rule in the present case—but, if history repeats itself, I will bet my money that police dogs will not be arbitrarily sniffing around my front porch anytime soon. 

Wassem M. Amin

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