A majority opinion of the U.S. Supreme Court this week frustrated the State of Florida (as well as the Federal government and 26 other States) by ruling that police who bring a sniff dog onto a homeowner’s property and turn up evidence related to the dog’s signaling are conducting a “search” as defined by the 4th Amendment.
That means cops can’t suspect you of growing marijuana in a house, turn up casually at your front door with a dog — you know, just to ask a few questions — and thereafter develop probable cause to search the house, as the dog sniffs around at the front door and begins indicating there’s something illegal inside.
That’s exactly what happened to one homeowner in the Miami area in 2006, when police acting on an unverified tip visited the home of Joelis Jardines, with Drug Enforcement Administration agents waiting in the wings. They didn’t have a warrant, and the tip alone wasn’t sufficient probable cause to obtain a search warrant. The cops let the dog sniff at the front door. The dog signaled that narcotics were somewhere nearby. And the cops then applied for and received a search warrant.
The police had initiated no contact with Jardines during this episode. That contact came only when they returned to the house with the search warrant, found the marijuana being grown inside and arrested Jardines.
The Florida Supreme Court had already sided with Jardines after he appealed a lower court’s ruling that dog searches aren’t covered under the 4th Amendment. Realizing the broad implications the decision could have to limit search powers, the State then appealed the decision to the U.S. Supreme Court.
It’s worth culling the high points from Justice Antonin Scalia’s majority opinion:
Since the officers’ investigation took place in a constitutionally protected area, we turn to the question of whether it was accomplished through an unlicensed physical intrusion…
…As it is undisputed that the detectives had all four of their feet firmly planted on the constitutionally protected extension of Jardines’ home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not.
…We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.
Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.”
But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.
Two disappointments, though, about Tuesday’s decision:
- It was close. The majority decision came after a 5-4 vote.
- Tuesday’s victory for 4th-Amendment freedom stands in contrast to a misstep the court made in January, when it held that police dogs’ training and certification is itself sufficient grounds for courts to admit evidence based on the accuracy of their signaling. That decision came in spite of evidence that “real-world data demonstrate that even trained or certified dogs have a high rate of false alerts” and can take their signaling cues from handlers or from other stimuli in their environments.