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SCOTUS Strikes Front Door Dog Sniff Based on Property, Not Privacy

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By Robyn Hagan Cain on March 26, 2013 11:07 AM

If a random person popped up on your porch with a pooch to sniff around, you would probably be perturbed. Justice Antonin Scalia says that you are entitled to be equally outraged when the police and pawlice do the same thing.

Tuesday, the Supreme Court held in a 5-4 decision that the government's use of trained police dogs to investigate a home and its immediate surroundings is a "search" within the meaning of the Fourth Amendment.

In 2006, the Miami-Dade Police Department received an unverified tip that marijuana was being grown in Joelis Jardines' home. A month later, the Department and the Drug Enforcement Administration sent a joint surveillance team to Jardines' home. When observation alone didn't yield results, the cops brought Franky the drug-sniffing chocolate lab to Jardines' door. Franky sniffed the house and alerted his handlers, which was sufficient evidence for the cops to obtain a search warrant.

Jardines' was later arrested for possessing more than 25 pounds of marijuana.

The Florida Supreme Court called Franky's sniff an "unreasonable government intrusion into the sanctity of the home," likening it to the warrantless infrared thermal imaging that the U.S. Supreme Court rejected in 2001's Kyllo v. U.S. The state court agreed with Jardines that the evidence of the marijuana plants should be suppressed because the use of a trained narcotics dog to investigate the home was a Fourth Amendment search unsupported by probable cause.

The Supreme Court majority, referencing last year's U.S. v. Jones holding, affirmed the Florida court. Justice Scalia wrote in the majority opinon:

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.

Justice Samuel Alito, writing for the dissenters, suggests that the dog sniff was no big deal because people have loved puppies for 12,000 years, and there's no reasonable expectation of privacy in the smells that waft outside a home. (No, that's not a direct quote.)

For all you dog-lovers keeping track of the canine cases, puppies finished 1-1 in the Court this term: A dog's "satisfactory performance" in a certification or training program is sufficient reason for an officer to trust its alert, but cops who bring one of those satisfactory sniffers to check out your curtilage have conducted a search.

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