Supreme Court Rules Drug Dog Search Without a Warrant Unconstitutional

Filed under: Criminal Law, Drug Crimes by Contributor @ March 28, 2013

On March 26, the United States Supreme Court decided Florida v. Jardines, which raised the question of whether or not a police dog searching for the odor of drugs on a person’s porch without a warrant constitutes a violation of the Fourth Amendment’s prohibition of unreasonable searches and seizures. In a 5-4 opinion, the Court ruled that this action does constitute a search, and thus, is a violation of the Fourth Amendment. Justice Antonin Scalia authored the opinion for the majority, joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan (the latter three Justices also delivered a concurring opinion). Justice Samuel Alito authored the dissenting opinion, joined by Chief Justice Roberts and Justices Kennedy and Breyer.

In November 2006, the Miami-Dade Police Department received an anonymous, unverified tip that marijuana was being grown in the residence of Joelis Jardines. The following month, MDPD Detectives William Pedraja and Douglas Bartelt walked up to the house, accompanied by a drug-sniffing dog, Frankie. Frankie paced back and forth, using a technique known as “bracketing”, in which a drug dog attempts to locate the point where a drug’s odor is strongest. Frankie eventually located the scent and sat down right in front of the door, signaling to Detective Pedraja that the odor of a drug was emanating from under the door. Frankie’s job was done, and the three left the premises, spending less than two minutes on the property. An hour later Pedraja obtained a search warrant and returned to the house to execute the warrant, accompanied by DEA agents. Jardines fled the house and was promptly arrested by a DEA agent and charged with trafficking in excess of 25 pounds of marijuana, a felony of the first degree.

Jardines moved to suppress the marijuana that was discovered, arguing that it was seized as a result of an unreasonable search. The trial court granted the motion, but the prosecution appealed and the Florida Third District Court of Appeal reversed that decision. Jardines then appealed the Third District Court’s decision, which was overturned by the Florida Supreme Court. Finally, prosecutors appealed the Florida Supreme Court’s decision, and the United States Supreme Court granted certiorari.

In his opinion, Justice Scalia relied heavily on the common law notion that for any individual to enter the curtilage of a house, he may do so only with an implicit or expressed invitation or license. An expressed invitation is straightforward; what exactly constitutes an implicit invitation is not as clear. A simple knocker on a door gives an individual a license to walk up to the door and knock in order to converse with someone inside. The same applies even to solicitors and peddlers, whose presence is largely unwelcome. A key point of Scalia’s reasoning is that an individual is granted a license to enter the curtilage of a house only for a specific reason. A knocker is an implicit invitation that grants a license to a person only to attempt to converse with a resident…this rule “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” (internal quotations omitted). The knocker does not, however, grant a license to search the premises with a drug-sniffing dog, and as such, the police had no right to be on the property. Scalia further clarified this distinction with an ironic example, reasoning that “[t]o 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.”

The dissent disagreed with the majority’s rationale that the police lacked the license to enter the curtilage. Justice Alito likens the police in this situation to mail carriers, who enter the curtilage of a house without knocking and without any intent to converse. Alito also noted that dogs have been domesticated for 12,000 years, and not one court has ever ruled that a dog may not accompany an owner or handler to the door of a residence.

Florida v. Jardines is a logical extension of the Court’s decision in Kyllo v. US (2005, holding that the government may not use “a device that is not in general public use” to conduct a warrantless search from the exterior of a building). It is important to note, however, that Jardines does not protect an individual in a vehicle from a drug-sniffing dog searching the area immediately surrounding the vehicle. That was decided in Illinois v. Caballes (2005). Despite this, Jardines is a victory for Fourth Amendment rights.

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