Issues
Whether police violated the Fourth Amendment by taking a dog that had been trained to alert officers of the presence of illegal substances to a house where the officers suspected, without probable cause, that marijuana was being grown.
After receiving an anonymous tip that Joelis Jardines’ home was being used to grow marijuana, Drug Enforcement Agency (“DEA”) officers conducted a warrantless surveillance of Jardines’ home. During the surveillance, a drug detection dog sniffed the exterior of the home and alerted to a smell of marijuana at the front door. Based on this positive alert, among other indications of marijuana production, the officers were granted a search warrant. The search confirmed that the house was being used as a marijuana grow house and Jardines was charged with drug trafficking and grand theft for stealing electricity. Jardines successfully moved to suppress evidence of the dog sniff outside his home by arguing that the sniff constituted an unreasonable search under the Fourth Amendment. The Florida Third District Court of Appeal reversed and held that the canine sniff was not a Fourth Amendment search. The Florida Supreme Court ultimately reversed the appellate court’s decision and held that a dog sniff is a substantial government intrusion into the sanctity of the home and constitutes a search within the meaning of the Fourth Amendment. The State of Florida then filed a petition for a writ of certiorari with the United States Supreme Court. This decision could affect a crucial method used by DEA agents and police officers to detect and seize illegal substances and will clarify the right held by individuals such as Jardines in preventing invasions of privacy.
Questions as Framed for the Court by the Parties
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?
Facts
On November 3, 2006, the Drug Enforcement Agency ("DEA") received an anonymous tip that home of Respondent, Joelis Jardines, was being used as a marijuana grow house. On the morning of December 6, 2006, several DEA agents conducted a warrantless surveillance of Jardines’ home. The agents were then joined by a canine officer and his drug detection dog, Franky. Franky began to track the smell of marijuana, which he signaled to the officers.
Another officer, Detective William Pedraja, knocked on Jardines’ door several times and claims to have smelled the scent of live marijuana personally. He also noticed that the air conditioner was constantly running for over fifteen minutes, which, in his experience in dealing with grow houses, is a common practice to counteract the heat from high intensity light bulbs. Pedraja obtained a search warrant later that day and returned to search the home. The search confirmed that the house was being used as a marijuana grow house and Jardines was arrested.
Jardines was charged with trafficking in excess of 25 pounds of cannabis, a first degree felony, and with grand theft for stealing over five thousand dollars of electricity from Florida Power & Light to grow marijuana, a third degree felony. Jardines moved to suppress evidence asserting that the dog sniff outside his home constituted an unreasonable search under the Fourth Amendment. The trial court granted his motion to suppress and found that the use of a drug detector dog at Jardines' door constituted an illegal search. The court further discounted Pedraja’s claim to have smelled marijuana because it was only a confirmation of what the dog had already revealed. Further, the court stated that the anonymous tip and Pedraja’s observation of the air conditioner running constantly was insufficient to establish probable cause to issue a search warrant.
The State of Florida appealed and the Appellate Court reversed the holding, ruling that a dog sniff is not a Fourth Amendment search and that the dog and officer were legally present at Jardines’ front door. The court explained that a dog sniff only detects contraband and, because an individual does not have a legitimate privacy interest in contraband, a dog sniff is not a search under the Fourth Amendment.
On appeal, the Florida Supreme Court reversed the Appellate Court’s decision and held that, in this case, a dog sniff was a substantial government intrusion into the sanctity of the home and constitutes a search within the meaning of the Fourth Amendment. The court reasoned that the sanctity of a citizen’s home is a basic tenet of Anglo-American jurisprudence and that probable cause must be established prior to conducting such a search at a private residence. The State of Florida filed a petition for a writ of certiorari with the United States Supreme Court.
Analysis
The Fourth Amendment guarantees that “the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” Florida claims that a dog sniff does not constitute a Fourth Amendment search requiring a warrant based on probable cause if the officer and dog are lawfully present outside the front door of a house because the dog can only detect the presence of contraband. Jardines argues that the dog sniff violated his Fourth Amendment rights because special protection is offered to the home and police violated his expectation of privacy by unlawfully entering his property without a warrant based on probable cause.
DOG SNIFFS AND THE FOURTH AMENDMENT
Florida argues that, under Supreme Court precedent, a dog sniff does not constitute a Fourth Amendment search requiring probable cause. Florida bases this argument on three prior Supreme Court cases permitting warrantless sniffs: United States v. Place, City of Indianapolis v. Edmond, and Illinois v. Caballes. Florida argues that these cases have construed dog sniffs as sui generis, or unique, because the sniff is very limited as to the information it provides: the sniff only reveals the presence or absence of narcotics. In Place, the Court held that a dog sniff of luggage at an airport did not violate the Fourth Amendment because the sniff does not expose the privacy of the luggage owner in the same manner as a manual search by a police office. Similarly, in Edmond, the Supreme Court held that a dog sniff of a car did not constitute a Fourth Amendment search because the sniff could only disclose the presence or absence of narcotics and did not involve government intrusion into private and intimate areas, given that the dog only walked around the vehicle. Finally, in Caballes, the Supreme Court held that a dog sniff of a car did not constitute a Fourth Amendment search because a dog sniff could only reveal the presence or absence of contraband, and there is no legitimate private interest in contraband. Thus, Florida argues, Supreme Court precedent establishes that dog sniffs do not constitute a Fourth Amendment search requiring probable cause because they are unique in that they can only establish the presence or absence of contraband and do not violate a legitimate privacy interest.
Jardines argues that the Supreme Court’s decisions in Place, Edmond, and Caballes do not establish that a dog sniff at the door of a house is not Fourth Amendment search. Jardines notes that the dog sniffs in those cases included a sniff of luggage and cars, not homes. Jardines argues that this distinction is crucial: although the Supreme Court in Caballes focused on the fact that government conduct that only reveals contraband does not compromise a legitimate privacy interest, the Supreme Court reconciled this focus with its previous holding in Kyllo v. United States by distinguishing the two factual contexts. Kyllo involved a searching tool (a thermal imaging device) used to reveal private details from a home, details which might or might not be unlawful; Caballes involved a searching tool (a narcotics detection dog) used to reveal the unlawful details of the trunk of a car stopped on a public street. Thus, Jardines argues that if the search intrudes into the privacy of the home and violates an individual’s subjective expectation of privacy by providing details of what is happening inside the home, then that search is a Fourth Amendment search and requires a warrant based on probable cause.
EXPECTATIONS OF PRIVACY INSIDE THE HOME
Jardines argues that the Supreme Court has always given special protection to privacy within the home and the right to be free from governmental intrusion into the sanctity of that home unless a warrant is issued based on probable cause. Jardines primarily relies on two Supreme Court cases for this proposition: Kyllo and United States v. Karo. In Kyllo, the Supreme Court held that the use of a thermal imaging device by police to detect heat inside a home violated the Fourth Amendment because such a search violates an individual’s subjective expectation of privacy by revealing details inside the home, even if there is no physical intrusion into the property by police officers. In Karo, the Supreme Court held that the activation of a beeper inside a can of ether, used to extract cocaine from clothing, constituted a Fourth Amendment search because the beeper revealed information that police could otherwise only have acquired by entering the home.
Florida argues that a dog sniff does not become an unlawful Fourth Amendment search just because it occurs outside a home. First, argues Florida, the sniff occurred along the ordinary path to the front door that visitors, the mailman and even police officers are expected to use, and thus could not have violated the sanctity of Jardines’ home. This, Florida says, means the officers and dog were lawfully present outside the front door, even if they did not have a search warrant.
Second, Florida argues that Kyllo’s prohibition of the use of searching tools to uncover details inside the home does not apply to dog sniffs. Florida argues that the device in Kyllo is fundamentally different from the device used here because a thermal imaging device reveals private and lawful activity; a narcotics dog can only reveal unlawful activity. Furthermore, Florida argues that the Supreme Court’s concern in Kyllo was the use of high-tech devices eroding Fourth Amendment protections. Florida notes that dogs, on the other hand, have been used by law enforcement for centuries and a sense of smell, be it canine or human, is not a high-tech device representing rapid technological change. Finally, Florida argues that even when the dog tracked the smell of marijuana to its strongest point at the base of Jardines’ front door, the dog was only smelling the air outside the house.
Jardines counters by arguing that it does not matter if the dog only smells the air outside of the home. In this case, Jardines believes, the narcotics dog was behaving in a manner consistent with devices in Kyllo and in Karo by revealing details inside the home that could not otherwise be known without the police physically entering the premises. Furthermore, Jardines argues that Florida’s contention that the dog sniffed odors outside the home also runs contrary to the Court’s decisions in Kyllo and Karo. In those cases, the police used search tools to gather inferences about what was inside the home through what was emanated from the home; the police in this case used the dog in a similar fashion. Thus, argues Jardines, a Fourth Amendment search occurs even where the police officers are lawfully outside the home but use search devices to obtain information or draw inferences about what is going on inside the home from what is emanating from the home.
Discussion
This decision has the potential to affect the methods that DEA agents and police officers use to detect illegal substances. The State of Florida argues that the Florida Supreme Court decision will jeopardize a widely used and reliable method of detecting illegal drugs. Respondent Jardines argues that the method is not reliable and that the method may lead to indiscriminate and discriminatory searches of homes.
THE EFFECTIVENESS OF A WIDELY USED DRUG DETECTION METHOD
In supporting Florida, Texas and eighteen other states (“the states”) argue that drug detection dogs are an essential, widely used, and reliable method of detecting illegal drugs. For example, in Virginia, there are eighteen teams which, in 2010, led to 118 arrests and 127 drug seizures. The states further note that nationally, the DEA uses drug detection dogs which, in 2010, led to the eradication of 4,700 indoor grow sites in 46 states. U.S. Customs Service has more than 600 drug-dog teams which led to over 9,220 seizures of narcotics and other drugs in one year.
Furthermore, the National Police Canine Association and Police K-9 Magazine argue that drug detection dogs are reliable and point to the extensive training and certification process that drug detection dogs go through. For example, Franky was trained to alert to six odors through one forty-hour block of preliminary training and a sixty-day primary training. Then, the dog received three yearly certifications and continues weekly maintenance trainings. Franky’s alerts have led to the detection and seizures of approximately 13,008 grams of cocaine, 2,638 grams of heroin, 180 grams of methamphetamine, and 936,614 grams of marijuana.
In response, the Rutherford Institute argues that dogs are not reliable detectors of the presence of narcotics inside a home. The Rutherford Institute states that dogs are not reliable because there are many instances and studies which show that drug-dogs often create false alerts. For example, the Rutherford Institute points to a study which resulted in drug detection dogs successfully identifying illegal substances 15% of the time and falsely alerting 85% of the time. In the study, only one dog out of eighteen trained drug detection dogs did not falsely alert.
A group of Fourth Amendment scholars further support Jardines by arguing that scientific evidence demonstrates that drug detection dogs alert to non-contraband substances, not the illegal drug itself, which leads to false alerts. For example, dogs trained to detect cocaine are actually trained to detect methyl benzoate, a decomposition product that is produced when cocaine is exposed to humid air, which is also found in many types of flowers, perfume, and food additives. The scholars further note that dogs trained to detect heroin are actually trained to detect acetic acid which is present in vinegar, aspirin, food additives, and “green” or “earth friendly” household cleaning supplies. Although there is no empirical data on canine marijuana detection and whether other substances exist that could produce a false alert, the Fourth Amendment scholars argue that there are legitimate reports that suggest that many drug detection dogs falsely alert to the presence of marijuana.
POSSIBLE INDISCRIMINATE AND DISCRIMINATORY SEARCHES
The National Association of Criminal Defense Lawyers and the Florida Association of Criminal Defense Lawyers ("the associations") argue that allowing the use of drug detection dogs without requiring probable cause is likely to lead to serious encroachments on Fourth Amendment protections. They argue that these searches will lead to indiscriminate and discriminatory searches as officers are permitted to use dogs in a search whenever and wherever they desire. The associations are particularly worried that the unrestricted use of detection dogs could lead to sweeps based on nothing more than an officer’s intuition or prejudice and could consequently jeopardize the rights of often marginalized groups.
In response, Florida argues that the use of drug detection dogs, a century-old law enforcement technique, does not and would not lead to indiscriminate and discriminatory searches. The State argues that drug detection dogs have practical limits because the searches are time-consuming and the dogs used are expensive. Because of these practical reasons, the State alleges that neighborhood-wide sweeps are impractical and have never happened.
Conclusion
The Supreme Court’s ruling in this case will decide whether a dog sniff around the exterior of a home constitutes a Fourth Amendment search which requires probable cause. If the Court adopts the State of Florida’s position, a dog sniff of the exterior of the home will not constitute a search and officers will not need to establish probable cause before they use a drug detection dog in their investigation. On the other hand, if the Court sides with Jardines, a dog sniff of the exterior of the home will constitute a search and officers will need to establish probable cause before they use a drug detection dog in their investigation. The decision may hinge on whether the Court finds that this century old method leads to indiscriminate and discriminatory invasions of privacy.