Dogs, Drugs and the 4th Amendment

A pair of K-9 decisions from the Supreme Court brings both good and bad news for law enforcement.

Florida v. Jardines

Narcotics officers in Miami-Dade had a tip that Joelis Jardines was growing marijuana in his house. They had no corroborating information sufficient to get a search warrant, so they took a drug-detector dog up the driveway and onto the front porch. After a minute or two of sniffing around, the dog alerted at the front door. The officers used the evidence of the K-9 hit to obtain a warrant, under which they found and confiscated marijuana plants.

Jardines was charged with trafficking in cannabis (and stealing the electricity that powered his grow operation). He moved to suppress the evidence obtained under the warrant, on the ground that the K-9 sniff was an unlawful search that tainted the PC in the affidavit. When the case reached the U.S. Supreme Court, a five-member majority of the justices agreed with Jardines and ordered the warrant quashed and the evidence suppressed.

The new, alternative definition of “search” created by U.S. v. Jones has far-reaching implications for many other investigative practices, in addition to GPS tracking. In Jardines, the court majority applied this newer definition to find that officers violated the Fourth Amendment by bringing a drug-sniffing dog onto the curtilage of Jardines’ home.

Although the court agreed that it is commonly accepted that visitors (including police) have an implied license to approach the front door of a residence, the scope of that license does not allow what officers did in this case. The court said:

“The scope of a license — express or implied  —is limited not only to a particular area but also to a particular purpose. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search. The government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

The court was careful to note that this decision does not invalidate the “knock-and-talk” practice of seeking an interview at the suspect’s doorway. The opinion states, “A police officer not armed with a warrant may approach a home and knock. The mere purpose of obtaining information in the course of that permitted conduct does not violate the Fourth Amendment.”

Although the ruling does not say so, it will still arguably be permissible to use a K-9 within the curtilage without a warrant when attempting rescues, tracking dangerous fugitives, and searching for explosives, since those “searches” would be justified by exigent circumstances.

K-9 Summary

The Supreme Court has decided five K-9 cases, with the following operable rules:

  1. A non-trespassory dog sniff is not itself a search. (U.S. v. Place)
  2. Vehicles may not be stopped at a highway checkpoint just to allow a K-9 sniff for drugs. (Indianapolis v. Edmond)
  3. At a lawful traffic stop, a K-9 can be walked around the vehicle to check for drugs. (Illinois v. Caballes)
  4. An alert from a reliable K-9 is PC to search a lawfully stopped vehicle for drugs. (Florida v. Harris)
  5. Bringing a K-9 onto the residential curtilage to sniff for drugs is a search, requiring either a warrant or some exception. (Florida v. Jardines)

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Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including “Investigative Constitutional Law.”

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