Drug Sniff by Police Dog Is a Search, Supreme Court Rules

By Mark Walsh — March 26, 2013 4 min read
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The U.S. Supreme Court on Tuesday held that the police use of a trained dog to sniff outside a home for the presence of illegal drugs was a search, in a case being watched for its implications on the use of such dogs in the schools.

“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,” Justice Antonin Scalia wrote in a 5-4 decision in Florida v. Jardines (Case No. 11-564).

Defense and civil-liberties advocates had worried that a ruling that went the opposite way could give the police license to significantly broaden their use of the tactic, including to “walk a narcotics dog up and down the halls of a school to sniff the students passing by,” as one brief put it.

In a related decision in February, the justices unanimously rejected requiring the police to meet broad training and certification requirements for contraband-sniffing dogs. That decision in Florida v. Harris, which rejected a lengthy certification checklist that Florida’s highest court had said such dogs had to meet, was viewed as keeping the door open for the continued use of dog sniffs in the schools and elsewhere.

Whether the new ruling will curtail such uses remains to be seen. On one hand, the Jardines decision marks the first time the Supreme Court has clearly stated that the use of drug-sniffing dogs represents a search under the Fourth Amendment. On the other hand, the decision turned significantly on the fact that the search in question was at a home.

The case involved Joelis Jardines, whose home was approached in 2006 by a drug-sniffing dog and handler with the Miami-Dade County, Fla., police department. The dog, Franky, was trained to detect the odor of marijuana, cocaine, heroin, and other drugs.

Franky alerted at the front door of the house, which the police used as the basis to obtain a warrant for a full search of the house, which turned up marijuana plants and growing equipment. Jardines’s arrest was thrown out by both a trial court and the Florida Supreme Court, which held that the use of a drug detection dog at the door of the home was a search under the Fourth Amendment and had to itself be justified by probable cause.

Scalia quoted court precedent to say that at the core of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”

The area immediately surrounding the home, known as the “curtilage,” enjoys similar protections, and the police have only the same license as others, including “the nation’s Girl Scouts and trick-or-treaters,” Scalia said, to approach a home’s front door and even talk to those who answer the door knocker.

“But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else,” Scalia said. “The background social norms that invite a visitor to the front door do not invite him there to conduct a search.”

His opinion was joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan,

Kagan, in a concurrence joined by Ginsburg and Sotomayor, said she would go further and hold that the police conduct in the case was an invasion of privacy.

Justice Samuel A. Alito Jr., in a dissent joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Stephen G. Breyer, said the majority’s decision was not supported by trespass law and that dogs have been used in law enforcement for centuries for their “acute sense of smell.”

Alito said English and American common law about trespassing had not drawn lines between welcome and unwelcome visitors (such as Girl Scouts selling cookies versus aluminum-siding salesmen, the justice suggested). He cited the somewhat bizarre case of a school district whose liability was limited in the case of a teacher who had fallen through a trap door because the teacher was on private business at the time and thus acting as a “business invitee,” not a staff member.

Alito noted that the Supreme Court has held that the police do not engage in a search when they approach a home and knock seeking to speak to an occupant, and the officer handling the dog did not exceed the scope of such normal license.

“He adhered to the customary path,” Alito said. “He did not approach in the middle of the night; and he remained at the front door for only a very short period (less than a minute or two).”

In a passage with potential significance for school searches, Alito said it was his understanding that because the majority decision rests on the physical intrusion of a constitutionally protected area, the holding “does not apply when a dog alerts while on a public sidewalk or street or in the corridor of a building to which the dog and handler have been lawfully admitted.”

A version of this news article first appeared in The School Law Blog.