Can a police drug dog legally sniff your house?

April 06, 2013 (Press-News.org) Can a police drug dog legally sniff your house?

Article provided by R. Todd Bennett, P.C.
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The Fourth Amendment to the U.S. Constitution ensures that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The case law defining and carving out exceptions to that phrase is ever expanding. Though the Fourth Amendment implications of using drug detection dogs is largely settled, the U.S. Supreme Court could make sweeping changes to law enforcement's ability to investigate narcotics cases based on a pair of cases from Florida.

The U.S. Supreme Court has long held that police may use drug detection dogs to smell the free air so long as they are lawfully in the location where the sniff takes place. Drug dogs are trained to alert if they detect the smell of marijuana, methamphetamine, heroin and/or cocaine. The Supreme Court has said that a dog sniff of the exterior of vehicles, luggage, people, packages, etc. is not a search for Fourth Amendment purposes.

U.S. Supreme Court faces unusual issues of search and seizure

Presently at issue in the Supreme Court is the certification of these drug dogs and whether a dog can be used to sniff the exterior of a residence. The cases pit the war on illegal drugs against the sanctity of the home. To evaluate these issues, the Court is considering two appeals from the Florida State Supreme Court. In those cases, the Florida court suppressed drug evidence based on the sniff of a home's front door and based on a dog's lack of proper training and certification.

In Florida v. Jardines, Miami police acted on a tip that the defendant was growing marijuana in his residence. Officers approached the home's front door, which was open to the public, with a drug dog. The dog alerted after sniffing the door, which officers used to obtain a search warrant. They found several marijuana plants and over 25 pounds of marijuana in the home. The Florida Supreme Court suppressed the evidence, ruling the dog sniff was a search and an "unreasonable government intrusion into the sanctity of the home."

In the second case, Florida v. Harris, police pulled over defendant Clayton Harris for an expired tag. After refusing the officer's request to search his pickup truck, officers brought in a drug detection dog that alerted on the driver's door handle. Officers searched the truck and found 200 pseudoephedrine pills and 8,000 matches, which the officers recognized as ingredients for making methamphetamine.

The Florida Supreme Court overturned Harris' conviction, ruling that the government had not sufficiently demonstrated the dog's reliability with evidence of his field performance, showing only his training and certification.

In oral arguments before the U.S. Supreme Court in late October, the justices seemed skeptical of the government's claim that the sniff of a home's exterior was not a search. However, they appeared to agree that the government's burden of proving a dog's reliability should not be set too high. Whether or not the Court rules on the issues as anticipated, its decision will more specifically frame an issue with far reaching effects in the world of search and seizure.

Protecting Constitutional rights

When someone has been accused of a crime, their life and liberty are on the line. And sometimes, as these two cases illustrate, the accused's rights might have been violated in the process. If you are ever the subject of a criminal investigation, you need a committed criminal defense attorney by your side through every stage of the process. It is their job to keep up with cases like the ones currently before the Supreme Court and use all the latest rulings to make sure you are treated with dignity and fairness.