Over at Volokh Conspiracy, Orin Kerr raises an interesting question:
What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.Florida is seeking cert, so this may come before the Supremes. While most of us would hope that if the Supreme Court grabs hold of this case, it would use it to backdoor out of Caballes on the basis of dog sniffs being unworthy of constituting probable cause.
Between the inherent unreliability, the ease of manipulation by handlers and the fact that no one can cross the dog, the myth of the dog sniff has long been a gaping hole in any rational view of searches and seizures. But no one really expects that to happen, as doggies are cuter than defendants and the dog sniff myth is too deeply embedded in our jurisprudence to acknowledge that it’s utter nonsense.
Even though Orin argues in favor of a Fourth Amendment approach called An Equilibrium-Adjustment, essentially the Court just making stuff up and trying to wrap it in some pseudo-doctrinal ribbon so that we’ll believe there’s an actual rule to justify it, let’s assume that the Supreme Court might take an approach that is nominally grounded in reason, perhaps a bit of precedent thrown in for good measure. What then?
Orin offers a recap of the morass of search and seizure rules that defy logic (and thus comprise the basis of his new theory):
There are hundreds of different investigatory practices that the police might use to collect evidence, and there is no single guide for how to classify particular practices as a “technique.” At the same time, the law interpreting the Fourth Amendment has to end up classifying each use of each practice somehow. This creates lots of line-drawing and classification problems that come up in Fourth Amendment law all the time. In my view, the earlier case of a dog sniff around a car was tricky because the use of sense-enhancing devices often raise hard problems: Everyone agrees that use of human senses can’t themselves violate the Fourth Amendment (eyesight, hearing, smelling, etc.), and the Court has held that the use of some sense-enhancing devices is okay (such as flashlights) while the use of other sense-enhancing devices crosses the line and becomes a search (such as the use of thermal imaging devices on a home).
Other than a rule that it is/isn’t a search because it’s Tuesday, does a dog sniff at the front door constitute a search?
In the comments to the post, what emerges as one of the more rational distinctions is that in most single family homes, the police (with canine) must enter upon the curtilage before reaching the front door. This creates a significant and long-held barrier that doesn’t exist in a vehicle stopped on the road, though it doesn’t help apartment or condo dwellers much.
However, if one views a police approach to a home as invited, as normal folk who want to ask a harmless, innocuous question of a person within a residence would trot up to the front door, ring the bell and inquire, perhaps the curtilage distinction fails. After all, we know from Justice Alito’s opinion in Kentucky v. King that cops are just as entitled to mosey up to your door like your bestest friend, where if they happen to smell marijuana, can
If the police can do it without a dog, why would having a pooch at their side change the equation?
Of course, none of this would present an issue if the Court decided to let go of their love of dog sniffs as a proxy for probable cause. As Orin wryly notes :
Putting aside that hearsay is admissible in suppression hearings, is a “woof!” admitted for the truth of the matter asserted?
That’s the “woof” that launched a thousand automobile searches. Is it good enough to open a thousand front doors as well?
Update: Cert granted. Oh boy.