A Sniff Too Far (Update)

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 pound and threaten knock and ask permission to search. While this happened in an apartment building, Alito’s rationale makes nothing of the detail, holding instead that it’s no constitutional violation to do what ordinary people do, walk up to a front door and, well, let their presence be known.

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.

20 thoughts on “A Sniff Too Far (Update)

  1. Burgers Allday

    If I recall correctly, at oral argument for King, one of the Justices (Sotomayor, IIRC) raised the possibility that sniffing dogs would be brought door to door.

    “Orin wryly notes”

    I think is more coy than wry. There are certain issues that Professor Kerr seems to assiduously avoid. His whole post is a bit of misdirection, carefully analyzing the non-issues.

  2. Deoxy

    [Edit Note: If you want to comment, you’re going to have to use a real email address. If you don’t want to, that’s fine, but then your comments won’t be posted. Sorry, but that’s the deal.]

  3. Bill

    To me, the real question is not whether or not dog sniffs at a door constitute a search; the question is if they are even reliable enough to provide probable cause for a search. Cases generally only go to court when the dog is right, but even a broken clock is right twice a day. How many false positives are dismissed with, at most, an apology and a “better luck next time”? Do we really know if the dog is right 90% of the time, or one in a hundred?

    Our current approach also solves the curtilage problem, though. After all, if the dog’s superior sense of smell can detect drugs from the front step, why not from the curb, or from the police station, for that matter?

  4. Alabaster

    Police state is coming and the right is wooping and cheering thinking they’ll be in charge. What a shock it will be when the chearleaders look around and find themselves in the same jail cell as the rest of us for “being human”.

  5. SHG

    While the “real question” has long since been answered (making the point legally irrelevant), we  know the answer.  Dogs are tested and certified, with some certification standards as low as 50%, and even that is relatively dubious.  In other words, you’re as likely to find drugs using a dog as flipping a coin.

    And that’s sufficient to constitute probable cause, you ask in amazement? Why yes. Yes it is.  United States v. Place (1983). The dogs are “specially trained,” you know, and that makes them special.

  6. Richie Rich

    Cops have no scruples and push the limits to the breaking point all the time. Dog handlers constantly falsely alert dogs to get PC without a shred of concern for rights, and dogs are like jurors: picked for their ,malleability and easily used to get results despite the truth or the law. A dog to a cop is no more than a blank warrant ready to bark a signature and allow an arrest.

    Cops hate any limits put on them as they see rights as bothersome impediments to their desired total power. Caballes was a tragedy and now cops will of course abuse private homes to seek out pot smokers while rapists run free. King allowed any noise, whether real or not, as reason to slam a door down, and the founding fathers are spinning in their graves. This nation has a sickness, with far right wing nutters in charge and slavering to do away with all protections…after all, if someone MIGHT be breaking a law, even an insane one like prohibition, then they lose all rights and the cops become the heroes…sick sick sick…god help us all.

  7. DC Treybil

    A government that governs least is a RE-active government. That is, it responds after a crime.

    Walking a dog around a car or home either one is PRO-active.

    One of the checks provided by RE-active law enforcement is that it to a degree inhibits “opportunistic” law enforcement. If officials can’t act without a complaint from a private citizen, they are more likely to be responding to something that SHOULD be responded to. That citizen complaint at one time was a good portion of “probable cause”, which I understand has become separate from the requirement from a warrant based on other rulings.

    If nobody is complaining, why should officers go looking? How is anybody supposed to breathe free in their liberty with that going on?!

  8. SHG

    Thank you for your use of ALL CAPS as a way to fully appreciate the depth of thought you’ve put into this issue.  I always find that the use of ALL CAPS makes complex thoughts much easier to understand. And the scare quotes around probable cause was also a nice touch.

  9. DC Treybil

    Oh, you’re VERY welcome! What would be even MORE welcome would be a way to use italics, bold, or underscore on this board. I didn’t see those. Did YOU by any chance find them?

  10. SHG

    In fact, I have all those abilities and more.  As this is a criminal defense law blog, however, most commenters prefer to make subtle and nuanced points through the careful use of language rather than typographical gimmicks.

  11. Malcolm Kyle

    I’m sure that all of us here are aware of what meth and cocaine do, and also what alcohol and tobacco do, but the point worth making is that Prohibition causes far worse problems than any drug or mind-bending concoction ever dreamed up in a bath-tub.

    [Edit. Note: Balance of lenthy, off-topic generic rant against prohibition, replete with links, deleted.]

  12. DC Treybil

    It appears that this is a blog for legal professionals working on actual cases. As a lay person, I probably don’t have the background to contribute what is sought here.

    I am not intimately familiar with numerous court rulings or procedures (thankfully – if I ever do, it’ll either be as a juror, a witness or a [shudder] defendant). I am all for any person, including accused – innocent or otherwise, hanging onto their life, liberty and property. So, I am sincere in wishing the best for you and your client(s), if any, in cases where this issue (walking policed dog to door just because) may be germane.

    In the courtroom, there have to be rules. And the rules have to be followed. And those rules, among other things, limit what may be presented. And court rulings and legislation are among the things included.

    But no matter how far back those rules go, and how well they are observed, eventually they can lead to results far from what is intended.

    At the very least, government exists to prevent invasions from without and convulsions from within (riots). Arguably, if a totally illegal act will not invite invasion or provoke riot, I’m completely ok if officials decide to not act. The cure may be worse than the disease.

    So when I read that a state court is being questioned when they invalidate the practice of allowing a dog to walk up to someone’s door “just because”, I feel the need to say (pretend for the moment that the word following the parenthesis is bold, underscored and in italics) something.

    I’ve read Natelson’s “The Original Constitution”. In it, he says the federalist papers were sometimes consulted by justices to determine, as best they could, the original intent.

    In Federalist 78, Hamilton asserts that the supreme court is there to act as referee between the Congress and the people. Should Congress substitute its will for that of the people, the court is there to intervene. If the will of the Congress is not supposed to be substituted for the will of the people, is the will of the court to be substituted for the will of the people?

    No. Clearly not.

    If the supreme court did overturn the state court’s ruling on this, that would give Gingrich et al ammunition to garner public support and pursue impeachment of sitting justices.

    In Marbury v Madison, Justice Marshall read the supremacy clause as meaning the constitution itself plus legislation and treaties passed in pursuance of the constitution were the supreme law of the land. Court rulings are not on that list. Legislation is required to give court rulings force of law, except to parties in the case. Legislation can overturn rulings. This has been avoided, but there’s a first time.

    I’m crowding the 3,000 character limit, so I’ll close restating my best wishesfor you and your clients in cases related to this issue. Let’s hope the matter can be resolved in court without resorting to political remedies . . .

  13. SHG

    Sigh. It would have been wonderful if you stopped after the first paragraph. No, you have nothing to contribute to the discussion, and yet you went on for 11 more paragraphs.

  14. Bergman

    If it is ruled not a search to bring a dog to the front door to sniff the place, I foresee a major surge in the use of high fences and secure gated entryways.

    A dog out at the gate, 20 feet, 50 feet, 300 or more feet from the front door can’t smell anything coming from that house. At least, not well enough to generate even reasonable suspicion, let alone probable cause.

  15. Don

    “What limits…does the Forth Amendment place…? Since government decides the limits placed on itself, the answer is: NONE. For example, when the Supremes post contradictory/irrational/confusing decisions the people are left with no standard of justice. Once upon a time it was the jury who judged the law as per centuries of English tradition and justly so. No more. Corrupt judges through jury instruction have unconstitutionally acted to misinform and nullify the juries. FIJA has been barred from educational activities by authoritarian judges threatening arrest. Not to mention the removal of informed jurors. Got Justice? Not here!

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