Florida asks state Supreme Court to take drug-sniffer dog case
by David Royse, The News Service of Florida
Was a dog sniffing at the front door of a suspected drug house a case of “good boy, Franky, good boy” or was he violating the Fourth Amendment rights of the people who lived there?
That question may be headed to the U.S. Supreme Court in a Florida case. The state is asking the nation’s high court to consider overturning a decision by the Florida Supreme Court, asking whether a sniff at the front door of the house by a trained narcotics detection dog is itself a search that requires probable cause.
The case involves a search of a Miami house where police had been tipped that someone was growing marijuana. After surveillance of the house turned up nothing, a detective went up on to the porch with Franky the drug-sniffing dog. Franky gave the alert signal that heâ•˙d been trained to give when smelling drugs, and at that point the police left the porch. Another detective “aware that the dog had smelled drugs” then went to the door to knock on it and, while there was no answer, he said he also smelled marijuana.
The detective then left and went to get a warrant to search the house. The information he gave to the judge noted Frankyâ•˙s alert at the house. The magistrate issued the warrant, police returned and found a lot of marijuana and arrested the resident, Joelis Jardines, as he tried to flee.
Jardines argued that Frankyâ•˙s first sniff on the porch itself was a “search” a determination that was made in a 2004 case by a federal appeals court, which had said that when the place involved in a search was someone’s “private home” a firm line remains at its entrance blocking the noses of dogs from sniffing governmentâ•˙s way into the intimate details of an individualâ•˙s life.â•ˇA trial court agreed and threw out evidence obtained at the house in a felony case against Jardines. But the 3rd District Court of Appeal in Miami disagreed, finding that a mere sniff by a dog of someoneâ•˙s front door doesnâ•˙t equal a search of the premises and no warrant is needed for the dog to go up on the porch and sniff around.
The Florida appeals court relied on a U.S. Supreme Court ruling from 2005 in an Illinois case that said that dog sniffs only find contraband, and because nobody has a legitimate privacy interest in contraband, a dog sniff is not a search. Dogs, unlike certain technological devices, such as a wiretap or a device that detects heat in a house, only alert police to illegal activity, not indiscriminately, also capturing random legal activity.
The Florida Supreme Court reversed the 3rd DCA, concluding that a dog-sniff test at the door is “a substantial government intrusion into the sanctity of the home and constitutes a ‘search’ within the meaning of the Fourth Amendment.”
The Florida Supreme Court noted the special status accorded a citizen’s home in Anglo-American jurisprudence, and ruled that a dog-sniff of a house without a warrant was â•˛an unreasonable government intrusion into the sanctity of the home.
That decision wasnâ•˙t unanimous, with Justices Ricky Polston and Charles Canady noting in a dissent that the U.S. Supreme Court had held otherwise. Because of that, Franky’s sniff cannot be considered a search violating the Fourth Amendment, Polston wrote.
The state, represented by Attorney General Pam Bondi, cited that reasoning “the disconnect with the earlier U.S. Supreme Court decision in an Illinois case in its reasoning for why the court should take up the Jardines case.
”Florida courts are now alone in refusing to follow,” that earlier U.S.Supreme Court opinion, the state˙s petition says. The state also noted that its ability to enforce drug laws would be hampered if it couldn˙t use dogs. The Florida Supreme Court˙s decision requires that the officers have probable cause before employing a dog the state˙s petition to the Supreme Court says. It is the dog’s alert, however, that often provides the probable cause to obtain the search warrant.
The state also notes that unlike in complicated cases involving the use of technology to find out what˙s going on in a house, in which someone might arguably say the state went to extraordinary Big-Brother type lengths to gather information, a dog is pretty low-tech.
”Chocolate Labrador retrievers are not sophisticated systems,” the state reminded the Supreme Court. Rather, they are common household pets that possess a naturally strong sense of smell,” it said.
“Nor was there a vigorous search effort at the front door; all Franky really did was breathe.”