On February 19, 2013, the Supreme Court announced its decision in Florida v. Harris, and on March 26, the Court announced its decision in Florida v. Jardines.  Both cases involve the use of narcotics detection dogs and the Fourth Amendment.

The question in Florida v. Harris was whether a narcotics detection dog’s “alert” constitutes probable cause for the search of a private vehicle.  In a unanimous opinion delivered by Justice Kagan, the Court held that because the training and testing records demonstrated the dog’s reliability in detecting drugs–and the defendant failed to undermine that evidence–the dog’s “alert” provided probable cause for searching the vehicle.  The Court did not go so far as to find that the State is required to establish the training and reliability of the dog for purposes of determining probable cause.  Having said that, a defendant is not without recourse if the drug sniffing dog’s “alert” is used to procure evidence that is being used against a defendant.  If a defendant can produce evidence of the unreliability of the dog or the inadequacy of its training such evidence may be presented at a subsequent probable cause hearing.

Florida v. Jardines considered whether taking a narcotics detection dog to smell the exterior of a house where police suspect marijuana is being grown constitutes a search under the Fourth Amendment.  In an opinion delivered by Justice Scalia, the Court held by a vote of 5-4 that the dog sniff did constitute a search for purposes of the Fourth Amendment.  Justices Thomas, Ginsburg, Sotomayor and Kagan joined the majority opinion.  Justice Kagan filed a concurring opinion, which was joined by Justices Ginsburg and Sotomayor.  Justice Alito filed a dissenting opinion, which was joined by Chief Justice Roberts and Justices Kennedy and Breyer.

The holding in Jardines acknowledges that a police officer walking up to a citizen’s front door is not a search or trespass.  The officer, like any other citizen, has an implied consent to walk to the front door and knock.  In Jardines, the officers brought a drug sniffing dog on the premises to conduct a sniff of the premises.  The Court held such conduct to constitute a search because the objective intention of the officers was to conduct a search.   So, when agents of the State enter the curtilage of the home in a manner that objectively reveals the purpose of conducting a search their entry is an unauthorized physical intrusion and therefore a search.  This finding appears inconsistent with the current state of the law, which is that using a trained dog to conduct a drug sniff does not constitute a search in other contexts.

The cumulative effect of both holdings is beneficial to the State for purposes of the use of drug sniffing dogs in public areas.   On the other hand, it provides a higher level of privacy for citizens in and around their home.  Police may continue to use drug sniffing dogs in public places, such as airports, to establish probable cause without having to comply with any formal standard.  Such conduct is not considered a search.  On private property surrounding the home, the use of a drug sniffing dog is a search and requires probable cause, i.e., individualized suspicion.

Mark W. Catanzaro and Daniel M. Rosenberg are litigation attorneys who practice criminal and civil law in New Jersey, New York and Pennsylvania.  Both Mr. Rosenberg and Mr. Catanzaro represent clients charged with offenses resulting from searches and seizures in criminal matters.  For legal assistance or representation, Mr. Catanzaro and Mr. Rosenberg can be contacted at (609) 261-3400.