In a decision that could affect not only West Virginia criminal defense attorneys, but criminal defense attorneys across the country, the United States Supreme Court recently ruled that a dog sniff on a front porch could be considered a search in the case of Florida v. Jardines.
In 2006, the Miami-Dade Police department received an unverified tip through its crime-reporting tip line that a particular property was being used as a grow house for marijuana. Two months later, two detectives approached the residence with a drug-sniffing dog, while Drug Enforcement Administration (DEA) agents stood by as back-up units. There were no signs in the residence that anyone was at home. One detective approached the front door of the house, where the dog sniffed and alerted him to the presence of drugs. The other detective then approached the front door and smelled marijuana. The detectives subsequently prepared an affidavit for a search warrant, which was granted. The detectives then searched the house and discovered marijuana being grown inside. The homeowner was later arrested.
At trial, the defendant moved to suppress the evidence and was initially successful. However, the State of Florida, representing the detectives, appealed the decision to the Florida Third District Court of Appeal and was able to get it reversed. The Third District Court of Appeal claimed that, based on previous U.S. Supreme Court cases, a dog sniff was not an actual search. The cases included United States v. Place (where a dog sniffed luggage temporarily seized at an airport), City of Indianapolis v. Edmond (where dogs sniffed the exteriors of vehicles after they had been seized), and Illinois v. Caballes (which featured "minimally intrusive" dog sniffing at routine traffic stops).
The defendant then appealed to the Florida Supreme Court, which reversed the Third District Court of Appeal, finding that the Fourth Amendment drew a "firm line" at the entrance of one's home, and that the dog sniff constituted an unreasonable intrusion by the government in violation of the Fourth Amendment. Finally, the State of Florida petitioned the U.S. Supreme Court for a writ of certiorari, and the Supreme Court granted it in January 2012.
Its 5-4 opinion in favor of the defendant was written by Justice Scalia, with Justice Kagan writing a concurrence joined by Justice Ginsburg and Justice Sotomayor, and the dissent was written by Justice Alito, who was joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer. Justice Scalia approached the issue from the perspective of ancient common law property rights. He found that bringing a dog onto someone's property to conduct a test constituted a trespass at common law, which constituted a violation of the Fourth Amendment regardless of whether it also violated someone's reasonable expectation to privacy.
Meanwhile, Justice Kagan argued whether, under a property- or privacy-based Fourth Amendment test, no one would think it was reasonable behavior for a stranger to come onto the porch with a pair of high-powered binoculars. In that respect, the dog sniff was no different and was just as much a violation of the defendant's reasonable expectation of privacy.
The four dissenting Justices found no common law support for Justice Scalia's conclusion that the dog's sniffing was a trespass, given that both the public and police alike are free to approach the front door. They also thought that it did not constitute a violation of reasonable expectation of privacy since the odors from the house could have drifted to the street, where a dog sniffing them would not constitute a search.