Criminal Law: Dog Sniffs are “searches” under the Fourth Amendment


One of the most powerful tools the police have to investigate crime, but also that can be the most invasive of a person’s privacy, is the power to search, without a warrant.  The Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court, is supposed to limit that power, by prohibiting searches without a warrant, and prohibiting “unreasonable” searches and seizures of evidence.

It is common for police to use dogs to sniff out contraband, particularly drugs, and do so around cars and buildings.  In the past, it was unresolved if this constituted a “search” under the Fourth Amendment, and therefore requiring a warrant, or one of the numerous court-created exceptions to the warrant requirement.  In the jurisdictions where a dog sniff was not a search, the police could bring in a dog around a parked or stopped vehicle, or even a home, and if the dog “reacted” in the trained way to the presence of contraband, the officers would then search the car, or the home, without a warrant.  The theory was that because it was only the free and public air being examined, it was not an invasion of anything private and therefore not really a search — it was no different than looking at something in the public view, just using a nose instead of eyes.

On March 26, 2013, the United States Supreme Court resolved the controversy and found that indeed when a dog was used, in that case on a suspect’s front door, to sniff for drugs, it was a search, and therefore subject to Fourth Amendment protection.  The rationale was that the senses of a dog were no different than a planted GPS, or a thermal imaging device, which the Court had previously found also were searches.

The decision is a greater protection of persons and places in their homes from the power, and sometimes misused power, of the police, and is a victory for the advocates for personal rights and liberties over the power of law enforcement.

The link may change but the case is Florida v. Jardines, and can be found at:

http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf

More information about my practice and background can be found at:

http://www.eaglelawoffice.com/

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney

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