The United States Supreme Court has previously held that a drug dog's sniff of a lawfully stopped vehicle and seized luggage at an airport is not a search under the Fourth Amendment. Recently, however, a divided Supreme Court limited the constitutionality of a drug dog's sniff of a home in Florida v. Jardines. In so ruling, the majority found the warrantless drug dog sniff of a home could not lawfully occur because, under the Court's traditional, property-based search analysis, the officer and the drug dog exceeded their implied license to approach the homeowner's front door. The majority's limited and archaic analysis, however, offers no rationale in situations where a drug dog, which has not trespassed, sniffs a home. The concurring opinion agreed that a trespass occurred, but rightfully expanded its analysis under the Katz v. United States reasonable expectation of privacy test and found that the sniff was unreasonable because in the home "all details are intimate details." The concurring opinion correctly pointed out that the Court's holding in Kyllo v. United States controlled and wholly invalidated the warrantless sniff of the home, regardless of the location from which it may occur. Disagreeing on both grounds, the dissent incorrectly focused on the contraband the sniff revealed to validate the practice rather than focusing on the historic and vital importance that Fourth Amendment jurisprudence has afforded the home. The use of drug dogs is a common law enforcement technique. Thus, practitioners on all sides of the criminal justice arena must therefore understand and prepare for the ramifications of the Court's decision.
The Fourth Amendment to the United States Constitution firmly establishes an individual's right to be secure in his or her home from unreasonable searches and seizures. (1) Additionally, Fourth Amendment jurisprudence has consistently highlighted the importance of an individual being enabled to retreat into his or her own "castle," safe from unreasonable governmental intrusions, as the home stands "at the very core" of the Fourth Amendment. (2) Although the home is afforded such noteworthy protections, law enforcement officers are permitted to approach a home and attempt to speak with the occupants therein through a customary, implied license. (3) While engaging in this implied license, law enforcement officers are not required to "shield their eyes" and can utilize information obtained through conversations with the occupants or through items within plain view. (4) Law enforcement officers, however, cannot obtain information that they otherwise could not acquire without physical intrusion by employing a device, not in general public use, upon a home. (5)
While investigating cases involving contraband, law enforcement officers utilize drug detection dogs all across the United States. (6) The United States Supreme Court has previously ruled on cases involving drug dogs, and has held that a drug dog's sniff is not a "search" under the Fourth Amendment when the target item is a lawfully stopped vehicle or seized luggage at an airport. (7) Labeling drug dogs as sui generis, (8) the Court has reasoned that drug dog sniffs are limited in manner and scope, less intrusive than an actual officer search, and reveal only the presence or absence of contraband. (9)
In 2013, in Florida v. Jar dines ("Jardines IV"), (10) the United States Supreme Court addressed the issue of whether law enforcement officers, acting without a warrant, can utilize a drug dog to sniff a homeowner's front door for contraband. (11) In a 5-4 decision, the majority held that the drug dog sniff violated the Fourth Amendment because the drug dog and the officers had physically trespassed on Jardines' front porch through an unlicensed, physical intrusion. (12) Although the majority properly analyzed the importance of the home's protections, its limited and archaic analysis provides little guidance for cases involving drug dogs that sniff homes from vantages points where they are lawfully present and not trespassing. (13) Three of the five justices, while signing onto the majority, concurred separately because, in their view, the drug dog sniff was not only a trespass, but also violated Jardines' reasonable expectation of privacy in his home. (14) Finding Jardines IV directly analogous and controlled by the Court's decision in Kyllo v. United States, (15) the concurring opinion correctly applied the reasonable expectation of privacy analysis first developed in Katz v. United States, (16) but fell short of satisfactorily explaining why a drug dog should be prohibited from disclosing information similar to that obtained by a thermal imager. (17)
Dissenting, Justice Alito would have upheld the drug dog sniff because, in his view, the officer and the drug dog were within their implied license to approach Jardines' home and did not exceed that license by gathering evidence through the sniff. (18) He further dissented because he believed individuals do not have a reasonable expectation of privacy in the odors that emanate from a home because those odors may be detected by members of the public. (19) The dissent, however, failed to adequately analyze Jardines IV in the context of the sniff being targeted at the home and viewed the drug dog sniff as permissible under the Fourth Amendment. (20) The dissent would allow for the government to intrude upon the home's historical protections based upon what the drug dog sniff revealed--contraband. (21) The dissent overlooked the Court's vital maxim that no search is ever validated by the product it produces. (22)
Providing clarification for this prevalent area of criminal law, this casenote first provides the factual and procedural history of Jardines IV. (23) Second, this casenote outlines the extensive history of the Fourth Amendment's protection of homes and the Court's prior decisions involving the government's use of drug dogs. (24) Third, this casenote analyzes the two theories of analysis, the traditional trespass method and the Katz reasonable expectation of privacy approach, regarding homes. (25) Fourth, this casenote offers "biotechnology" as an alternative to current classifications, which the Court should have developed to aid the legal communities' inevitable confrontations of drug dog sniffs that do not involve a trespass. (26) Finally, this casenote offers suggestions for practitioners and lower courts on how to approach drug dog cases post-Jardines IV. (27)
FACTS AND PROCEDURE OF FLORIDA V JARDINES
On November 3, 2006, Detective William Pedraja (28) of the Miami-Dade Police Department was alerted that marijuana was being grown in the home of Joelis Jardines by an unverified "crime stoppers" tip. (29) One month later, on the morning of December 5, 2006, the United States Drug Enforcement Administration ("DEA") sent a joint surveillance team, which included Detective Pedraja, to Jardines' home. (30) Initially, Detective Pedraja watched Jardines' home. (31) During that time, there was no activity around the home, no vehicles in the driveway, and Detective Pedraja could not see in the home because the window blinds were closed. (32) After watching Jardines' home for approximately fifteen minutes, Detective Douglas Bartelt, a trained canine handler, arrived on the scene with his drug dog, Franky. (33) The drug dog was trained to detect the odor of "marijuana, cocaine, heroin, hashish, methamphetamine, and ecstasy." (34)
Detective Pedraja, Detective Bartelt, and the drug dog then walked up the driveway and front walkway of Jardines' home towards the front door. (35) Detective Bartelt had the drug dog on a six-foot leash, "owning in part to the dog's 'wild' nature" (36) and tendency to pull Detective Bartelt "very dramatically." (37) The drug dog sensed an odor he was trained to detect and began "'bracketing,' 'back and forth, back and forth,"' exploring for the strongest source of the airborne odor. (38) Detective Pedraja stood back "so that he would not 'get knocked over'" and Detective Bartelt gave the drug dog "the full six feet of the leash." (39) After bracketing outside of Jardines' front door, (40) the drug dog sat, which is trained behavior to indicate the strongest point of the odor. (41) Detective Bartelt removed the drug dog from Jardines' front porch, informed Detective Pedraja of the positive alert, and then both Detective Bartelt and the drug dog left the scene. (42)
Detective Pedraja then approached and knocked on Jardines' front door, but received no response. (43) During his time at the front door, Detective Pedraja smelled "the scent of live marijuana" (44) and noted that the air conditioner to Jardines' home had been continuously running for approximately fifteen minutes. (45) Detective Pedraja left the scene and prepared and submitted an affidavit containing the information obtained in his investigation, including the drug dog's alert at Jardines' front door. (46) Federal DEA agents remained on scene and continued surveillance of Jardines' home (47) On the basis of Detective Pedraja's affidavit, a search warrant for Jardines' home was issued and executed later that same day. (48) Jardines attempted to flee from his home but was apprehended while a search was conducted (49) The search revealed marijuana plants and Jardines was subsequently arrested and charged with trafficking marijuana. (50)
LOWER COURT PROCEEDINGS
Jardines motioned to suppress the evidence seized on the ground that the drug dog sniff outside the front door of his home constituted an unreasonable search under the Fourth Amendment pursuant to State v. Rabb. (51) The trial court granted the motion to suppress, relying on Rabb, which held that use of a drug detection dog at the front door of a home constituted an unreasonable and therefore illegal search. (52) The trial court then determined that the remaining information, the unverified tip...