The Lawletter Vol 35 No 8, May 27, 2011
Mark Rieber, Senior Attorney, National Legal Research Group
The Florida Supreme Court, resolving a conflict between two lower appellate court decisions, recently held that "a sniff test" by a drug-detection dog conducted at the front door of a private residence constitutes a "search" within the meaning of the Fourth Amendment and must be supported by probable cause rather than the lesser standard of reasonable suspicion. Jardines v. State, No. SC08-2101, 2011 WL 1405080 (Fla. Apr. 14, 2011). The court explained that the dog sniff test conducted in the case before it was a "sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement agencies" and that it took place in plain view. Id. at *1.
[I]f government agents can conduct a dog "sniff test" at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct.
Id. Accordingly, the court concluded that a sniff test, such as the one conducted in the case before it, "is a substantial government intrusion into the sanctity of the home and constitutes a 'search' within the meaning of the Fourth Amendment." Id. The court distinguished federal dog sniff cases and held that they were inapplicable to the home. Id. at *8-9. Furthermore, after analyzing federal precedent, the court concluded that probable cause, not reasonable suspicion, is the proper evidentiary showing of wrongdoing that the Government must make under the Fourth Amendment prior to conducting a dog sniff test at a private residence. Id. at *17.
