A recent United States Supreme Court ruling, Florida v. Jardines, has decided that an officer conducts a Fourth Amendment search 
when he brings a drug dog onto the porch of a house to sniff the front door. In this case, a Miami officer received a tip that marijuana was being grown in a residence. The officers went to the front door of the house, and the dog acted as though he detected drugs in the house. Thereafter, the officers left, allegedly obtaining probable cause for a search warrant, and when they entered the residence, they found numerous marijuana plants. The defendant was then charged with drug trafficking.
The defendant argued that the use of the dog was an unreasonable search in violation of the Fourth Amendment of the U.S. Constitution. The trial court agreed with this, the appellate courts were split, and Jardines found himself in front of the U.S. Supreme Court. Justice Scalia wrote the majority opinion in favor of the defendant. His reasoning was based on the “physical intrusion theory” that he advanced in United States v. Jones. He stated that the officers entered the curtilage (area so intimately connected with the home as to have extra privacy provisions) of the defendants home with the purpose of gaining information.
Scalia rejected the argument that there was an “implicit license” for the officers to approach the home with the dog. He stated that custom allows a visitor to approach the home by the front path, knock promptly, and then leave. However, this does not allow a visitor to engage in investigative activity such as bringing a trained dog to sniff the porch. Therefore, the scope of this type of search is limited.
Justice Scalia distinguished this from Illinois v. Caballes, where it was held that the use of a drug dog during a traffic stop does not violate the motorist’s reasonable expectation of privacy because the dog cannot impinge on the reasonable expectation of privacy, it may constitute a physical intrusion.
Justice Kagan concurred, arguing that the case could also be decided for the defendant under the reasonable expectation of privacy theory, comparing the use of a drug dog to a situation in which “a stranger comes to the front door of your home carrying super-high-powered binoculars” and uses them to peer into the recesses of your dwelling, thereby exposing what is reasonably expected to be private.
However, Justice Alito dissented reasoning that visitors, welcome or not, have an implied “license to use a walkway to approach the front door of a house and to remain there for a brief time,” regardless of their purpose. He also rejected Kagan’s reasonable expectation of privacy theory.
Therefore, the justices that combined to form the ruling for this case shows something very interesting. This illustrates how split the justices can be when making a ruling on a Fourth Amendment issue. If you or a loved one has been involved in a search that you believe is arguable whether there was probable cause, call the law offices of Reeves, Aiken & Hightower, LLP. For a consultation, visit us at our Baxter Village office located in Fort Mill, South Carolina, or call us at 803-548-4444, or toll-free at 877-374-5999.