Jardines: Ruling signals a big win for civil liberties and a shorter leash for Florida law enforcement,

but will the United States Supreme Court let the decision stand? 608* Recently, in Jardines v. State, the Florida Supreme Court held that a warrantless dog sniff test conducted at the front door of a private residence constitutes a violation of the Fourth Amendment.1 While civil liberty advocates may have cause for celebration, the decision has undoubtedly frustrated local law enforcement. According to the United States Supreme Court dog sniff tests do not implicate Fourth Amendment privacy protections, because such searches are inherently limited to disclosing only the presence of contraband. 2 Nevertheless, the United States Supreme Court has yet to consider whether a warrantless canine sniff test at the front door of a private residence passes constitutional muster.3 The main issue then is whether the object of a warrantless dog sniff test affects its unique non-invasive status, and ultimately, whether the United States Supreme Court will affirm or reverse the decision. In order to explore this issue, this casenote begins with a brief overview of the factual background and procedural history of the instant case. Section II presents a concise summary of relevant case law relevant to Fourth Amendment searches and canine sniff tests as well as the sacrosanct status of the home in Anglo-American jurisprudence. Section III provides the reader with the diverging views discussed in the majority, concurring, and dissenting opinions of the instant case. This is followed by a critical analysis of these views in Section IV. Finally, Section V concludes with the reasons why the United States Supreme Court will probably affirm the decision reached in Jardines. II. Jardines v. State A. Factual and Procedural History On November 3, 2006 Detective Pedraja received an anonymous Crime Stoppers telephone tip which indicated that marijuana was being grown inside the home of Joelis Jardines.4 A little over a month later, at 7 A.M., Detective Pedraja along with other members of law enforcement and federal agents of the DEA stood outside the private residence of Jardines.5 After waiting fifteen minutes while observing the air conditioning unit of the Jardines residence was running continuously and the blinds were drawn, Detective Pedraja requested that Detective Bartlet lead his canine to the front porch of the residence where the canine alerted to the scent of marijuana.6 Detective Pedraja then confirmed that he could also smell the odor of marijuana at

Trevor, Burgess, J.D. Candidate May 2013, Florida Coastal School of Law. Jardines v. State, No. sCo8-2101, WL 1405080, at *1-30 (Fla. April 14, 2011). 2 Id. at 4 (quoting United States v. Place, 462 U.S. 706, 707(1983)). 3 Id. at 21. 4 Id. at 2. 5 Id. 6 Id.
1

Jardines: Ruling signals a big win for civil liberties and a shorter leash for Florida law enforcement, but will the United States Supreme Court let the decision stand? the front door.7 Detective Pedraja secured a warrant from the magistrate and conducted a full search of the premises which resulted in seizure of marijuana plants grown inside the house.8 Subsequently, Joelis Jardines was charged with trafficking cannabis and grand theft of electricity in the Circuit Court for Miami-Dade County.9 Jardines motioned for suppression of evidence that was seized as a result of the search warrant and the trial court judge granted the motion.10 The state then appealed the order suppressing the evidence and the Third District Court of Appeal reversed and remanded the case.11 The appellate court reversed and remanded on grounds that the use of a canine sniff test at the defendants house did not constitute a search and that even if the search was a fourth amendment search, the evidence was admissible under the inevitable discovery doctrine, and certified direct conflict with State v. Rabb.12 B. Fourth Amendment Searches and Canine Sniff Tests It is axiomatic that the Fourth Amendment protects an individual from unreasonable government intrusions, but when police conduct crosses over the threshold from being a casual observation to a Fourth Amendment search the issue becomes more complex. This issue was addressed in the landmark case, Katz. v. United States, where law enforcement agents used a listening device to eavesdrop on a private conversation that was held in a public telephone booth.13 From Katz, the Supreme Court fashioned a test to determine when a Fourth Amendment Search has occurred. The test consists of two components: 1) Whether an individual has a subjective expectation in privacy; 2) Whether society is willing to recognize that expectation as reasonable.14 The first component involves a subjective finding fact: whether the individual has an expectation of privacy; whereas the second component of the test provides objective criteria for evaluating whether the individuals expectation comports with reasonableness.15 In Kyllo v. United States, the Supreme Court retooled the Katz test to consider whether the use of a thermal imaging device used to detect variations in heat that dissipated from the house of Danny Kyllo was a Fourth Amendment search.16 The thermal imaging device was used to detect heat on the exterior of the house and garage which dissipated through the walls of a private residence from suspected high intensity lights used for the purpose of growing marijuana.17 On remand from the Ninth Circuit Court of Appeals, the United States District
7 8

Id. Id. 9 Id. at 25 (Dissenting, Polston, J.). 10 Id. at 2(Majority, Perry, J.). 11 Id. 12 Id. at 3. 13 Katz v. United States, 88 S.Ct. 507 (1967). 14 Jardines at 3 (citing Katz (Concurring, Harlan, J)). 15 Id. 16 Kyllo v. United States, 533 U.S. 27 (2001). 17 Id.

Jardines: Ruling signals a big win for civil liberties and a shorter leash for Florida law enforcement, but will the United States Supreme Court let the decision stand? Court for the District of Oregon found that the [t]he device used cannot penetrate walls or windows to reveal conversations or human activities; and [n]o intimate details of the home were observed.18 Nevertheless, the majority opinion, delivered by Justice Scalia, concluded that In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.19 Thus, the Kyllo Court held that a fourth amendment search occurs where the government uses technology not in the general public use to access intimate details of a private home that would not be accessible through any other means other than physical intrusion.20 Whereas the United States Supreme Court sought fit to limit the use of government technology in detecting illegal conduct, the High Court has consistently held that dog sniff tests are sui generis; unique because they are not as invasive as a physical search and because such searches only reveal the presence of contraband.21 Thus, according to the United States Supreme Court, warrantless dog sniff tests are not fourth Amendment searches. 22 C. The Sacrosanct Status of the home in Anglo-American Jurisprudence Performing such a warrantless dog sniff test at the front door of a private residence, however, raises additional privacy issues because a persons [h]ome is the most sacrosanct, and receives the greatest Fourth Amendment protection.23 Although the Supreme Court has said that the Fourth Amendment protections apply to people and not places, in order for the Fourth Amendment to afford any protection at all, the particular place where an individual is located is helpful in assessing whether the individual has a reasonable expectation of privacy in the object of the search and what level Fourth Amendment protection is available.24 Moreover, the sacrosanct status of the home has a well-settled history deeply rooted in the common law of England. For example, in its historic decision from the Semaynes Case in 1604, the English Court wrote the house of every one is to him as his castle and fortress, as well for his defence[sic] against injury and violence, as for his repose.25 Additionally, the now famous Attorney General of England also articulated that the English common law had [s]o particular

18 19

Kyllo v. U.S., 533 U.S. 27 (2001) (citing Supp. App. to Pet. For Cert. 39-40). Id. at 37. 20 Id. at 40. 21 Jardines at 8 (citing Illinois v. Caballas, 543 U.S. 405 (2005); Indianapolis v. Edmond, 531 U.S. 32, 40 (2000); United States v. Jacobsen, 466 U.S. 109, 104 (1984), United States v. Place, 462 U.S. 696, 707 (1983)). 22 Id. 23 Payton v. New York, 445 U.S. 573, 585 (1980). 24 See Jardines at 3 (citing Katz (concurring, Harlan, J.) (where the test for Fourth Amendment analysis is whether an individual has a constitutionally protected reasonable expectation of privacy.). 25 Jardines at 9 (quoting Semaynes Case, 5 Co. Rep. 91a, 91b).

Jardines: Ruling signals a big win for civil liberties and a shorter leash for Florida law enforcement, but will the United States Supreme Court let the decision stand? and tender a regard to the immunity of a mans house, that it stiles it his castle, and will never suffer it to be violated with impunity.26 Even in the modern era, the Supreme Court has recognized that there is a firm-line and a bright-line at the front door of the private residence.27 Nevertheless, as in the instant case, it is not always clear where that bright-line will fall. Constitutionally reasonable expectations in privacy with respect to barns, front porches, and privately fenced in yards may require somewhat different Fourth Amendment analysis.28 The Supreme Court has made several attempts to identify where that line should be drawn and one way of drawing that line is by analyzing whether the object of a search falls within the curtilage of the home. Curtilage is a term of art in the context of Fourth Amendment bars against unreasonable searches and is defined as The land or yard adjoining a house, usually within an enclosure.29 To the extent that an area of a private residence properly falls under the homes umbrella of Fourth Amendment protection, the United States Supreme Court has identified four factors: 1) the proximity of the area to the home; 2) whether the area is within an enclosure that surrounds the home; 3) the nature of the uses to which the area is put; and 4) steps taken by the resident to protect the area from observation by those passing by. 30 The critical issue, however, is whether the area in question is a host to the intimate activity associated with the sanctity of a mans home and the privacies of life.31 This history of common law and diverging theories in jurisprudence form the legal backdrop against which the Florida Supreme Court examined this issue. The Majority, Concurring, and Dissenting opinions all seem to recognize but nevertheless disagree sometimes quite vehemently on which divergent concepts of Fourth Amendment jurisprudence should be emphasized at the expense of the others.

26

Jardines at 9 (citing William Blackstone, Commentaries on the laws of England, 4 Commentaries 223 (17651769)). 27 Kyllo v. U.S., 533 U.S. 27, 40 (2001) (citing Payton at 590). 28 MISSING FOOTNOTE. 29 BLACKS LAW DICTIONARY 441 (9th ed. 2010). 30 U.S. v. Dunn, 480 U.S. 294 (1987). 31 Id. ((citing Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886))).

Jardines: Ruling signals a big win for civil liberties and a shorter leash for Florida law enforcement, but will the United States Supreme Court let the decision stand? III. Analysis A. Justice Perrys Majority Opinion: A dog sniff test at a private residence is intrusive and requires a previous evidentiary showing of probable cause. In Jardines, the Florida Supreme Court framed the issue: 1) whether a sniff test by a drug detection dog conducted at the front door of a private residence is a search under the Fourth Amendment; and if so, 2) whether the evidentiary showing of wrongdoing that the government must make prior to conducting such a search is probable cause or reasonable suspicion.32 Framing the issue in such a way is important to the outcome of the case for two important reasons. First, because every federal canine sniff case cited in the opinion requires only reasonable suspicion rather than probable cause.33 Second, since a dog sniff test is sui generis, requiring only reasonable suspicion, it seems reasonable to conclude that a dog sniff test at the front door of a private residence would only require reasonable suspicion as well. Afterall, the dog sniff test is non-invasive. According to this Court, however, the sniff test does become both invasive and offensive when performed at the front door of a private residence because such dog sniff tests not only reveal contraband but also constitute an intrusive procedure. 34 The grounds for finding the dog sniff test was intrusive were: 1) that it was a sophisticated undertaking; 2) involved the presence of multiple members of law enforcement and coordination of multiple law enforcement agencies; 3) which created a high likelihood of public opprobrium, shame, and embarrassment; 4) the preparation, execution, and aftermath of the sniff test lasted for hours.35 In regard to the likelihood of public opprobrium and embarrassment, the majority opinion cites United States v. Place; where the Supreme Court recognized that when the object to be searched is luggage in a public place, This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.36 Consequently, the majority opinion, distinguishes a dog sniff test in the context of a private residence by noticing that [t]here is no anonymity of the resident.37 The majority opinion also supports its conclusion with a policy argument, reasoning that if such dog sniff tests at a private residence are permitted to occur without some evidentiary showing, [t]here 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.38

32 33

Jardines at 1. Id. at 4-7. 34 Id. 35 Id. 36 Jardines at 4 (citing United States v. Place, 462 U.S. 696, 707 (1983)). 37 Id. at 1. 38 Id.

Jardines: Ruling signals a big win for civil liberties and a shorter leash for Florida law enforcement, but will the United States Supreme Court let the decision stand? It is of no small consequence that once the Court finds that a dog sniff test is a Fourth Amendment search absent a few exceptions a warrantless search is presumptively unconstitutional.39 The Majority Opinion addressed some arguments for extending the reasonable suspicion requirement to minimally intrusive searches. 40 Nevertheless, these arguments were readily dismissed, with the Court noting that the United States Supreme Court has never upheld such a search on reasonable suspicion merely because the search was minimally intrusive.41 Finally, in regards to the motion for suppression granted by the trial court, the Majority Opinion agreed with the trial court judge on the basis that the Crime Stoppers tip was anonymous, unverified, and the only evidence offered to corroborate the tip was the closed window blinds and a continuously running air conditioning unit.42 Consequently, the Court found that there was insufficient necessary to find a showing of probable cause.43 B. The Concurring Opinion: The Home is Sacrosanct and the Canine was inadequately trained.
In his specially concurring opinion, Justice Lewis emphasized above all else the sacrosanct status of the private residence, but he also addressed the insufficiency of an anonymous tip as grounds for reasonable suspicion, and the inadequacy of documentation in the training record of the canine that performed the sniff test in the instant case.44 Due to the elevated status of the home, Justice Lewis finds that the air and content of the air that escapes from within the private residence falls within the protected zone of privacy.45 Moreover, the aromas created from cooking on a stove as well as the putrid odor from a ruptured sewage line are intimate details of a home, and as such are protected from government intrusion.46 In support of his contention that an anonymous tip cannot be grounds for reasonable suspicion, Justice Lewis cites an earlier Florida State Supreme Court case where [t]he Court held that an anonymous tip cannot be a stand-alone basis for reasonable suspicion, a decision which was later upheld by the United States Supreme Court.47 As far as the sufficiency of other evidence to support reasonable suspicion, Justice Lewis lambasted Detective Pedrajas observation of the continuously running air conditioner as [a] ridiculous observation in the heat of Florida.48

39

See Id. at 14 (citing Kyllo at 31; Payton v. New York, 445 U.S. 573, 586 (It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.) (internal quotation marks omitted)). 40 Jardines at 14. 41 Id. at 16. 42 Jardines at 17. 43 Id. 44 Id. at 19. 45 Id. at 21. 46 Id. at 20. 47 Id (citing J.L. v. State, 727 So.2d 204 (Fla. 1998); Florida v. J.L. 529 U.S. 266, 270 (2000). 48 Id. at 20.

Jardines: Ruling signals a big win for civil liberties and a shorter leash for Florida law enforcement, but will the United States Supreme Court let the decision stand? C. The Dissenting Opinion: An Individual has no legitimate expectation for Privacy in Contraband. In a somewhat more reserved Dissenting Opinion, Justice Polston identified a flawed assumption made by the Majority and Concurring Opinions: that Jardines had a reasonable expectation that the smell of marijuana coming from his residence would remain private.49 Justice Polston denounces this assumption on multiple grounds. First, there can be no reasonable expectation in privacy because the [U]nited States Supreme Court has ruled that there are no legitimate privacy interests in contraband under the Fourth Amendment.50 Second, according to Justice Polston it was an error to find that the federal dog sniff cases were inapplicable to the instant case.51 There is no language in Place, Jacobsen, Edmond, or Caballes indicating that the status of a dog sniff test as sui generis changes when performed in the context of a home.52 To the contrary, excluding precedent already decided by the United States Supreme Court cases which involved dog sniff tests and extending the Kyllo Rule which only involves the governments use of a heat imaging device eviscerates stare decisis in federal dog sniff case law.53 This position relies heavily upon language from Caballas which distinguishes a dog sniff test from a thermal imaging device on the basis that such a device is capable of detecting not only contraband but lawful activity as well, such as the intimate details of the home. 54 A dog sniff test, on the other hand, reveals only the presence of contraband.55 Justice Polston also takes issue with the public opprobrium, humiliation, and embarrassment, identified by the majority opinion, arguing that the presence of multiple law enforcement officers or multiple law enforcement agencies has never been a dispositive issue in the context of any other dog sniff test case.56 Finally, Justice Polston also criticizes the majority and concurring opinions for asserting that the search lasted for hours, when there was no evidence on the record to support the assertion.57 IV. Commentary The dissent takes a very broad view of United States Supreme Court precedent involving dog sniff cases, yet adopts a very narrow view of the rule from Kyllo.58 It appears that Justice Polston is guilty of the same weird logic he says was used by the Majority and Concurring
49 50

Id. at 30. Jardines at 24 (citing Illinois v. Caballes, 543 U.S. 405, 408 (2005)). 51 Jardines at 29 (Dissent, Polston, J.) 52 Id. 53 See Id. 54 Id. at 28 (quoting Caballes, quoting from Kyllo, intimate details in a home, such as at what hour each night the lady of the house takes her daily sauna and bath. [internal quotations omitted]). 55 Id at 28 (quoting Caballes). 56 Id at 29. 57 Id. 58 Id. at 29

Jardines: Ruling signals a big win for civil liberties and a shorter leash for Florida law enforcement, but will the United States Supreme Court let the decision stand? justices. That weird logic being that all the precedent involving dog sniff tests should apply to the instant case which involves a dog sniff test, but the rule from Kyllo which is the only case that involves the search of a home should not apply to the instant case which involves a dog sniff test of a home.59 Nevertheless, Justice Polston is perceptive in arguing that Kyllo should not apply because that would mean that even a plain rug lying on the floor in a home is an intimate detail because the entire area is protected from prying government eyes.60 In so far as Justice Lewis emphasizes the elevated status of the home, his concurring opinion is probably correct. Where the curtilage of a home is concerned, the critical issue is whether the area or object of the sniff test is a host to the intimate activity associated with the sanctity of a mans home and the privacies of life.61 Consequently, whatever aromas, scents, and even putrid odors that might escape from the cracks and crevices of a house are probably constitutionally protected. As Justice Lewis articulated, the air as well as the content of the air that
escapes from within the private residence falls within this protected zone of privacy.62

When Justice Lewis criticized Detective Pedrajas observation of continuous air conditioning, calling it ridiculous, he may have overstated his case. In the Detectives defense,
the search occurred at 7 a.m. on December 06, 2006, meaning the Detectives observation and the relative Florida heat may have been considerably less than ridiculous although perhaps not indicative of criminal culpability.

V. Conclusion There are two mutually exclusive and competing legal concepts which appear to be irreconcilable in the instant case. First, there is the dog sniff test which the United States Supreme Court has consistently held to be sui generis and as such, does not constitute a Fourth Amendment search.63 To the extent that a dog sniff test only reveals the presence of contraband, the view expressed by the Dissent is probably correct: an individual cannot have a reasonable expectation for privacy in contraband.64 Nevertheless, there is also the long-standing and wellsettled classification of the home as sacrosanct.65 With respect to this sacrosanct status of the home, however, Justice Lewis takes a very myopic view of the sui generis status of the dog sniff test, the knock and talk rule, and the fact that a person does not have an expectation of privacy

59 60

See Id. Kyllo at 37. 61 Id. (citing Oliver v. United States, 466 U.S. 170, 180 (1984), quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). 62 Id. at 21. 63 Jardines at 8 (citing Illinois v. Caballes, 543 U.S. 405 (2005); Indianapolis v. Edmond, 531 U.S. 32, 40 (2000); United States v. Jacobsen, 466 U.S. 109, 104 (1984); United States v. Place, 462 U.S. 696, 707 (1983)). 64 Jardines at 24 (citing Illinois v. Caballes, 543 U.S. 405, 408 (2005)). 65 Payton v. New York, 445 U.S. 573, 585 (1980).

Jardines: Ruling signals a big win for civil liberties and a shorter leash for Florida law enforcement, but will the United States Supreme Court let the decision stand? on a front porch.66 This view is myopic because it fails to consider the most important factor in assessing and determining Fourth Amendment protections; what Justice Scalia has called a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable.67 In other words, Fourth Amendment protections turn on the reasonableness of the search. Whether a dog sniff test is sui generis or not, given the elevated status of the home in Anglo-American jurisprudence, there must at the very least be a minimal expectation of privacy because the home is sacrosanct. Consequently, the appropriate test should be to analyze whether it is reasonable, under the facts of the instant case, for law enforcement detectives, members, and agencies to show up at the front door of a private residence without probable cause. Reasonableness as the touchstone of Fourth Amendment protection illuminates the analysis because, as Justice Perry articulated, such conduct created a high likelihood of public opprobrium, shame, and embarrassment.68 Moreover, there is nothing to prevent agents from applying these dog sniff tests in an arbitrary, discriminatory, or harassing manner.69 Thus, it is not reasonable for law enforcement to conduct a dog sniff test at the front door of a private residence without probable cause. The decision reached by the Florida State Supreme Court will probably stand even though it appears there may have been a more direct approach available.

66

Jardines at 25, (quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964); State v. Morsman, 394 So.2d 408, 409 (Fla. 1981)). 67 Kyllo v. U.S., 533 U.S. 27, 34 (2001). 68 Id. 69 See Id. at 13, (citing Camara v. City of San Francisco, 387 U.S. 532, 528 (1967)).