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JARDINES: AN OPINION THAT IS OUT IN LEFT FIELD INTRODUCTION In Jardines v. State,1 the Supreme Court of Florida was presented with two significant issues regarding the Fourth Amendment to the United States Constitution.2 The first issue was 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.3 The second issue, which was dependent on an affirmative answer to the first issue, was whether the evidentiary showing of wrongdoing that the government must make prior to conducting such a search is probable cause or reasonable suspicion. 4 The court held (i) that the warrantless sniff test that was conducted at the front door of the residence in the present case was an unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment5 and (ii) that probable cause is the evidentiary showing of wrongdoing that the government must make under the Fourth Amendment prior to conducting a sniff test at a private residence.6 The courts holding is antithetical to both federal sniff test precedent7 and the sniff test jurisprudence of virtually every other

1 2

73 So. 3d 34 (Fla. 2011), cert granted, 132 S. Ct. 995 (U.S. Jan. 6, 2012) (No. 11-564). Id. at 35-36. 3 Id. 4 Id. 5 Id. at 55-56. 6 Id. at 54. 7 See Illinois v. Caballes, 543 U.S. 405, 408-10 (2005) (holding that a sniff test executed during a lawful traffic stop does not implicate the Fourth Amendment because all it reveals is the presence or absence of contraband, in which there is no legitimate privacy interest); United States v. Place, 462 U.S. 696 (1983) (holding that a sniff test does not implicate the Fourth Amendment because it only discloses the presence or absence of contraband) ; Timothy C. MacDonnell, Note, Orwellian Ramifications: The Contraband Exception to the Fourth Amendment, 41 U. MEM. L. REV. 299, 311-13 (2010) (stating that City of Indianapolis v. Edmond, 532 U.S. 32 (2000), held that a sniff test applied to a vehicle is not a search under the Fourth Amendment, and that United States v. Jacobsen, 466 U.S. 109 (1984), held that a chemical test that was utilized by law enforcement that could only reveal whether the substance being tested was cocaine is not a search under the Fourth Amendment.)

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American jurisdiction.8 Rather, the courts holding is in accordance with the holding of United States v. Thomas,9 an opinion that a number of other courts have criticized . . . as inconsistent with Place and its progeny10 and that seems to stand alone in its pronouncement that a canine sniff may constitute an unreasonable search.11 This casenote will expound why, as the title proclaims, the Jardines courts opinion is out in left field, so to speak. More specifically, this casenote will expound why a sniff test at the front door of a suspected grow house by a trained narcotics dog is not a Fourth Amendment search. I. BACKGROUND The contention that exists as to whether a sniff test that is conducted at the door of a private residence is a search within the meaning of the Fourth Amendment to the United States Constitution12 stems from Katz v. United States.13 In this milestone case, the Court rescinded the trespass doctrine,14 for, according to the Court, the Fourth Amendment protects people, not

See, e.g., Hoop v. State, 909 N.E.2d 463, 468 (Ind. App. 2009) (holding that a sniff test does not implicate the Fourth Amendment merely because it is conducted at the door of ones residence); Fitzgerald v. State, 384 Md. 484, 494 (Md. 2004) (holding that the location of a sniff test is immaterial as to whether a Fourth Amendment search has occurred); People v. Dunn, 77 N.Y.2d 19, 23 (1990) (holding that the canine sniff conducted outside [defendants] apartment . . . did not constitute a search within the meaning of the Fourth Amendment). 9 757 F.2d 1359 (2d Cir. 1985) (plurality opinion). The Court held in Thomas that the location of a sniff test does matter and that a sniff test applied to a private residence implicates the Fourth Amendment. Id. at 1366-67. 10 Fitzgerald, 384 Md. at 502. 11 Hoop, 909 N.E.2d at 467 (quoting U.S. v. Reed, 141 F.3d 644, 649-50 (6th Cir. 1998)). 12 The Fourth Amendment to the United States Constitution states the following: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV. 13 389 U.S. 347 (1967). 14 Under the trespass doctrine, the Court generally evaluated potential violations of the Fourth Amendment according to a property theory of trespass. MacDonnell, supra note 7, at 304. Consequentially, if officers had not committed a physical trespass into persons, houses, papers, or effects, their actions were not considered a search and thus did not violate the Fourth Amendment. April A. Otterberg, Note, GPS Tracking Technology: The Case for

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places.15 The new test for determining whether a governmental act constitutes a search under the Fourth Amendment, which the majority explained inarticulately, was clarified by Justice Harlan in his concurring opinion: [T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.16 The second tier of this test paved the way for creation of the contraband exception.17 A. The Impetus and Burgeoning of the Contraband Exception The impetus for the contraband exception was the Courts opinion in United States v. Place.18 In Place, the Court was confronted with the issue of whether the Fourth Amendment prohibits law enforcement authorities from temporarily detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics.19 In dicta,20 Court, applying the principles set forth in Terry and its progeny,21 responded to this question negatively.22 According to the Court, the defendants Fourth Amendment interests were outweighed by governmental interests in determining whether his baggage contained drugs.23 First, a canine sniff by a well-trained narcotics detection dog

Revisiting Knotts and Shifting the Supreme Courts Theory of the Public Space Under the Fourth Amendment, 46 B.C. L. REV. 661, 672 (2005). 15 Katz, 389 U.S. at 351. 16 Id. at 361 (Harlan, J., concurring). 17 MacDonnell, supra note 7, at 308. 18 462 U.S. 696 (1983). 19 Id. at 697-98. 20 The Court did not need to address the issue it was confronted with, as it was compelled to preclude the findings that the Drug Enforcement Agency (DEA) made in defendants baggage because the length of the detention of defendants baggage was excessivethree days. Id. at 709. 21 Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, an exception to the probable-cause requirement for limited seizures of the person exists when the nature and quality of the intrusion on the individuals Fourth Amendment interests is outweighed by governmental interests alleged to justify the intrusion. Place, 462 U.S. at 703. 22 Id. at 698. 23 Id. at 706.

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lacks intrusiveness, for the sniff discloses only the presence or absence of narcotics, a contraband item. . . . This limited disclosure . . . ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods."24 Continued the Court, because of the limited manner in which the information is obtained and in the content of the information revealed by the procedure, the canine sniff is sui generis and, hence, does not constitute a search within the meaning of the Fourth Amendment.25 Second, the Court held that [t]he public has a compelling interest in those who would traffic deadly drugs for personal profit.26 The contraband exception burgeoned in United States v. Jacobsen27 and City of Indianapolis v. Edmond.28 In Jacobsen, employees of Federal Express examined a damaged package sent to [defendant] through their service and discovered a tube containing four bags of white powder and, consequently, notified the DEA and put the bags and tube back in the damaged package.29 In response, DEA agents arrived at the Federal Express office, opened the package, tube, and bags, and subjected the powder to a test that could only reveal whether the white powder was or was not cocaine.30 Upon being subjected to the test, [t]he powder tested positive for cocaine, and, as a result, [defendant] was eventually convicted of possession with the intent to distribute cocaine.31 After being confronted with whether the DEA agents acted in violation of the Fourth Amendment, the Court ruled that both the examination of the packages

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Id. at 707. Id. 26 Id. at 703 (quoting United States v. Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J., concurring in part and in the judgment) (plurality opinion) (alteration in original). 27 466 U.S. 109 (1984). 28 531 U.S. 32 (2000). 29 MacDonnell, supra note 7, at 310. 30 Id. 31 Id. at 310-11.

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contents and the field testing were permissible under the Fourth Amendment.32 The Courts rationale was that (i) the chemical test utilized could only reveal whether the substance being tested was or was not cocaine and (ii) that [a] chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy.33 In Edmond, the Court reinforced precedent on the contraband exception,34 albeit in dicta.35 Regarding the issue of whether permitting trained narcotics dogs to sniff outside the vehicles [was] a search under the Fourth Amendment, the Court stated that it was not.36 It seemed to be firmly established after Edmond, then, that if the government could fashion a test sufficiently discerning (i.e., it must only reveal the presence or absence of contraband) and sufficiently nonintrusive . . . it could use that test anywhereon mail, luggage, automobiles, or even in an individuals home.37 B. Kyllo: A Source of Confusion Regarding the Contraband Exception Kyllo v. United States38 brought about a state of confusion regarding the contraband exception, as it is capable of being construed as abolish[ing] any argument that the contraband

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Id. at 311. Id. (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984) (alteration in original)). In regard to the seizure of the powder for testing, the Court concluded that the use and destruction of the powder was a seizure under the Fourth Amendment but that, under the circumstances, the seizure was reasonable. MacDonnell, supra note 7, at 311-12. 34 Id. at 313. 35 Since the case was reversed because of the unlawful stop, the Court ruled on the permissibility of the canine sniff when it was entirely unnecessary to do so. Id. This case was a class action civil case brought in response to the Indianapolis City Police Departments drug interdiction roadblock program. Id. at 312. The police set up check points, where they stopped and inspected every fourth vehicle by inspecting drivers licenses and vehicle registration papers, analyzed whether drivers stopped were impaired, peered through car windows, and walked trained narcotics dogs around stopped vehicles. Id. at 312-13. 36 Id. at 313. 37 Id. at 313. 38 533 U.S. 27 (2001).

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exception could be utilized in an individuals home.39 The Court held that [w]here, as here, the Government uses a device that is not in general public use, to explore details of a home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumably unreasonable without a warrant.40 In reaching its holding, the Court emphasized its concern about the fact that, under the test articulated by Justice Harlan in Katz, exponential advances in technology are diminishing individuals Fourth Amendment rights: It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. . . . The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.41 To allay this concern, the Court set forth a firm line to protect at least some degree of individuals Fourth Amendment rights from the maw of Katz: the interior of homes from senseenhancing technology not in general public use.42 According to the Court, this bright line assures, albeit only in regard to individuals homes, preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.43 Another major concern for the Court that militated in support of the Courts holding is the fact that [l]imiting the prohibition of thermal imaging to intimate details would . . . be impracticable in application.44 First, the Court stressed that it would be impracticable to develop a

39

MacDonnell, supra note 13, at 313. In Kyllo, an agent of the United States Department of the Interior came to suspect that marijuana was being grown in the home of defendant and, as a result, he and another agent used an Agema Thermovision 210 thermal imager to scan [defendants home] from the vehicle of the agent across the street from the front of the house and also from the street in back of the house. Kyllo, 533 U.S. 29-30. The scan that was performed showed that the roof over the garage and a side wall of [defendants] home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes, a fact that was relied on by the judge who issued a warrant authorizing the search of defendants home that led to the discovery of more than 100 marijuana plants. Id. at 30. Proceeding this search and discovery, defendant moved to suppress the evidence seized from his home. Id. 40 Id. at 40. 41 Id. at 34. 42 Id. 43 Id. 44 Id. at 38.

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jurisprudence specifying which home activities are intimate and which are not.45 Second, the Court emphasized that even when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks up intimate detailsand thus would be unable to know in advance whether it is constitutional.46 C. Caballes: The Pendulum Has Swung Back the Other Way Just as Kyllo may be interpreted as confounding precedent regarding the contraband exception, Illinois v. Caballes47 may be interpreted as reinstating prior precedent. The Court was
confronted with the issue of [w]hether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.48 The Court responded to this issue in the negative, holding that [a] dog sniff conducted during a concededly

lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.49 According to the Court, a canine sniff by a well-trained narcotics-detection dog [is] sui generis because it discloses only the presence or absence of narcotics, a contraband item,50 and governmental action that merely reveals the possession of contraband comprises no legitimate privacy interest.51 The Court further stated that its holding is in the case is consistent with its holding in Kyllo: Critical to that decision was the fact that the device was capable of detecting lawful

45 46

Id. at 38-39. Id. 47 543 U.S. 405 (2005). The facts of Caballes are that, while pulled over for speeding on an interstate highway, a police officer walked a drug-detection dog around defendants car, and the dog detected marijuana, which lead to the arrest of defendant. Id. at 406. 48 Id. at 407. 49 Id. at 410. 50 Id. at 409 (quoting United States v. Place, 462 U.S. 696, 707 (1983)). 51 Id. (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984)).

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activityin that case, intimate details in a home, such as at what hour each night the lady of the house takes her daily sauna and bath.52 D. How the States, Excepting Florida, Have Interpreted the Fourth Amendments Contraband Exception Pertaining to Private Residences 1. New York New Yorks high court, the Court of Appeals of New York, was faced with the task of determining whether a sniff test executed at the front door of a private residence violates the Fourth Amendment in People v. Dunn.53 The court disagreed with the defendants argument that his rights under the Fourth Amendment were violated.54 This holding, stated the court, was compelled by the rationale used by the Supreme Court in Place and Jacobsen: Since the canine sniff conducted outside [defendants] apartment could reveal only the presence or absence of illicit drugs, it did not constitute a search within the meaning of the Fourth Amendment.55 Additionally, the court stated that Thomas is unpersuasive: The distinction it relies upon, namely, the heightened expectation of privacy that a person has in his residence, is irrelevant under Places rationale.56 2. Maryland

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Caballes, 543 U.S. at 409-10 (quoting Kyllo v. United States, 533 U.S. 27, 38 (2001)). 77 N.Y.2d 19 (1990). In Dunn, the police, who were told defendant had contraband in his apartment, arranged to have a trained narcotics dog brought to the common hallway outside his apartment door so that a canine sniff could be conducted. Id. at 20. After the dog signified the presence of contraband inside the apartment, the police obtained a warrant to search the apartment and, ultimately, [a] nine-count indictment was subsequently returned against defendant charging him with, among other things, various drug-related offenses. Id. at 21-22. 54 Id. at 23. 55 Id. 56 Id.

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In Fitzgerald v. State,57 Marylands high court, the Court of Appeals of Maryland, was confronted with the issue of whether a canine sniff of an apartment door is a search under the Fourth Amendment of the United States Constitution.58 The court responded in the negative,59 as it read Place as applicable to dog sniffs in general, independent of the object searched, because of the sniffs narrow scope.60 Kyllo, the court stated, is distinguishable: Kyllo is an opinion about the need to limit advancing technology.61 Additionally, the court held that Thomas is contrary to the Supreme Courts precedent.62 3. Indiana The Court of Appeals of Indiana, like the Court of Appeals of New York and the Court of Appeals of Maryland, was also confronted with the task of determining whether the contraband exception applies to canine sniffs that are executed at the front doors of private residences.63 Like the other two courts, the Court of Appeals of Indiana held that the police may have a dog sniff [a] residence without implicating the Fourth Amendment.64 In reaching this holding, the court disagreed with defendant that Thomas and Kyllo compelled a holding in his favor.65 Regarding Thomas, the court concurred with the United States Court of Appeals for the Sixth Circuits statement that Thomas is antithetical to Places holding, that is, the court concurred
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384 Md. 484 (2005). Id. at 487. 59 Id. 60 Id. at 495. 61 Id. at 499 (quoting Kylo v. United States, 533 U.S. 27, 33-34 (2001)). 62 Id. at 502. 63 Hoop v. State, 909 N.E.2d 463, 466 (2009). Provided with (i) information from a confidential credible and reliable informant that marijuana was being grown at defendants residence and (ii) public utility records which showed that since [defendant] moved into the residence that the power used was higher than the previous occupant, the police conducted a canine sniff at defendants front door, which signified the presence of contraband. Id. at 464-65. Consequently, [a] search warrant was issued, which led the police to find 140 marijuana plants, several bags of marijuana, a digital scale with marijuana residue, cash, and firearms. Id. at 465. Hoop then filed a motion to quash warrant and motion to suppress. Id. 64 Id. at 468. 65 Id. at 467-68.

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with the statement that a person has no legitimate privacy interest in the possession of contraband, meaning that the location of the contraband is irrelevant.66 Regarding Kyllo, the court concurred with the United States Court of Appeals for the Seventh Circuits statement that Kyllo was premised on the fact that the imaging device was capable of detecting not only illegal activity inside the home, but also lawful activity.67 II. THE DECISION The case originated upon the police conducting a warrantless sniff test by a drug detection dog at [defendants] home, resulting in the finding of live marijuana plants inside.68 The resulting issue that appeared before the Supreme Court of Florida was twofold: (i) 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, (ii) whether the evidentiary showing of wrongdoing that the government must make prior to conducting such a search is probable cause or reasonable suspicion.69 Regarding the former, the issue which is the focus of this casenote, the court quashed the district courts holding: Given the special status accorded a citizens home in Anglo-American jurisprudence, we hold that the warrantless sniff test that was conducted at the front door of the
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Id. at 467 (quoting United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998)). Hoop, 909 N.E.2d at 468 (quoting United States v. Brock, 417 F.3d 692, 696 (7th Cir. 2005)). 68 Jardines v. State, 73 So. 3d 34, 35 (Fla. 2011), cert granted, 132 S. Ct. 995 (U.S. Jan. 6, 2012) (No. 11-564). On November 3, 2006, Detective Pedraja of the Miami-Dade Police Department received an unverified crime stoppers tip that the home of [defendant] was being used to grow marijuana. Id. at 37. On December 6, 2006, the warrantless search took place, and the findings that led to defendants arrest occurred. Id. at 37-38. Following this finding, defendant filed a motion to suppress the evidence, arguing that that the warrantless sniff test violated his right against unreasonable searches under the Fourth Amendment. Id. The trial court granted defendants motion, the State appealed, the district court reversed, and defendant then sought review in the Supreme Court of Florida. Id. 69 Id. at 35-36. Article I, section 12 of the Florida Constitution, which provides Florida citizens the right to be free from unreasonable searches and seizures, also states section 12 shall be construed in conformity with the 4 th Amendment of the United States Constitution, as interpreted by the United States Supreme Court. MacDonnell, supra note 13, at 341-42 (quoting FLA. CONST. art. 1, 12). By contrast, some states constitutions are construed separately from the United States Constitution and offer greater protection than it does regarding the Fourth Amendment. See State v. Carter, 697 N.W.2d 199, 210 (2005) (stating that the Minnesota Constitution provides individuals with a greater expectation of privacy than does the United States Constitution); State v. Pellicci, 133 N.H. 523, 532 (1990) (stating that the reasonable-expectation-of-privacy analysis, while relevant to interpreting the United States Constitution, does not apply to New Hampshires constitution).

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residence in the present case was an unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment.70 The courts rationale is that the analysis that the Supreme Court used for the dog sniff cases that came before it is inapplicable to a sniff test conducted at a private home.71 First, stated the court, in each sniff test case with which it was presented, the United States Supreme Court was careful to tie its ruling to the particular facts of the case.72 Second, the court stated that all the sniff and field tests in the cases which the Supreme Court addressed were conducted in a minimally intrusive manner upon objectsluggage at an airport in Place, vehicles on the roadside in Edmond and Caballes, and a package in transit in Jacobsenthat warrant no special protection under the Fourth Amendment.73 According to the court, [a]ll the tests were conducted in an impersonal manner that subjected the defendants to no untoward level of public opprobrium, humiliation or embarrassment.74 In contrast, the court stated, the sniff test executed at defendants private residences was an intrusive procedure,75 as (i) it was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement departments76 and (ii) it was a public spectacle unfolding in

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Jardines, 73 So. 3d at 55-56. Id. at 44. 72 Id. Specifically, the court argued the following: in Place, the Supreme Court tied its holding to allowing a trained canine to sniff a persons luggage in a public place; in Edmond, the Court tied its holding to allowing a trained canine to sniff the exterior of a car at a checkpoint; in Caballes, the Court tied its holding to allowing a trained canine to sniff the exterior of a car when it was lawfully seized for a traffic violation; and that, in Jacobsen, the Court tied its holding to allowing the police to conduct a test on the content inside a package that Federal Express suspected was contraband that would only reveal whether it was contraband. Id. at 45. 73 Id. 74 Id. 75 Id. at 48. 76 Id.

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a residential neighborhood, so it caused public opprobrium, humiliation and embarrassment for [defendant].77 Third, the court stated that, under the particular circumstances of each of the above cases, the tests were not susceptible to being employed in a discriminatory or arbitrary manner.78 Continued the court, the luggage in Place had been seized based on a reasonable suspicion; the vehicle in Edmond had been seized in a dragnet-style stop; the vehicle in Caballes had been seized pursuant to a lawful traffic stop; and the contents of the package in Jacobsen had been seized after the package had been damaged in transit by a private carrier.79 In contrast, stated the court, a private residence is not susceptible to being seized beforehand based on objective criteria.80 Continued the court, if the police are able to conduct a dog sniff test at a private residence without any prior evidentiary showing of wrongdoing, there is simply 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.81 Fourth, the court stated that there is a heightened expectation of privacy within ones residence.82 According to the court, [t]he sanctity of the citizens home is a basic tenant of Anglo-American jurisprudence.83 III. ANALYSIS

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Id. at 49. Id. at 45. 79 Id. 80 Id. at 49. 81 Id. 82 Id. 83 Id. at 45.

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The Jardines courts opinion regarding the ambit of the contraband exception is misguided. First, it erroneously interprets the Courts precedents regarding the contraband exception too narrowly. Second, its attempt to distinguish sniff tests executed at private residences with those executed elsewhere is unpersuasive. Regarding the former, contraband exception precedent does indicate that the same analysis applies to a sniff test executed at a private residence. In Place, Jacobsen, Edmond, and Caballes, the location of the sniff test at issue was not a part of the analysis; rather, the holding in each of these cases was predicated on the fact that a sniff test only reveals the presence or absence of contraband, in which there is no legitimate privacy interest under Katz.84 Indeed, when the Court distinguished Kyllo in Caballes, the Court did not distinguish Kyllo because of the fact that the sniff test at issue in that case occurred at a private residence, but, rather, distinguished it from the facts at issue in Caballes because the device at issue in Kyllo was capable of detecting lawful activity.85 Contrary to what the court stated in Jardines,86 then, the Supreme Court has not tied its holdings in these cases to the particular facts of those cases. In addition to the Supreme Courts Fourth Amendment contraband exception precedent, Fourth Amendment contraband exception jurisprudence from the states of New York, Maryland, and

84

See Illinois v. Caballes, 543 U.S. 405, 408-10 (2005) (holding that a sniff test executed during a lawful traffic stop does not implicate the Fourth Amendment because all it reveals is the presence or absence of contraband, in which there is no legitimate privacy interest); United States v. Place, 462 U.S. 696 (1983) (holding that a sniff test does not implicate the Fourth Amendment because it only discloses the presence or absence of contraband); MacDonnell, supra note 7 (stating that City of Indianapolis v. Edmond, 532 U.S. 32 (2000), held that a sniff test applied to a vehicle is not a search under the Fourth Amendment, and that United States v. Jacobsen, 466 U.S. 109 (1984), held that a chemical test that was utilized by law enforcement that could only reveal whether the substance being tested was cocaine is not a search under the Fourth Amendment.) 85 Caballes, 543 U.S. at 409-10. 86 Jardines, 77 So. 3d at 44-45 (stating that the United States Supreme Court was careful to tie its ruling to the particular facts of the case).

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Indiana, all of which dealt explicitly with the execution of a sniff test at a private residence, indicates that private residences are included within the contraband exception.87 Regarding the latter, the Jardines court is correct in stating that it would be disastrous if police officers were able to execute sniff tests at the front doors of private residences based on whim and fancy.88 However, this is neither the issue here not a concern that is endemic to sniff tests conducted at the front doors of private residences. Regarding the former, the sniff test at issue here was not based on whim and fancy, as the police were tipped off regarding defendants residence being used to grow marijuana.89 Regarding the latter, sniff tests applied to cars and baggage are just as susceptible to being employed in a discriminatory or arbitrary manner. Indeed, as MacDonnell shows in his article, sniff tests have been applied to parking lots, self-storage containers, and Federal Express packages in general.90 Another reason that the Jardines courts attempt to distinguish sniff tests executed at the front doors of private residences with those executed elsewhere is unpersuasive is because the courts argument that a sniff test executed at the front door of a private residence is more intrusive than a sniff test conducted elsewhere91 is untrue. While it is true that a sniff test executed at a private residence is a sophisticated undertaking that [is] the end result of a

87

See, e.g., Hoop v. State, 909 N.E.2d 463, 468 (Ind. App. 2009) (holding that a sniff test does not implicate the Fourth Amendment merely because it is conducted at the door of ones residence); Fitzgerald v. State, 384 Md. 484, 494 (Md. 2004) (holding that the location of a sniff test is immaterial as to whether a Fourth Amendment search has occurred); People v. Dunn, 77 N.Y.2d 19, 23 (1990) (holding that the canine sniff conducted outside [defendants] apartment . . . did not constitute a search within the meaning of the Fourth Amendment). 88 See Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 KY. L.J. 405 (1997). In his article, Bird shows that dog sniffs are most effective when implemented in tandem with law enforcement expertise and least effective when conducting random searches. Id. at 426-27. Sniff tests that are conducted at random inevitably trigger numerous false alerts. Id. at 430. Thus, because sniff tests are accorded special status partly as a result of their being minimally intrusive, sniff tests conducted based on whim and fancy would be problematic. 89 Jardines, 73 So. 3d at 37. 90 MacDonnell, supra note 13, at 319-20. 91 Jardines, 73 So. 3d at 48-49.

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sustained and coordinated effort by various law enforcement departments,92 it is also true that a sniff test executed in most other locations is equally, if not more, sophisticated. For example, the sniff test that occurred in Place involved a coordinated effort by various law enforcement departments in different statesFlorida and New York.93 Also, while it is true that a sniff test executed at a private residence can create a public spectacle that may cause public opprobrium, humiliation and embarrassment to the person against whom it is being applied,94 the Jardines court seems to have failed to realize that a sniff test executed outside ones vehicle aside a busy street or a sniff test being applied to ones luggage at a busy airport can also create a public spectacle that causes public opprobrium, humiliation and embarrassment. Thus, it is a safe prediction that the United States Supreme Court will overrule Jardines. Jardiness interpretation of the contraband exception is misguided and, as was the case with Kyllo before Caballes, is a source of confusion in this issues jurisprudence. IV. CONCLUSION For the reasons articulated in this casenote, Jardines is an opinion out in left field, so to speak. Jardiness interpretation of the ambit of the contraband exception is misguided, as (i) it erroneously interprets the Supreme Courts precedents regarding the contraband exception too narrowly and (ii) its attempt to distinguish sniff tests executed at private residences with those executed elsewhere is unpersuasive. Thus, the United States Supreme Court is likely to overrule it and hold that a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is not a Fourth Amendment search requiring probable cause.
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Id. at 48. United States v. Place, 462 U.S. 696, 698-99 (1983). 94 Jardines, 77 So. 3d at 49.

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