Unwarranted Sniff Test Gets Supreme Audience

(CN) - The Supreme Court will decide whether police need probable cause to use a drug-sniffing dog outside of a private home without a warrant.

Florida police executed such a search on the property of Joelis Jardines, ultimately retrieving marijuana plants from the home. In April 2011, however, the Florida Supreme Court ruled that the evidence was inadmissible because the warrantless "sniff test" violated Jardines' Fourth Amendment rights.

Though it sounds less invasive than a warrantless search of a home, the court noted that the sniff test to which Jardines was subjected "was an intrusive procedure," ultimately resulting in several hours of "on-the-scene government activity."

"There was no anonymity for the resident," Justice James Perry wrote for the court in April. "Such a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many - neighbors, passers-by, and the public at large - will be viewed as an official accusation of crime. Further, if 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."

The 70-page decision also noted that neither Florida nor Jardines identified "a single case in which the United States Supreme Court has indicated that a search for evidence for use in a criminal prosecution, absent special needs beyond the normal need of law enforcement, may be based on anything other than probable cause."

In taking up the case on Friday, the U.S. Supreme Court agreed to consider only one of the two questions presented by the state, which asks whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause. The order also says Jardines can proceed in forma pauperis.

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