(Washington, D.C.) – On March 26, the Supreme Court issued its opinion in Florida v. Jardines, a case involving police use of a drug-sniffing dog on the front porch of a home to detect marijuana growing inside. The Court held that “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”After receiving an anonymous tip that marijuana was being grown in a house, police brought a drug-sniffing dog to the front porch. When ‘Franky”, the drug-sniffing dog, alerted to the presence of pot, the police applied for a search a warrant, and subsequesntly found marijuana in the house.Prior to trial, the defendant’s public defender filed a motion to suppress arguing that the use of the drug-sniffing dog violated the U.S. Constitution’s Fourth Amendment’s protection against unreasonable searches and seizures.  Miami –Dade Circuit Court Judge Will Thomas, who was nominated by President Barack Obama late last year to become a U.S. District Court Judge, agreed.  The State of Florida appealed, and the decision was reversed by the Third District Court of Appeal in Miami.

The defendant petitioned for review by the Florida Supreme Court and the district court decision was overturned reinstating the original ruling granting the motion to suppress.   The State of Florida petitioned for certiorari review in the U.S. Supreme Court.   Oral arguments were heard by the Supreme Court last fall.  Long time Assistant Public Defender Howard Blumberg argued on behalf of Jardines.

The Court’s opinion in Jardines is narrowly crafted, focusing on the government’s physical intrusion into the constitutionally protected area immediately surrounding the home known as the “curtilage” for the purposes of gathering evidence. However, there is no implicit license to introduce “a trained police dog to explore the area around the home in hopes of discovering incriminating evidence.” Since the officers were able to discover that marijuana was being grown in the home only by “physically intruding on Jardines’ property to gather evidence,” the dog sniff search was unconstitutional in the absence of a warrant.

The majority opinion explicitly declined to consider whether the officers’ search of Jardines’ home violated his reasonable expectation of privacy; it was sufficient to find a constitutional violation based on what the Court characterized as “the traditional property-based understanding of the Fourth Amendment.” A concurring opinion from Justice Kagan and joined by Justices Ginsburg and Sotomayor went further. “Yes,” Justice Kagan wrote, the officers’ actions constituted a trespass. “Was it also an invasion of privacy? Yes, that as well.”

Robert Malove
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South Florida Criminal Defense Attorney