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Wednesday, March 27, 2013

SCOTUS: SCOTUS rules on K-9 sniffs what?

--While not being a favorable ruling for law enforcement it is not devastating.
Just puts the onus on the police to do a little more leg work.--

Story at

Doug Wyllie
PoliceOne Editor in Chief

The Supreme Court’s ruling in Florida v. Jardines means that the use of a drug dog to develop probable cause to obtain a warrant is not permissible in the home context.

Yesterday, the Supreme Court issued its decision in the case of Florida v. Jardines, which had called into question the use of a drug-sniffing police K-9 in the area surrounding a person’s home — commonly called “curtilage.”

Several SCOTUS decisions had previously held that a “sniff is not a search” when a detector dog sniffs the exterior of luggage or a vehicle, but in Jardines, the Court was faced with the question of whether or not the presence of a K-9 named “Franky” on Joelis Jardines’ front porch violated his legitimate expectation of privacy.

In what many law enforcement officials consider a setback, the Court sided with Jardines. Justice Antonin Scalia wrote in the majority opinion 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.”

What Does the Ruling Mean?

The comments posted beneath yesterday’s AP news piece were many and varied, and it was almost immediately apparent that there was some confusion about the implications of the decision.

“I disagree with this ruling,” said one PoliceOne Member, “But it has been made. Now what?”

Good question.

PoliceOne Legal Columnist Joanne Eldridge explained that the facts (as they appear in the appellate record) suggest that what the police had at the time of the dog’s use was:

1.) An unverified tip about growing marijuana that was one month old, and
2.) No observed vehicles or activity based on a brief surveillance of the home.

“The warrant to search the home was obtained after the dog’s alert,” Edridge said, which served as a basis to establish probable cause.

“It seems clear that, without the dog’s alert, obtaining a warrant to search for drugs at that time was unlikely,” she added.

The “sniff” at issue occurred on the front porch of Jardines’ house, and the Court noted that the front porch has long been considered an area to which the activity of home life extends.

“That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred,” the Court stated.

Eldridge explained, “The Court’s holding means that the use of a drug dog to develop probable cause to obtain a warrant is not permissible in the home context. A warrant would need to be obtained before the dog could be used to conduct a search.”

Mere moments after the decision had been rendered, PoliceOne Legal Columnist Terry Dwyer said, “I haven’t read the full decision yet, but I’m not surprised by the result in light of the prior Court statement with regard to curtilage — the area around one’s home in which the reasonable expectation of privacy in the home extends.”

Dwyer pointed out that the factors in considering the extent of curtilage were laid out in U.S. v. Dunn in 1987.

“The dog sniff on the property is an intrusion onto Constitutionally protected space,” Dwyer said. “It would be a different situation if the same evidence could have been obtained outside the curtilage — then it’d be admissible — but here, there was an entry onto private property.”

Dwyer continued, “Justice Scalia’s writing the majority opinion — and siding as he did with the Florida Supreme Court — is not surprising in light of his 2001 opinion in Kyllo v. U.S. in which he also upheld the privacy of the home, and more recently in U.S. v. Jones in which he relied on the common law trespass test to find a Fourth Amendment violation in the placement of a GPS device on a vehicle without a valid warrant.”

In examining the Jardines case, the Court framed its inquiry in terms of whether the police intrusion was licensed or unlicensed — that is, whether they had either Jardines’ permission or the implicit license of visitors who may lawfully approach someone’s home.

Such visitors would be people like mail carriers, solicitors, Girl Scouts, Jehovah’s Witnesses, trick-or-treaters, or other similarly-situated strangers.

“Custom allows such approaches,” Eldridge explained. “What custom does not permit — and citizens do not implicitly consent to — is what the Court described as introducing a trained police dog to explore the area around the front door.”

Eldridge then quoted the Court directly, saying, “Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.”

Last month, a unanimous Court struck down Florida’s effort to place strict regulations on the certifications and record-keeping of police drug dogs. In Florida v. Harris, the Court upheld a finding of probable cause in a warrantless vehicle search conducted after a drug dog’s alert.

Although the use of drug-sniffing dogs was approved in Harris, the Court’s holding in Jardines imposes a requirement that the police have probable cause to conduct a search before employing a dog in a search of the home or its curtilage.