# If a cop illegally spots marijuana growing in a house, can he get a warrant? **URL:** \ **Category:** Factual Questions\ **Created:** [December 24, 2008, 6:13am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516 "2008-12-24T06:13:03Z")\ **Posts on this page:** 8\ **Page:** 3
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [December 26, 2008, 6:23am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/41 "2008-12-26T06:23:44Z")
> [@DSYoungEsq](#): > > There is no case on point, and despite **Richard Parker** ’s bland assurance that the holding in _Kyllo_ is controlling, that is not necessarily the case. Indeed, I would argue that _Kyllo_ is entirely inapposite to the case posited by the OP I assure you, my assurances are far from bland. They are quite spicy indeed. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 26, 2008, 8:11am UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/42 "2008-12-26T08:11:38Z")
> [@threemae](#): > > Sorry to hijack, but how in the heck do the rulings cited by **Gfactor** square with the use of drug sniffing dogs, particularly in a situation where a person is pulled over and there’s nothing immediately observable by police to suggest something illegal. The court has made clear that expectations of privacy are weaker in an automobile than they are in one’s home. > [@](#): > > We have said that the Fourth Amendment draws “a firm line at the entrance to the house,” Payton, 445 U. S., at 590. That line, we think, must be not only firm but also bright [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-8508](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-8508) Courts differ on whether \*Kyllo \* requires a different result for drug dogs and houses. Compare > [@](#): > > b. Kyllo v. United States > > Defendant argues that the Supreme Court’s decision in Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), teaches that the heightened expectation of privacy in one’s home makes the warrantless search in this case improper. In Kyllo, the Supreme Court considered whether the use of a thermal imaging device to discover heat emanating from a home–consistent [\*24] with the cultivation of marijuana–constituted a “search” under the Fourth Amendment. The Court held that the thermal imaging equipment revealed private details about the interior of the home that would have been undiscoverable without the assistance of specialized technology, and therefore constituted a search of the interior of that home for purposes of the Fourth Amendment for which a warrant was required. See id. at 40. Defendant argues a drug-sniffing dog–like thermal imaging equipment–is a specialized device that reveals private details about the interior of a home. Accordingly, Defendant argues I should extend Kyllo to the circumstances of this case and find the dog sniff outside his apartment to be “presumptively unreasonable without a warrant.” I decline this invitation. > > Defendant’s reliance on Kyllo in the context of a dog sniff test is misplaced. Initially, I note that the Supreme Court in Caballes distinguished a dog sniff test from the use of thermal imaging equipment considered in Kyllo: > > ``` > Critical to [the Kyllo] decision was the fact that the device was capable of detecting lawful activity--in that case, intimate details in a home, such as "at what hour each night the [*25] lady of the house takes her daily sauna and bath." The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. 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. > > ``` > > Caballes, supra, 543 U.S. at 409-10 (quoting Kyllo, supra, 533 U.S. at 38). > > The Kyllo Court emphasized that requiring a warrant for the use of thermal imaging technology “assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, 533 U.S. at 34-35. Quoting Carroll v. United States, 267 U.S. 132, 149, 45 S. Ct. 280, 69 L. Ed. 543, T.D. 3686 (1925), the Court further noted: “The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted.” Kyllo, 533 U.S. at 40. Thus, if “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without [\*26] physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Id. > > It cannot seriously be argued that a dog can explore “details of the home” that would “previously have been unknowable” without physical intrusion. As early as 800 B.C., Homer told the story of Argos–a dog raised by Ulysses before setting out for Troy–who recognized Ulysses disguised as a beggar. In 1848, John Lord Campbell recounted the tale of Sir Thomas More, after being appointed Lord Chancellor in October 1529, employing a beggar-woman’s little dog to discover her identity. JOHN LORD CAMPBELL, 1 THE LIVES OF THE LORD CHANCELLORS 548-49 (3d ed. 1848). In 1918, a court in Kentucky noted dogs had been employed as scent-detectors for hundreds of years. See Fitzgerald v. Maryland, 153 Md. App. 601, 837 A.2d 989, 1037 (Md. Ct. App. 2003) (citing Blair v. Kentucky, 181 Ky. 218, 204 S.W. 67, 68 (Ky. Ct. App. 1918)). To the extent a dog can detect a scent, therefore, it does not detect anything that “would have been unknowable” without physical intrusion when the Fourth Amendment was adopted in 1791. Cf. Cusumano, supra, 67 F.3d at 1509 (distinguishing a thermal imaging device from “the less refined tools of [\*27] days past”). Moreover, it cannot be doubted that a dog sniff–unlike a thermal imaging device–does not reveal “details of the home” because a dog sniff–unlike a thermal imaging device–does not reveal any details at all, but “informs the police instead merely of a reasonable chance of finding contraband they have yet to put their hands on.” See Caballes, supra, 543 U.S. at 416 (Souter, J., dissenting). > > Further–unlike the thermal imaging devices in Kyllo–a dog sniff does not detect “information regarding the interior of the home” that could not otherwise have been obtained without “physical ‘intrusion into a constitutionally protected area.’” Kyllo, 533 U.S. at 34 (quoting Silverman v. United States, 365 U.S. 505, 512, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961)). Simply put, a dog–unlike a thermal imaging device–does not detect anything inside a home, but merely detects the particulate odors that have escaped from a home. In that sense, the odors are no longer “private,” but instead are intermingled with “the public airspace containing the incriminating odor.” See Morales-Zamora, supra, 914 F.2d at 205. No physical intrusion is–or historically has been–required to detect suspicious odors. See, e.g., Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436 (1948) [\*28] (noting the smell of opium emanating from a room provides probable cause to believe opium is being smoked inside); Taylor v. United States, 286 U.S. 1, 6, 52 S. Ct. 466, 76 L. Ed. 951 (1932) (noting police officers–as they “approached the garage”–relied on their sense of smell to determine “the odor of whisky coming from within”); Venema, supra, 563 F.2d at 1005 (holding the detection of odors outside the locker involved “no physical trespass of the locker itself”). The fact that the smell at issue here was detected by a dog rather than a human does not change its fundamental non-private nature. Cf. United States v. Bronstein, 521 F.2d 459, 461 (2d Cir. 1975) (noting the constitutional privacy interest in a smell is the same whether the smell is detected by a canine nose or a human nose). Accordingly, I hold that “as long as the canine unit is lawfully present when the sniff occurs, the ‘canine sniff is not a search within the meaning of the Fourth Amendment.’” Meindl, supra, 83 F. Supp. 2d at 1217 (quoting Reed, supra, 141 F.3d at 650). ``` *United States v. Broadway*, 2008 U.S. Dist. LEXIS 82855 (D. Colo. 2008) ``` and _Commonwealth v. Jamal Taliaferro_, 2008 Va. Cir. LEXIS 112 (Cir. Ct. Newport News Virginia, September 11, 2008) (Even a perfunctory reading of Kyllo reveals that its standard does not apply to dog sniffs. Kyllo is an opinion about the need to limit “advancing technology.”) with State v. Rabb, 920 So. 2d 1175; 2006 Fla. App. LEXIS 1902; 31 Fla. L. Weekly D 510 (Fl. Ct. App. 2006) (2-1), cert. denied, 127 S. Ct. 665; 166 L. Ed. 2d 513; 2006 U.S. LEXIS 9019; 75 U.S.L.W. 3283 (2006) (dog sniff of a home is a search). ---
**Author:** ![Qadgop\_the\_Mercotan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/qadgop_the_mercotan/32/83_2.png) [@Qadgop\_the\_Mercotan](https://boards.straightdope.com/u/Qadgop_the_Mercotan)\ **Post date:** [December 26, 2008, 3:44pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/43 "2008-12-26T15:44:15Z")
[hijack] Gosh, **diggleblop** , you ask a lot of questions related to police surveillance! > **[A question about police asking you to empty your pockets](https://boards.straightdope.com/sdmb/showthread.php?t=483928)** > > Ok, say a policeman pulls up to you while you are walking in the street and then he pulls your buddy over to the front of his car and asked (tells) you to have a seat on the curb, but while he pats your buddy down to “go ahead and empty your pockets... A question about police asking you to empty your pockets > **[A question about answering incriminating questions from police.](https://boards.straightdope.com/sdmb/showthread.php?t=479476)** > > When I watch The First 48 on A&E the detectives are always saying to the suspect, “help yourself, this is your only chance to help yourself, we mean it” and various other versions of the help yourself speech. Now, being guilty, is there really... A question about answering incriminating questions from police. > **[A question about cops and probable cause?](https://boards.straightdope.com/sdmb/showthread.php?t=476956)** > > Alright, say I get pulled over and the cop asks to search my car, I say “no, get a warrant” and then he says, “oops, too late, what’s that? Step out” while pointing to a…I don’t know… a fishing lure in my change console that just happens to look... A question about cops and probable cause? > **[Can police lie about having witnesses against you?](https://boards.straightdope.com/sdmb/showthread.php?t=470121)** > > I’ve noticed that while watching “The First 48” the detectives do occasionally lie to the “witness” or “suspect” to get information. But what I haven’t ever seen them do is lie about having witnesses against them committing the crime. I know police... Can police lie about having witnesses against you? > **[Can a commissioner's questions be held against you in court?](https://boards.straightdope.com/sdmb/showthread.php?t=470118)** > > When I was arrested back in my youth days, I went through the process of fingerprinting, pictures and all that crap. I finally got to go see the commissioner to set my bond and while in there he was asking me questions like, “so, why did you do... Can a commissioner’s questions be held against you in court? > **[Question about police searching a minor?](https://boards.straightdope.com/sdmb/showthread.php?t=469015)** > > Ok, when I was 16, I was driving a car with like 6 of my friends in it, all of us minors. Anyways, we get pulled over by two undercover cops, they showed us their badge then asked us to get out one by one. They did the pat down routine which was... Question about police searching a minor? > **[Can a cop just run your tags while being behind you?](https://boards.straightdope.com/sdmb/showthread.php?t=419075)** > > The question is a little longer, so here goes: If you are driving down the road, doing nothing wrong, following the speed limit, buckled up etc… In the State of Maryland can a police officer who is driving behind you just run your tags for no... Can a cop just run your tags while being behind you? > **[Question about gun carrying legalities.](https://boards.straightdope.com/sdmb/showthread.php?t=458290)** > > In the state of Maryland, it’s very difficult to get a gun carry permit. Well, since I live in Maryland, what would happen if I didn’t have a concealed carry permit and a cop came to my door to serve a child support form (nothing for an arrest or... Question about gun carrying legalities. > **[How do criminal records work state by state?](https://boards.straightdope.com/sdmb/showthread.php?t=458254)** > > If I have a criminal record in Maryland and no other state and a cop stops me in D.C. and does a check on me, would he be notified that I have a criminal record or not? In other words, do records work state by state or are they nationwide? How do criminal records work state by state? > **[Question about being arrested in Hawaii.](https://boards.straightdope.com/sdmb/showthread.php?t=456912)** > > Say I go to Hawaii and while I’m walking on the beach, this hippie comes up to me and offers me some weed, I buy it and it turns out to be a sting by police. Off to jail I go. Ok, I make bail etc… Does Hawaii usually work like normal courts in the... Question about being arrested in Hawaii. > **[Should high speed police chases be outlawed?](https://boards.straightdope.com/sdmb/showthread.php?t=453748)** > > I personally say they should be outlawed, too many people die during these chases. I think that there are a few states now that have it outlawed, isn’t there? What say you? Should high speed police chases be outlawed? > **[Has any police officer gone undercover in a mental ward?](https://boards.straightdope.com/sdmb/showthread.php?t=454673)** > > I’m watching Law and Order and Vincent D’Onofrio’s character has gone undercover posing as a mental patient because a patient recently died there and inmates were subjected to punitive restraints for up to 18 hours without food or water. Has this... Has any police officer gone undercover in a mental ward? > **[Witness Protection Program questions](https://boards.straightdope.com/sdmb/showthread.php?t=454598)** > > When one joins, what is given to them once they do their part in court? For instance, do they get a house? Is it free or do they have to get a job and make payments eventually? Are they given a car? Payments? See where I’m going? Thanks. Witness Protection Program questions > **[Can the FBI pull someone over?](https://boards.straightdope.com/sdmb/showthread.php?t=448417)** > > Now, I’ll elaborate. I know that the FBI doesn’t usually do any such thing for obvious reasons of anonymity and professionalism, not to mention, they aren’t police. But, if I’m on the Capitol Beltway and I’m flying past people erratically at the... Can the FBI pull someone over? Any of the answers come in handy yet? 😉 [/hijack] ---
**Author:** ![Omegaman](https://avatars.discourse-cdn.com/v4/letter/o/e480ec/32.png) [@Omegaman](https://boards.straightdope.com/u/Omegaman)\ **Post date:** [December 26, 2008, 8:48pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/44 "2008-12-26T20:48:02Z")
> [@Qadgop\_the\_Mercotan](#): > > [hijack] > Gosh, **diggleblop** , you ask a lot of questions related to police surveillance! > > [A question about police asking you to empty your pockets - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=483928) > A question about police asking you to empty your pockets > > [A question about answering incriminating questions from police. - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=479476) > A question about answering incriminating questions from police. > > [A question about cops and probable cause? - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=476956) > A question about cops and probable cause? > > [Can police lie about having witnesses against you? - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=470121) > Can police lie about having witnesses against you? > > [Can a commissioner's questions be held against you in court? - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=470118) > Can a commissioner’s questions be held against you in court? > > [Question about police searching a minor? - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=469015) > Question about police searching a minor? > > [Can a cop just run your tags while being behind you? - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=419075) > Can a cop just run your tags while being behind you? > > [Question about gun carrying legalities. - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=458290) > Question about gun carrying legalities. > > [How do criminal records work state by state? - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=458254) > How do criminal records work state by state? > > [Question about being arrested in Hawaii. - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=456912) > Question about being arrested in Hawaii. > > [Should high speed police chases be outlawed? - Great Debates - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=453748) > Should high speed police chases be outlawed? > > [Has any police officer gone undercover in a mental ward? - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=454673) > Has any police officer gone undercover in a mental ward? > > [Witness Protection Program questions - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=454598) > Witness Protection Program questions > > [Can the FBI pull someone over? - Factual Questions - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=448417) > Can the FBI pull someone over? > > Any of the answers come in handy yet? 😉 > [/hijack] I guess your post brought some much needed attention to the poster in question. ---
**Author:** ![Qadgop\_the\_Mercotan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/qadgop_the_mercotan/32/83_2.png) [@Qadgop\_the\_Mercotan](https://boards.straightdope.com/u/Qadgop_the_Mercotan)\ **Post date:** [December 26, 2008, 8:52pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/45 "2008-12-26T20:52:28Z")
> [@Omegaman](#): > > I guess your post brought some much needed attention to the poster in question. Such was not my intent, to get him banned. But I do tend to notice patterns. ---
**Author:** ![Omegaman](https://avatars.discourse-cdn.com/v4/letter/o/e480ec/32.png) [@Omegaman](https://boards.straightdope.com/u/Omegaman)\ **Post date:** [December 26, 2008, 9:47pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/46 "2008-12-26T21:47:40Z")
> [@Qadgop\_the\_Mercotan](#): > > Such was not my intent, to get him banned. > > But I do tend to notice patterns. Well Duh! Anybody that deals with men everyday has to have at least a small shade of compassion about him. I noticed it too. But you can’t go judging people over what they say on a message board. Even still, between all the crime shit and the extended wiener thing, kind of made me wonder. ---
**Author:** ![threemae](https://avatars.discourse-cdn.com/v4/letter/t/5f9b8f/32.png) [@threemae](https://boards.straightdope.com/u/threemae)\ **Post date:** [December 26, 2008, 11:15pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/47 "2008-12-26T23:15:46Z")
> [@Gfactor](#): > > The court has made clear that expectations of privacy are weaker in an automobile than they are in one’s home. … Thank you, **Gfactor**. As always, your responses are of meticulous quality. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [December 27, 2008, 3:25pm UTC](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516/48 "2008-12-27T15:25:03Z")
On the **diggleblop** banning front … His recent banning was also raised in a recent thread of mine. See ATMB [User diggleblop has been banned - About This Message Board - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=499133) for the mod’s explanation. Nothing to do with his unusually high degree of interest in the nuances of criminal law or police procedure. [Previous page](https://boards.straightdope.com/t/if-a-cop-illegally-spots-marijuana-growing-in-a-house-can-he-get-a-warrant/478516.md?page=2)