# Is a dog sniff at the front door a search? **URL:** \ **Category:** Great Debates\ **Created:** [September 30, 2012, 11:38pm UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341 "2012-09-30T23:38:04Z")\ **Posts on this page:** 16\ **Page:** 13
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [October 5, 2012, 7:43pm UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/241 "2012-10-05T19:43:41Z")
Oh by the way, for the record, I am not a lawyer either. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [October 6, 2012, 1:50am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/242 "2012-10-06T01:50:40Z")
I **am** a kayaker. Just sayin. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [October 7, 2012, 4:20am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/243 "2012-10-07T04:20:01Z")
> [@Enderw24](#): > > I’d argue that it is a search. > > The Supreme court has previously ruled that a dog sniff outside a car is NOT a search and they base the decision on the fact that the only thing the dog would alert is illegal activity. I don’t really agree that should be the justification but I do understand that being out in public offers you less 4th Amendment protection than the privacy of your home. > > Some in this thread have argued that if you can smell it outside the home, it’s fair game. I’d argue that a dog is a tool used by the department specifically to search for something that wouldn’t be readily apparent to the nose of a human. In the same way the Supreme Court has previously struck down the ability of police to use heat scanners on your house, so too should they strike this down. > > Finally, it’s a stretch, but I’d also say that the smells escaping your house can also be seen as like a garbage situation. Put the garbage out by the curb? You’re throwing it away and it’s fair game. If it’s still right by your house? It may be right there out in the open, but it’s still yours and looking through that is a search. that’s how I see it. even if the door is literally at the edge of the sidewalk the dog represents a mechanical probe. Now if the dog’s nose is not at the threshold of the house and the smell wafts out then the same rules would apply assuming the dog was able to disseminate the difference between the house in question and the houses on either side. I think the dog would have to demonstrate it can point to the exact house in order to qualify a positive hit. It’s all academic because pot reeks enough for a dog to smell it at a considerable distance. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 8, 2012, 10:09pm UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/244 "2012-10-08T22:09:33Z")
I’ll admit that I only read the first two pages. Here’s my problem. Dog sniffs have been upheld in airports and autos because of a reduced expectation of privacy in those places. As Kyollo shows, police can’t use devices to “see” inside of a house because of a greater expectation of privacy in a home. And IIRC, the curtilage of a home, for 4th amendment purposes, is the same as the home itself. Now, sure it’s reasonable to expect the Amway guy or door to door solicitors to come to my home for a particular purpose. How that is analogous to the government basically loitering on my front porch while using a dog to detect criminal activity escapes me. I predict a Scalia opinion upholding the FL Supreme Court along the same lines as Kyollo and Jones. It’s 1) a trespass, and 2) a violation of the sanctity of the home which has a higher protection. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [October 8, 2012, 10:41pm UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/245 "2012-10-08T22:41:44Z")
> [@jtgain](#): > > I predict a Scalia opinion upholding the FL Supreme Court along the same lines as Kyollo and Jones. It’s 1) a trespass, and 2) a violation of the sanctity of the home which has a higher protection. Does the Court ever release the Certiorari vote and who voted to grant it? ---
**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:** [October 8, 2012, 11:01pm UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/246 "2012-10-08T23:01:14Z")
> [@jtgain](#): > > I’ll admit that I only read the first two pages. Your objections are answered further in the thread. But since I’m a nice guy… In short, your first premise is wrong. The sniffs were not “upheld in airports and autos because of a reduced expectation of privacy in those places.” Rather, they were quite explicitly upheld because of the lack of any expectation of privacy with respect to the presence of contraband, the only thing the dog can indicate. And Kyllo has been explicitly distinguished by the Supreme Court, as unlike a thermal sensor which allows the user to see all manner of private things, the human using a dog is only in a “bark twice for yes” kind of situation. You might object that the sniff will allow the officers to enter even if the dog gets it wrong and that this violates privacy, but if so your objection does not concern whether the sniff is a search or not, but instead whether a positive result should provide cause to enter. Finally, the notion that your privacy with respect to the government is the equivalent of your privacy with respect to random third parties is long-standing Fourth Amendment precedent, for better or worse. If you come up with a better way of establishing objective expectations of privacy, you should set it out in a good article. 🙂 ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [October 8, 2012, 11:13pm UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/247 "2012-10-08T23:13:35Z")
> [@Richard\_Parker](#): > > You might object that the sniff will allow the officers to enter even if the dog gets it wrong and that this violates privacy, but if so your objection does not concern whether the sniff is a search or not, but instead whether a positive result should provide cause to enter. If a positive hit occurred, under last years Kentucky v. King ruling, would that give grounds to a warrantless entry to prevent the destruction of evidence? The 2 have never been decided together though, but… thoughts? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 9, 2012, 1:23am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/248 "2012-10-09T01:23:47Z")
> [@Richard\_Parker](#): > > Your objections are answered further in the thread. > > But since I’m a nice guy… > > In short, your first premise is wrong. The sniffs were not “upheld in airports and autos because of a reduced expectation of privacy in those places.” Rather, they were quite explicitly upheld because of the lack of any expectation of privacy with respect to the presence of contraband, the only thing the dog can indicate. > > And Kyllo has been explicitly distinguished by the Supreme Court, as unlike a thermal sensor which allows the user to see all manner of private things, the human using a dog is only in a “bark twice for yes” kind of situation. > > You might object that the sniff will allow the officers to enter even if the dog gets it wrong and that this violates privacy, but if so your objection does not concern whether the sniff is a search or not, but instead whether a positive result should provide cause to enter. > > Finally, the notion that your privacy with respect to the government is the equivalent of your privacy with respect to random third parties is long-standing Fourth Amendment precedent, for better or worse. If you come up with a better way of establishing objective expectations of privacy, you should set it out in a good article. 🙂 Fair enough. But how is it not a trespass (at least a civil trespass) under the reasoning in Jones? The curtilage of a house is for all 4th amendment respects, the house itself. In Cirillo (sp?) why couldn’t the officer simply have scaled the 10 foot and 8 foot fences just as a Jehovah’s Witness trying to talk to the homeowner, instead of needing to use aerial survellience? Yes, the public has a right to approach my door to speak to me or leave leaflets tucked in the door, but they don’t have a right to loiter, or come to my door snooping for things. I implicitly do not give people permission to do that, and it’s reasonable to think that most homeowners do not give that type of permission. Civil trespass is strict liability anyways, and I can sue for the trampling of a blade of grass at common law. Even the strictest, pre-Katz cases held that physical trespass was what the framers were trying to prevent in 4th amendment cases. ---
**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:** [October 9, 2012, 1:54am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/249 "2012-10-09T01:54:07Z")
Whether it is trespassing or not depends on the circumstances. We can certainly imagine circumstances in which the officer would or would not be trespassing to be on the stoop. But, first, we have no idea the scope of the reasoning in _Jones_. Most scholars (and the Court itself really) thought trespassing was irrelevant until it got revived last year in what are quite unclear circumstances. And second, whether the officer can be there is a much broader question than whether the sniff is a search. There’s more stare decisis to be reckoned with down that trail. But I agree that following that reasoning may be more fruitful that trying to craft a right to keep the smell of your contraband private. I would hazard the prediction, however, that this one is gonna be 5-4 or 6-3 possible with Sotomayor in the majority. ---
**Author:** ![Ethilrist](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ethilrist/32/4604_2.png) [@Ethilrist](https://boards.straightdope.com/u/Ethilrist)\ **Post date:** [October 9, 2012, 2:10am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/250 "2012-10-09T02:10:11Z")
> [@Boyo\_Jim](#): > > I have one question, the answer to which might change my opinion. Will the dog “automatically” react upon sniffing drugs, or does a handler have to give a command equivalent to an “on” switch? If under normal circumstances the dog would stay idle whether or not it smelled drugs, is a different case than whether the officer commanded the sniff and reaction. This question’s ship may have sailed several pages back, but I don’t think it was answered. I’ve spoken with a k-9 handler on the St. Paul Police department. He said that his dog would occasional alert without having been ordered to, just because he passed something that triggered an alert: he was being walked past a car in an impound lot, on their way to the kennel, and the car had a used roach clip in the glove compartment. The dog sat down by the door, which was his signal that he’d found something, so the cop had the car searched. Now, this doesn’t mean they _always_ sniff for things when they aren’t ordered to, nor that they _always_ alert when they sniff something, but they can. ---
**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:** [October 31, 2012, 5:39pm UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/251 "2012-10-31T17:39:55Z")
Very surprising oral argument in this case. Nice summary here: [Thoughts on the Oral Arguments in the Dog Sniff Cases - The Volokh ConspiracyThe Volokh Conspiracy](http://www.volokh.com/2012/10/31/thoughts-on-the-oral-arguments-in-the-dog-sniff-cases/) > [@](#): > > I think there was a majority of Justices who seemed to think it was a search to bring the dog to the front door to smell for drugs, although on which exact grounds wasn’t entirely clear. Justice Kennedy was clear and aggressive from the get-go that he did not agree with the Caballes argument that there is no reasonable expectation of privacy in the presence of drugs: He called it circular and repeatedly stated that the rationale “won’t work for [him]” when the drugs were hidden from plain view. > > Justice Scalia also expressed great skepticism of the government’s view. Surprisingly, Justice Scalia thought it was clearly a Fourth Amendment search for an officer to go up to the front door with an intent to smell for drugs even if he had no dog: In his view, a homeowner impliedly consents to a friendly visit or a knock-and-talk by an officer but does not consent to an officer walking up to the front steps who intends to smell for drugs inside. This was a puzzling position for Justice Scalia to take, as he is the primary force behind the Supreme Court’s caselaw forcefully rejecting the relevance of an officer’s subjective intent in Fourth Amendment law (see e.g., Whren, Al Kidd). Also, as Justice Sotomayor pointed out, real police officers have dual intents: An officer who conducts a knock-and-talk is also looking for drugs inside. But Justice Scalia seemed to think intent was determinative here, following his footnote in Jones, and that entering the curtilage with intent to sniff (with or without a dog) made the conduct a Fourth Amendment search. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [November 1, 2012, 12:01am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/252 "2012-11-01T00:01:45Z")
I saw that the arguments had occurred and came here looking for any updates. Thanks for the link! I look forward to more discussion now or when a decision is made. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 1, 2012, 12:12am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/253 "2012-11-01T00:12:48Z")
Unusual to see the court’s liberals expanding police power while conservatives contract it, to say the least. ---
**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:** [November 1, 2012, 12:26am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/254 "2012-11-01T00:26:10Z")
I’m a little stunned that Kennedy and Scalia now think that _Caballes_ rests on circular reasoning insofar as it rests on the principle that there is no right to privacy in contraband. First, it isn’t circular by any ordinary definition. It might be wrong, of course, but it isn’t circular. And second, they voted with the majority in _Caballes_! Did they just see that the opinion was about drugs and figure “who cares?” and now that it’s about dogs at your house suddenly the Conservatives care? Or what? ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [November 1, 2012, 1:25am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/255 "2012-11-01T01:25:25Z")
A ruling should be handed down in January sometime. Let’s see how this ruling when it comes down conforms with Florida v. Harris when that is handed down, and compare majority and dissenting Justices in each case. The 4th AM has never been tested more since it took effect in 1791. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [November 1, 2012, 2:10am UTC](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341/256 "2012-11-01T02:10:46Z")
I feel vindicated - [QUOTE=Justice Ruth Bader Ginsburg] Justice Ruth Bader Ginsburg said that unlike trick-or-treaters, or a door-to-door salesman, there was no implied consent for the presence of police in this case. “You can say, yes, there’s an implied invitation to the Girl Scout cookie seller, to the postman, even to the police officer, but not police officer with dog, when the only reason for having the dog is to find out if there’s contraband in the house,” she said. [/QUOTE] [Previous page](https://boards.straightdope.com/t/is-a-dog-sniff-at-the-front-door-a-search/636341.md?page=12)