I could just see that one in court: “Because I did a really crappy job trying to conduct the warrantless search, I put forth that it cannot count as a warrantless search, Your Honor.”
Does it matter? Let’s find out!
(a) His own eyes
(b) Binoculars
(c) Special police-only binoculars
(d) A plastic cup that he believes magically reveals your drugs (but it doesn’t)
What result for each?
As we know, especially from the FL SC decision, 4th AM jurisprudence is very complicated at times. If we relate this is a traffic stop, according to Whren v. United States, a police officer’s subjective intentions to pull over a motorist do to race does not implicate the 4th AM, but the Equal Protection Clause.
It will be interesting when a decision is handed down if the court mentions Whren.
Specifics please?
You’ve never watched The Mentalist have you? (not that its a real cop show, but I think you understand the point I am making - people react to stuff).
Bring in a ‘trained sniffer monkey’ and have it ‘react’ to the trunk fo a car - the ‘suspects’ reaction to that can tell you quite a bit - if not garner a confession right there.
Now, if the suspect was removed from the scene - then nothing changes of course - except now you have moved to a true search.
Does an overnight guest in a home have the same expectation of privacy as a person who has established residency?
Carter concerned an officer peering through a window and saw a drugs in view!
The suspect isn’t “removed from the scene”. We are talking about a case where the cop just went up to the door with the dog; the suspect wasn’t present.
This is interesting, though. Are you saying a search occurs when an LEO uses equipment he knows doesn’t do anything, just to provoke a response?
ETA: No - Simon Baker’s face creeps me out.
If there is no actual intent or attempt to search, it’s just a mindfuck.
How did the courts rule in each?
Its a type of search to be sure - but I’ve probably digressed to much - this is getting down the slippery slope of how officers might use tools to ‘imply’ a search has happened that could then force the hand of the suspect or the court.
IOW, using RP’s “senseless dog” - the officer uses that as evidence to get a warrant - knowing full well the dog did not hit on anything - is that a valid warrant?
Going further - he uses that same hit to force his way into the house to do a full search due to ‘exigant circumstances’ …
The mere presence of the tool implies a more thorough search is happening - and that the intent of the officer is to conduct said search - whether or not it actually does.
Just to be clear, I think on the first two pages of the thread we set out the actual legal framework that applies to this question. What I was trying to get at with my series of questions is what these posters would themselves define as a search, apart from the pre-existing law (which contradicts with some of the answers and not others).
So I think we’ve established that the presence of an officer on the doorstep with a drug dog is not itself a search, according to most of the posters who answered.
And we’ve further established that whether the dog actually reports any information or not is irrelevant to whether it’s a search.
Indeed, you do not seem to really care what’s actually going on with the dog’s nose and the smells so much as the fact that the officer *thinks *he is learning something about the inside of the house using something other than his own senses.
Is that right so far?
A police officer looked in an apartment window through a gap in the closed blind and observed respondents Carter and Johns and the apartment’s lessee bagging cocaine. After respondents were arrested, they moved to suppress, inter alia, cocaine and other evidence obtained from the apartment and their car, arguing that the officer’s initial observation was an unreasonable search in violation of the Fourth Amendment. Respondents were convicted of state drug offenses. The Minnesota trial court held that since they were not overnight social guests, they were not entitled to Fourth Amendment protection, and that the officer’s observation was not a search under the Amendment. The State Court of Appeals held that Carter did not have “standing” to object to the officer’s actions because the evidence indicated that he used the apartment for a business purpose–to package drugs–and, separately, affirmed Johns’ conviction without addressing the “standing” issue. In reversing, the State Supreme Court held that respondents had “standing” to claim Fourth Amendment protection because they had a legitimate expectation of privacy in the invaded place, and that the officer’s observation constituted an unreasonable search.
Held: Any search that may have occurred did not violate respondents’ Fourth Amendment rights.
Now, as we know, states can have stricter conduct under thier Constitution’s, but we are speaking of the 4th AM.
See the internal citation, the Olson case, about residents and such.
As long as you understand I have the right to not open the door unless he has a warrant.
I think we are losing perspective on the 4th Amendment here. I have people responding to me that a dog sniffing through your door is not a “search” or at least hasn’t been proven a “search”. Guess what everyone, a dog sniffing for drugs in your house is a search just like when a cop stops you in your car and looks through your window around the interior of your car. The question is: is the search unreasonable or not. The courts have long ruled that anything publicly visible (like the interior of your car) is reasonable and anything that violates your expectation of privacy is unreasonable. Lawyers, am I good so far?
What we are discussing is that grey area of what is publicly visible (like the thermal signature of your house or where you drove over a month) vs. the expectation of privacy (like if you have a sauna in your house* or your driving patterns). Some of it deals with technology that is not available to or at least owned by the general public (like a thermal camera or a GPS tracker).
*Dogs are not 100% accurate. In fact one study has them at a 56% false positive rate so the argument that they may falsly pick up legal activity also applies.
Also at play here is the gray area of private property and public access. People are allowed to walk up to my door and that a cop can do the same on a fishing expedition. But is a drug-sniffing dog available to the general public? That’s to you Bricker that said that neighbors are allowed to bring their dog on my porch. I’d also ask if given the now liberal standard of privacy SCOTUS has given us, then how can anyone not think that this is not an unreasonable search?
The intent of the officer is the only thing that matters - the ‘Drug Dog’ serves no other purpose than to ‘search’ for drugs - therefore bringing the ‘Drug Dog’ to the front door implies that a ‘search for drugs’ is happening.
Its a search, and therefore should require a warrant - regardless of the outcome of said search or how far inside the private property the dog must go. Using the dog on otherwise public property to indicate the presence of drugs inside a given area is fine so long as teh search after that fact is done with a warrant. (It could even lead to teh detainment of said individuals/monitoring of property until the warrant can be obtained).
No. You’re right that there are two questions, is it a search and is it reasonable. You’re wrong that the answer to the first question is “yes” with respect to the car facts. It is not a “search,” as the legal term is defined, to identify objects in plain view at a traffic stop.
So if I bring my binoculars to a public rooftop to search the street corner for drug dealers, I’m searching?
I think not. I think the legal term is a bit narrower than the colloquial term, and it must turn to some degree on the invasion of privacy.
In Illinois v. McArthur, the SC permitted police from allowing a suspect into his home for 2 hours until a warrant could be obtained, unless an officer went in also.
Objective, so he could NOT destroy the drugs.
You are absolutely searching - for infomation that you can then use to garner probable cause to take it to the next level.
It is not an invasive search - as both you and the person(s) being ‘viewed’ are in plain sight.
Yes. However, not perhaps in the way you might think though.
What we have is a right to privacy. If I choose to use that privacy to do illegal things, that does not invalidate my right, which is constitutionally protected. To violate it, we have decided that it requires a warrant, signed by a judge, which describes what they may search for, and somewhere exists documentation describing why it was issued. The police have a job to curtail illegal activities, but they have to do so without randomly trawling around peoples’ homes. They have to build a case, or observe, using their own faculties, activity that would justify probable cause. This is an important protection against abuse of power by the police.
I meant ‘are in public’ not in ‘plain sight’ since the binoculars may improve the vision of the officer beyond normal means - the fact that both folks - or atleast the observed - are in a public place changes the invasiveness of the observing.
Except a car possibly, that would fall under the “Automobile Exception” to a warrant requirment.
Yes, a SW has to be signed by a Judge/Magistrate, while an arrest warrant need not always be signed by such, emphasis added.