True, but the larger point is germane to the smaller one. Currently, the police aren’t allowed to just go around checking homes for contraband, they have to have a case, a reason, a collection of evidence to do so. A “contraband dector” violates our rights if used as a first cause because the police don’t have any reason to be there in the first place. They are just fishing, get it? Now if they use the C.D. as a secondary tool after observing shady behaviour then that is different. A good analogy might be a radar detector gun. We can use them as a first cause because the person is out in public, they are are very accurate, and the “search” is non invasive and doesn’t waste time or resources. Our “C.D” OTHOH, is alerting the police to things going on inside private homes; a place where our expectation of privacy is fairly sacrosanct. Additionally, the C.D. is not entirely accurate, subject to handler suggestion, expensive to train and maintain, takes time and needs be on property to conduct a search. We expect them to have a legitimate reason to be searching our homes, not just trawling about hoping to get lucky and find some weed.
One of the Justices was concerned with this type of situation creating a sort of gray zone for the issuance of warrants or the applicability of a k-9 search. I think that’s more of an objection of laziness than anything else. We could easily create some narrow criteria for the issuance of a “sniff warrant” that falls in between the those needed for a full search and first causes.
Current law allows officers to walk up and down the street to doorsteps sniffing for marijuana, and if he sniffs it, to get a warrant. It isn’t clear to me why adding a reliable dog changes the equation. In both cases, the objection is to the fishing approach.
ETA: And so long as we’re getting to the more fundamental problem…the real problem is the drug war, no?
Is the dog being used as a piece of equipment? If so, does this mean the officer could also bring electronic drug detecting equipment to the front door and stick it in a door crack?
Since the Supreme Court’s GPS case last term, it would be a closer question, as they recognized a sort of new way that something can become a search which is by trespass.
But if you assume you’re, say, putting it flush up against the door frame without touching the house, then yeah I think that’s equivalent.
I’m not entirely certain they CAN do that currently Richard. FWIG, they have to have at least a cursory reason to be on private property at all. Can someone knowledgeable weigh in on that for me?
As to your second point: Agreed. The drug war is a total failure and waste of resources.
Comparably, while a DOORSTEP is a “public place” for warrantless arrest purposes, see United States v. Santana, the issue is whether a search would occur if done not randomly, but as a house by house fish hunt.
Without further research on a smell expedition, IMO, that would be a search.
There is no level of investigatory suspicion required for an officer to go up to the typical door of a residence (i.e., to do the same thing a get-out-the-vote campaigner could do). You don’t have to take my word for it, but I don’t have a cite handy at the moment.
C’mon Richard, that not what I meant and you know it.
The Get Out The Vote person has business at your door. We aren’t talking about Officer Friendly knocking on your door to borrow your bathroom because he’s got the runs, and then…HE SMELLS WEED! We are discussing the legality of an officer simply pulling into a neighborhood at random and walking about checking doorknobs and sniffing at windows.
I meant for the proposition that the officer’s intent or purpose for being on the doorstep affect whether the Fourth Amendment is implicated.
Yes, I understand. And I’m saying that I don’t think any case has ever recognized as relevant whether the officer has a planned fishing expedition, happens to be strolling the neighborhood, or has a particular reason for wanting to go to this doorstep. AFAIK, the officer’s purpose for going onto the doorstep is irrelevant for Fourth Amendment purposes.
Yes-the dog is being used as an extra tool to detect drugs. It is not an natural part of his body that she/he must have at all times. Unless the officer hauls that piece of equipment everywhere she/he goes, it is no different than the electronic drug-sniffing equipment I mentioned earlier.
The briefs definitely address the “fishing expedition” issue, and are worth a read for those interested.
But they do not cite any cases to support that argument that “dragnet” style investigative techniques violate the Fourth Amendment if the technique involved is not otherwise a search or stop.
Instead, they appeal to the general intuition that this is bad. For example:
As you can see, the sentence in the brief goes pretty far beyond the case cited for the proposition, and I don’t see anything better in the briefs.
Maybe there is a Fourth Amendment principle waiting to be discovered concerning dragnet searches. And perhaps *Jones *(the GPS case) starts us down that path. But I don’t think we’re there yet.
Oh, this is comparable with some “knock and talk” cases I just looked up. However, what is the “legitimate business” they are there for. As outlined here, the person was already under scrutiny for drug violations. A house to house “smelling expedition”, no one is under scrutiny. To be honest I have never read any case law on the EXACT facts having been challenged.
1 Wayne R. LaFave, Search and Seizure: Looking at or Listening at the Residence § 2.3(c) (4th ed.2007). quoted in Young v. City of Radcliff, 561 F.Supp.2d 767, 786 (W.D.Ky.2008). Essentially, the approach to the main entrance of a residence is properly “invadable” curtilage, under Dunn and Oliver because it is an area that is open to the public.
further; The curtilage question, however, is not the only one relevant to the knock and talk procedure.
…that police with legitimate business may enter the areas of the curtilage which are impliedly open to use by the public,” and in so doing they “are free to keep their eyes open and use their other senses.” http://caselaw.findlaw.com/ky-supreme-court/1108795.html
Reading the amicus brief linked by Richard Parker in Post #55 gives me pause. I agree the passage quoted has little support in the case law. The brief is on stronger ground, though, ISTM, in its questioning of the premise (arguably dictum in the prior cases) that dog sniffs aren’t intrusive because positive alerts necessarily indicate the existence of contraband. If this is true, i.e., they don’t, Kyllo probably applies and the lack of physical intrusion no longer controls. IOW, if this argument is accepted by the Supreme Court, it undercuts point number two in my Post #25 and the case might be affirmed after all, albeit on grounds other than those stated in the original decision.
The “pro-cannabis” side has some pretty good ideas to fight back here. For example, fake marijuana plants that can be used for decorative purposes. People who are pro-cannabis but do not smoke themselves, can place these in their home where someone might catch a glimpse and report them.
And then there are people who drive totally clean cars, but periodically spray them with solvent that they have soaked seeds/stems in. This in response to being pulled over repeatedly for fitting a profile, and helping the community justify the expense of a drug dog. If they are pulled over and the car sniffed, the dog goes apeshit, but the search comes up empty.
I’m seeing the whole situation becoming more and more interesting. Over a friggin plant.
In some jurisdictions a police dog is considered a police officer for some purposes. Your interpretation is not a given and wouldn’t survive a court that considers a police dog itself an officer rather than an extra tool.
Also, K9 officers do haul the “tool” everywhere they go while on duty, don’t they?
Do they bring the “equipment” up to every door they go to, or just to the ones they suspect may harbor drugs? What do the courts have to say about an underage non-human “police officer” that doesn’t get minimum wage or benefits? Could a city make an eight year old child a “police officer” if said child had an uncanny sense of smell?
