H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Florida Supreme Court Closes the Door on Dog Sniff Search

In an important case decided recently by the Florida Supreme Court — the Court held that a dog sniff at the front door of a private residence was an illegal search… thus shutting the door to an expansion of the use of the “dog sniff” tool to invade the privacy of the home of the average citizen.

In Jardines v Florida, the police conducted a warrantless “sniff test” by a drug detection dog at Jardines‟ home and discovered live marijuana plants inside. The trial court granted Jardines‟ motion to suppress the evidence, and the State appealed.

An important point of law from the decision – says it all –

At the very core‟ of the Fourth Amendment „stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.‟ “

Here is the heart of the decision:

On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity–i.e., the preparation for the “sniff test,” the test itself, and the aftermath, which culminated in the full-blown search of Jardines‟ home–lasted for hours.

The “sniff test” apparently took place in plain view of the general public. There was no anonymity for the resident

The court reasoned that this sniff went too far — that the dog sniff at the scene of a traffic stop is one thing — but to conduct a search under these conditions – was a violation of the fourth amendment.

Again – and most importantly – we can see the court’s reasoning:

Further, if government agents can conduct a dog “sniff test” at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct.

Accordingly, we conclude that a “sniff test,” such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a “search” within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.