Back in my November 2012 article, I discussed the Florida v. Joelis Jardines case that was before the Supreme Court. On March 26, 2013, the U.S. Supreme Court (S.C.O.T.U.S.) made a decision, and that decision is the topic of this article.
Here is a brief refresher…a Miami-Dade PD officer, his canine and another officer approached Jardines house to do a knock and talk. On approach to the house, the narcotics trained canine was sniffing and picked up the scent of a narcotic. The canine then started to bracket the scent as trained to do in order to locate the source. The canine lead them to the front door and sniffed at a crack at the bottom of the door and sat down, which indicated the source.
At trial, Jardines moved to suppress the evidence on the basis of an unreasonable search by a canine. The motion was granted by the trial court, but reversed by the Florida Third District Court of Appeal. A petition was filed for discretionary review and the Florida Supreme Court quashed the decision of the Third District Court of Appeal, approving the trial court’s decision; “holding that the use of the trained narcotics dog to investigate Jardines’ home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search.”
The decision by S.C.O.T.U.S. is as follows:
“The government’s use of trained police dogs to investigate the home and its immediate surroundings is a “search” within the meaning of the Fourth Amendment. The judgment of the Supreme Court of Florida is therefore affirmed.”
I read through most of the 29 page decision. It was quite clear that not all of the Justice’s agreed on the above decision and had differing opinions on many of the issues brought out in this case. They argued whether the officers’ were trespassing or not, they concluded that the officers’ were not. We are able to approach a residence just like any other person, whether that’s a delivery person, girl scouts, solicitor, etc. So it was concluded that it wasn’t a violation of Jardines’ Fourth Amendment protections by approaching his home for a “Knock and Talk.” Everything else surrounding this “Knock and Talk” is where there were differing opinions. But all the differing opinions really doesn’t mean squat, it is the final decision of S.C.O.T.U.S. that matters and has an effect on how we conduct investigations.
The bottom line issue is the use of the canine when these officers went to do a knock and talk. If the officers had approached the residence without the canine, knocked on the door, made contact with the resident (Jardines) and using their own senses had smelled or observed the marijuana, then everything would have been fine. Based on their training and experience, they could have then secured the location, applied for a search warrant and then searched the residence upon approval of the search warrant. If no contact was made, then they would need to leave the property within a reasonable amount of time. It was explained that that could be immediately or sufficient time to leave a door hanger, or in our case a business card with a note to call. When they talked about a reasonable amount of time, they referred to people such as delivery drivers or solicitors. It would be reasonable for them to knock on a door and after a minute or so to depart the property. It wouldn’t be reasonable for them to stand at the door for an extended period of time.
There was much discussion about the curtilage of the house and that it is protected. Although you are allowed to enter the curtilage to make contact with the resident, you must use established pathways such as the driveway and/or the walkway to approach the residence. It was also established that it wouldn’t be reasonable to go to the back door instead of the front door. It was stated that there is a customary invitation that allows for friends, neighbors, delivery drivers, etc. to enter the curtilage. Seeing how the curtilage is protected by the Fourth Amendment, this would exclude the use of a canine when conducting a “Knock and Talk”. Here is the opinion of S.C.O.T.U.S.:
“But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.”
In other words, the officers did have a legal right to enter the curtilage of the home to conduct a “Knock and Talk”, but when they brought the canine along, it was no longer legal. The officers turned the typical “Knock and Talk” into a search, which as stated above is prohibited by Fourth Amendment protections.
Now for my opinion, which since I’m not one of the Justice’s, it doesn’t mean much. Every being has a different sense of smell, hearing and vision. I have been in situation where I have smelled marijuana and my partner (human) didn’t. Does that put me in the same boat as a canine? Just because a canine has more olfactory receptors than a human, doesn’t make them special. You could walk through a cloud of marijuana smoke with the common house dog and I’m sure it is going to start sniffing around, not that it knows what it is. Dogs sniff. Narcotics dogs are doing what they are trained to do. They pick up on one of the trained odors, bracket until they zero in on the strongest point (source) and generally sit to indicate they found it. It is all training. During training we are not enhancing their born abilities; we are just getting them to focus on specific odors. Until marijuana was put in front of me for the first time and told what it was, I didn’t know what that odor was. But with training, now I do, so how is that much different with a trained narcotics canine? I don’t see much difference between me or a canine smelling marijuana other than they are able to pick up on much smaller traces of marijuana and other narcotics.
I agree and disagree with S.C.O.T.U.S. on this matter. Although we can walk down a public sidewalk in a neighborhood with a narcotics canine, we shouldn’t be leading that canine down every driveway and walkway in hopes of getting a hit on some narcotics. I do think that if I’m need to go do a “Knock and Talk”, that I should be able to have my canine partner by my side. Whether it is me or the canine smelling a narcotic, it shouldn’t matter. Then again, my opinion doesn’t matter as much as S.C.O.T.U.S.
Read the Florida v. Jardines opinion for more detailed information.
Stay Safe!
