Police Need Probable Cause for Drug Dog Sniff Test of a Residence

The Florida Supreme Court recently decided a marijuana case that discussed the search and seizure issues involved with the police walking a drug dog around the outside of a person’s home to smell for marijuana or other drugs. The police and the state argued that walking a drug dog around the front of a person’s home without going inside is not considered a search pursuant to search and seizure constitutional law because there was no intrusion into the person’s home. They also argued that if it was considered a search, the police needed something less than probable cause to believe drugs were inside the home to validate the search. The defendant, who was charged with growing marijuana plants in his home, argued that it should be considered a search when police officers and a drug dog come onto his private property with the intention of smelling for illegal drugs.

In this case, police officers received an anonymous tip that the defendant was growing marijuana in his home. The police did not do anything to verify the accuracy of this tip with corroborating facts or observations. Instead, the police walked onto the property with a drug dog and conducted a sniff test right outside of the front door. The drug dog alerted to drugs inside, and the police officer indicated he smelled marijuana as well. Based on this information, the police obtained a search warrant for the home. Inside, they found marijuana plants and marijuana growing equipment. The defendant was arrested for cultivating marijuana.

The criminal defense lawyer for the defendant moved to suppress the evidence of the marijuana plants and growing equipment arguing that the defendant’s constitutional right to be free from unreasonable searches and seizures was violated when the police and the drug dog walked onto his property to smell the area near his front door without probable cause.

The state cited other cases where a drug dog sniff test is not considered a search. For instance, when a person is stopped in his/her vehicle for a legitimate traffic violation, the police can use a drug dog to smell the outside of the vehicle if the drug dog is already at the scene or is brought to the scene fairly quickly. Additionally, the police are allowed to use drug dogs to smell the outside of a person’s luggage at the airport without probable cause or a search warrant.

However, the Florida Supreme Court agreed with the criminal defense attorney and found the situation involving a person’s home to be different from the car or luggage examples. A person’s home is given the greatest protection under the Fourth Amendment. When the police go to a person’s home in large numbers and start walking a drug dog around the exterior, this has the tendency to bring public humiliation upon the resident. These were two of the factors leading the Court to decide that this kind of police encounter at a person’s home is a search and requires probable cause. As a result, if the police want to go onto a person’s private property with a drug dog to sniff the home, they will likely need probable cause to do it. An anonymous or otherwise uncorroborated tip that illegal drugs or other criminal activity is inside will not be sufficient.

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