Sniffing out our
Fourth Amendment rights
BY JENNIFER GROSCUP, JD, PHD • SCRIPPS COLLEGE, AND LORI HOETGER • UNIVERSITY OF NEBRASKA-LINCOLN
Does a police dog sniffing for drugs at a suspect’s front door constitute an illegal search? That’s a question that the U.S.
Supreme Court will consider in the case of Florida v. Jardines.
The Fourth Amendment of the U.S. Constitution protects
against unreasonable searches of people and property. A
“search” occurs when the government intrudes upon an
individual’s reasonable expectation of privacy. To have a
reasonable expectation of privacy, the individual must have
actually expected privacy and that expectation must be one
that society recognizes as reasonable. A government search is
unreasonable if it is conducted without a search warrant that is
supported by probable cause of wrongdoing.
In Florida v. Jardines, police received an anonymous tip that
marijuana was growing at Joelis Jardines’s home. To investigate,
law enforcement went to the house to observe it with officers
from several law enforcement agencies and multiple vehicles, a
process that took several hours. During that time, a trained drug-sniffing dog and his handler approached the front door, and the
dog signaled the presence of narcotics in the home. Based in
large part on the dog’s alert, law enforcement obtained a search
warrant for the house, found marijuana and arrested Jardines.
The Supreme Court now must decide whether or not the dog
sniff required a search warrant supported by probable cause.
The court previously has considered whether dog sniffs
constitute searches in a few situations that did not involve
people’s homes. These cases provide some insight into the issues
the court may consider in deciding Jardines. For example, the
court determined that dog sniffs do not require warrants when
the target is personal luggage in an airport (United States v.
Place, 1983) or is the outside of a car either during a legal traffic
stop (Illinois v. Cabelles, 2005) or at a roadside drug checkpoint
(City of Indianapolis v. Edmond, 2000). Across these cases,
the court reasoned that the dog sniffs did not invade privacy
because they only revealed the presence of contraband, and
individuals do not have a legitimate expectation of privacy in
the possession of illegal material. The sniffs did not intrude
on non-contraband private property or activities. The court
considered the level of embarrassment that could result from
the dog sniff, reasoning that a sniff may be more intrusive if
the sniffed person is identifiable and publically humiliated.
The court also considered whether allowing dog sniffs in these
circumstances would result in arbitrary or discriminatory
searches. These and other factors may play a role in the court’s
reasoning about Jardines. The court also is likely to consider the
sacrosanct nature of the home under the Fourth Amendment.
Psychological research can help inform courts’ reasoning
on these issues. For example, research could investigate
whether people have a reasonable expectation of privacy at
their doorsteps; whether people have a different expectation
of privacy for their doorsteps that would distinguish this
Psychological research can help
inform courts on whether people have
a reasonable expectation of privacy
at their doorsteps and whether people
would be embarrassed by a dog-sniffing procedure.
case from past cases; whether people would be embarrassed
by a dog-sniffing procedure like the one used in this case;
and whether it is likely that such a procedure would be used
arbitrarily. Some relevant research found that people rank a
dog sniffing a person’s body as just as intrusive as a police frisk,
which indicates that warrantless dog sniffs may be perceived
as unreasonable (Blumenthal, Adya, & Mogle, 2009; Slobogin
& Schumacher, 1993). However, research has not investigated
perceptions of dog sniffs of property or homes. Other research
indicates that when the decision to search is discretionary, there
is a potential for a discriminatory search (Rojek, Rosenfeld &
Decker, 2004). However, more research is needed to identify
potential biases and stereotypes that may lead to discriminatory
application of searches and seizures. Further research on these
issues may help judges evaluate the validity of dog sniffs and
other searches. n
“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues.)