Today, the U.S. Supreme Court limited the ability of police to use a dog to sniff around
the outside of a home for illegal drugs that might be inside. By a 5-4 vote, the court in
Florida v. Jarnines held a government's use of trained police dogs to investigate a home
and its immediate surroundings was a "search" subject to the limitations of the Fourth
Amendment of the Constitution. This decision could make it harder for police to use
trained dogs to detect drugs without first obtaining warrants. The Court’s opinion
resolved the Fourth Amendment question solely on property rights grounds, holding that
bringing a dog to conduct a forensic search on someone’s porch constitutes a trespass at
common law. The Court’s majority opinion found it unnecessary to decide whether the
dog sniff also violated the individual’s reasonable expectation of privacy. Thus, under
this decision, when the police trespass onto private property to conduct a search, the
Fourth Amendment applies regardless of whether the trespass also invades someone’s
reasonable expectation of privacy.
In 2009, the Indiana Court of Appeals likewise held that the Indiana Constitution requires
reasonable suspicion to conduct a dog sniff of a private residence. See
Hoop v. State, 909
N.E.2d 463 (Ind.Ct.App. 2009).
While the general public, including the police, generally have the right to approach a
house’s front door (for example, to leave a flier or ask the occupant to answer a question),
that license does not include an invitation to bring a dog onto the porch to search for
drugs. Furthermore, although a police officer’s initial entry onto an individual’s property
may be permissible, they must limit their visit to areas that can reasonably be viewed
as open to them for legitimate police business and they cannot remain on a person’s
property after it becomes clear to them that the purpose for their visit cannot be properly
fulfilled. See, for example, Divello v. State, 782 N.E.2d 433 (Ind.Ct.App. 2003). It has
been held to be unreasonable under the Indiana Constitution for police to tour a person’s
property to see if anyone was home after no one responded to their knocking on the front
door. Shultz v. State, 742 N.E.2d 961 (Ind.Ct.App. 2001).
But dog alerts on vehicles are not given as much protection
It is well-settled that people in their automobiles have a reduced expectation of privacy,
thus a dog sniff conducted during a lawful traffic stop does not violate the Fourth
Amendment or the Indiana Constitution. See
Illinois v. Caballes, 543 U.S. 405, 125
S.Ct. 834 (2005);
Gibson v. State, 886 N.E.2d 639 (Ind.Ct.App. 2008) (art. 1 § 11). Last
month, the U.S. Supreme Court in
Florida v. Harris unanimously ruled that drug sniffing
dogs can provide the probable cause needed to allow a police officer to conduct a search
of the vehicle, and that records of the alerting dog's field performance may sometimes be
relevant but should be considered in the context of all evidence related to probable cause.
However, the dog sniff may not significantly increase the duration of traffic stops. The
State has the burden to show that the time for the lawful traffic stop was not increased
due to the canine sweep. See, for example,
Bush v. State, 925 N.E.2d 787 (Ind.Ct.App.
2010). Furthermore, the Indiana Court of Appeals has held that police may not detain a
passenger in order to get a drug-sniffing dog without reasonable suspicion. Regardless
of whether police officers had reasonable suspicion to stop the motorist in the first place,
if the reasonable suspicion has dissipated, further detention is illegal. See, e.g., Cannon v.
State, 722 N.E.2d 881 (Ind.Ct.App. 2000).
