Charles Doyle
Senior Specialist in American Public Law
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. Amend. IV.
This term, the Supreme Court decided whether (1) deploying a drug-detecting dog at the front door of a house qualifies as a Fourth Amendment search (Florida v. Jardines); (2) the positive reaction of a trained, drug-detecting dog constitutes probable cause per se (Florida v. Harris); and (3) the rationale which permits the warrantless, suspicionless detention of individuals found in a place covered by a search warrant also permits the warrantless, suspicionless off-site apprehension and return of individuals who have recently left a place covered by a search warrant (Bailey v. United States).
The Supreme Court has said in the past that walking a drug-detecting dog around a car pulled over on the highway or around luggage in an airport is not a Fourth Amendment search. The Court in Jardines noted that those cases were decided under the “expectation of privacy” rationale. Under the alternative “property intrusion” rationale, a Fourth Amendment search occurred when police used a trained dog to test for the smell of marijuana on Jardines’s porch.
Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in the place to be searched. The Supreme Court has held that informers’ tips, used to establish probable cause, need not be subjected to uniform, rigid reliability standards. The Florida Supreme Court in Harris held that the prosecution had not established the existence of probable cause because it had failed to satisfy court-mandated standards for the reliability of drugdetecting dogs and their handlers. The U.S. Supreme Court declared in Harris that the Florida court was in error for failure to apply the traditional common sense, totality-of-the-circumstances standard.
In order to minimize the risk of harm to the officers, the destruction of evidence, or the flight of suspects, officers executing a search warrant for contraband may detain individuals found on the premises to be searched. They may do so though they have no probable cause to arrest the individuals. The Supreme Court in Bailey held that this exception to the Fourth Amendment’s usual requirements does not permit officers to allow individuals to leave the premises to be searched before apprehending them off-site and returning them to the place being searched.
Date of Report: April 3, 2013
Number of Pages: 16
Order Number: R42697
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