Salt Lake City Drug Defense Lawyer Praises U.S. Supreme Court Ruling on Drug-Dog Sniffing Case; Says Decision Protects Rights of the Accused

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In Florida v. Jardines, the U.S. Supreme Court ruled this week that bringing a drug-sniffing dog onto a suspect's front porch and using a "signal" from the dog to collect evidence constituted a search under the Fourth Amendment to the U.S. Constitution. Salt Lake City drug defense lawyer Darren Levitt says the ruling protects the rights of the accused against unreasonable searches and seizures.

"The Fourth Amendment limits the ability of the government to encroach upon the home, and I am glad the Supreme Court recognized that long-standing protection," said Darren Levitt, Salt Lake City drug defense lawyer.

The U.S. Supreme Court handed down its ruling Tuesday in Florida v. Jardines (Docket No. 11-564), holding that bringing a drug-sniffing dog to the door to detect whether there might be drugs inside constitutes a "search" and is therefore limited by the Fourth Amendment to the U.S. Constitution. Salt Lake City drug defense lawyer Darren Levitt said the Court was correct, though narrow, in its ruling, and that the decision will protect the rights of the accused in Salt Lake City, greater Utah, and the nation as a whole.

"This is a decision that protects property rights and ensures that people have some level of security from police intrusion in their own home," Levitt said. "The Fourth Amendment limits the ability of the government to encroach upon the home, and I am glad the Supreme Court recognized that long-standing protection."

According to Court documents in the case, police suspicion that the defendant was growing marijuana inside his house was based on a tip, though the tip was not verified and therefore not reliable. Police made no attempt to obtain a search warrant that would have permitted a legal search of the defendant’s house. While surveying the house from the outside, police observed that the blinds were lowered and the air conditioner was continually running, both cited as possible indicators of a marijuana grow-house.

Police then brought a drug-sniffing dog named “Franky” to the front porch, according to Court documents. Franky circled and sat down, a "signal" that he smelled marijuana. Police were later able to obtain a search warrant for the house based on Franky’s indication.

In the opinion by Justice Scalia and joined by Justices Thomas, Ginsburg, Sotomayor and Kagan, the act of the police officer entering the front porch, or “curtilage”, of the house with the dog constituted a search under the Fourth Amendment. The Justices based their reasoning on the fact that at common law such action would have constituted trespassing. The opinion notes that at common law a person may walk up to a house and knock, however, that does not include an invitation to walk up with a dog who will sniff and alert to the possibility of drugs.

The opinion is narrow and not as encompassing as it likely should have been, Levitt said. In a concurring opinion written by Justice Kagan, she states that she would have held that the sniff was a search because a person has a reasonable expectation of privacy that is violated by the sniff of the dog, which can perceive things with smell that humans cannot observe with just their senses. However, that position was not enough to gain a majority of the Court.

"Kagan's opinion would have done more to protect the privacy of our nation’s citizens, and would have been more in line with the majority of Fourth Amendment case law that is based in the question of whether or not a reasonable expectation of privacy exists," said the Salt Lake City drug defense lawyer. "At this same time, this ruling prevents a hypothetical situation in which police randomly approach a house or go door-to-door with a dog in search of drugs."

The decision comes in the wake of a disappointing drug-sniffing dog ruling in February in Florida v. Harris (Docket No. 11-817), Levitt said. In that decision, the Court unanimously ruled that a dog's "alert" was sufficient to lead to a search of a vehicle if the dog was sufficiently trained. In the opinion, the Court overturned the Florida Supreme Court’s holding that a checklist of qualifications should be presented before a court could find that a roadside dog-sniff alert constituted probable cause.

"I can't put a dog on the stand and cross-examine it," Levitt said. "The widespread use of drug dog alerts to constitute probable cause means that the constitution’s confrontation clause guarantee the accused’s right to confront and cross examine their accusers is severely hampered. In light of that, the Court should have upheld the Florida Supreme Court’s decision requiring the state to present evidence beyond the fact that a dog passed it’s training class before that dog’s alert to drugs can form the basis of probable cause to effect a search and invade a citizen’s reasonable expectation of privacy."

Darren Levitt, of Levitt Legal, PLLC, is a Salt Lake City criminal defense attorney who represents those facing drug charges, including possession, possession with intent to distribute, manufacturing and trafficking.

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