Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Preliminary Hearing, No Probable Cause Felony Theft

Posted on April 5, 2013

In a U.S. Supreme Court Criminal Law Case on March 26, 2013 the highest court of our land found a dog drug sniff of a person’s home from the porch of that residence that indicated the presence of contraband was an illegal search under the 4th Amendment to the United States Constitution and because that evidence was unlawfully used to obtain a warrant for the house the evidence secured after execution of the warrant should be suppressed. Justice Scalia wrote the opinion for the majority of justices in the case of Florida v. Jardines.

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. the Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause. the U.S. Supreme Court took the case and on review held the investigation of Jardines’ home was a “search” within the meaning of the Fourth Amendment.

Within its Criminal Law ruling the Court held the following premises to be true: (a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” (b) at the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” the area “immediately surrounding and associated with the home”-the curtilage-is “part of the home itself for Fourth Amendment purposes.” the officers entered the curtilage here: the front porch is the classic exemplar of an area “to which the activity of home life extends.” (c) the officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares, but “no man can set his foot upon his neighbour’s close without his leave,” a police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search.