A recent case from the Third District Court of Appeals (Florida) created an interesting issue on the use of dog sniffs without a warrant.
The Fourth District Court of Appeals has previously ruled that, in certain situations, a dog sniff is a search and therefore a warrant is necessary.
The Third District disagreed and certified a conflict to the Florida Supreme Court.
This issue is this: When a police officer receives an anonymous tip, can he take a drug sniffing dog to the address of the tip and use that dog to search for drugs? Does that dog sniff infringe on a person's right to privacy? Previously, the United States Supreme Court has ruled in Kyllo that "sense-enhancing" technology cannot be arbitrarily used to search for drugs.
In Kyllo, police would use infra-red, heat sensing technology to scan houses in a particular neighborhood.
If the sensor recorded a elevated heat source emanating from within the house, the police would conduct further investigation as to a possible marijuana grow-house.
The lights used in grow-houses heat up to well above 100 degree Fahrenheit, and would thus be detectable by the heat sensing technology.
The U.
S.
Supreme Court struck down this practice by law enforcement as an improper encroachment on the privacy rights of US citizens.
Turning to a dog sniff: Is this like the heat sensing technology as used in Kyllo? The Fourth District said "yes," a dog sniff is a search (thereby triggering 4th Amendment protections) because a dog, like a thermal imager, is sense-enhancing technology that intrudes into the constitutionally-protected area of the defendant's house.
Not so, says the Third District.
A canine sniff is not a Fourth Amendment search.
A dog's nose is not a "device," nor is it sense-enhancing technology.
A dog alerts to illegal activity only, so if the dog is otherwise legally present at the house and alerts to drugs, then the sniff is not a search.
The Third District realized that this holding directly conflicts with the Fourth District's holding in the above-discussed case.
The Florida Supreme Court will hear arguments for both sides and decide which, if any, of the two courts is correct.