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If a Dog Sniff Around a Car is Not A Search, What About a Dog Sniff Around a Home?
The Volokh Conspiracy ^ | December 27, 2011 | Orin Kerr

Posted on 12/29/2011 8:27:34 PM PST by bamahead

SCOTUSblog flags a pending cert petition on an interesting Fourth Amendment question:

What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home?

The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.

--SNIP--

Everyone agrees that use of human senses can’t themselves violate the Fourth Amendment (eyesight, hearing, smelling, etc.), and the Court has held that the use of some sense-enhancing devices is okay (such as flashights) while the use of other sense-enhancing devices crosses the line and becomes a search (such as the use of thermal imaging devices on a home). In the case of sniffs around a car, reasonable people can disagree for a number of reasons on how dog sniffs should fit in this framework. But once the Court announces the rule for the common case of the sniff around a car, as it did in Caballes, some officer is going to try to use the rule to see if it applies elsewhere, as in a search around a home.

(Excerpt) Read more at volokh.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Front Page News; News/Current Events
KEYWORDS: 4thamendment; communistleos; donutwatch; govtabuse; illegalsearch; lping; policestate; tyranny; wosd
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Today it's for narcotics/drugs.

Tomorrow it's for illegal foodstuffs and contraband gunpowder.

What's next?

1 posted on 12/29/2011 8:27:36 PM PST by bamahead
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To: Abathar; Abcdefg; Abram; Abundy; albertp; Alexander Rubin; Allosaurs_r_us; amchugh; ...



Libertarian ping! Click here to get added or here to be removed or post a message here!

2 posted on 12/29/2011 8:28:38 PM PST by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: bamahead

Not a lawyer, but the car is on the street on public property, the house is set back from the public right of way on private property.

Not sure that will past legal muster, but it’s a place to start.


3 posted on 12/29/2011 8:30:13 PM PST by MediaMole
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To: bamahead

If the dog can smell it the dog can assert probable cause when the dog asks for a warrant.


4 posted on 12/29/2011 8:30:18 PM PST by muir_redwoods (No wonder this administration favors abortion; everything they have done is an abortion)
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To: bamahead
Gunpowder.

FreeRepublic residue.

5 posted on 12/29/2011 8:30:48 PM PST by Paladin2
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To: muir_redwoods

i can has cheezburger?


6 posted on 12/29/2011 8:31:37 PM PST by HiTech RedNeck (Sometimes progressives find their scripture in the penumbra of sacred bathroom stall writings (Tzar))
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To: bamahead; Joe 6-pack; SandRat

Doggie ping...


7 posted on 12/29/2011 8:33:47 PM PST by afraidfortherepublic
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To: bamahead
The dog can't apply for a warrant. The officer's interpretation is just that...interpretation. If the officer/dog pair can't be cross examined in court in front of a jury, anything the pair invents is simply crap. The officer needs to have a warrant that explicitly states what is sought. If he needs the dog's help as a "sensor", that is a different issue. The search doesn't start until the warrant is presented.
8 posted on 12/29/2011 8:38:42 PM PST by Myrddin
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To: MediaMole
Not sure that will past legal muster, but it’s a place to start.

Already decided

Police cannot go through a gate to plant a tracker on your car, but if it is in your driveway, that's OK.

Po' folk don't have as many gates...

...or as many rights.

9 posted on 12/29/2011 8:39:00 PM PST by null and void (Day 1073 of America's ObamaVacation from reality [Heroes aren't made, Frank, they're cornered...])
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To: bamahead
Today it's for narcotics/drugs.

Tomorrow it's for illegal foodstuffs and contraband gunpowder.

What's next?

Seditious Terrorist literature. CO2 causing appliances. Improper influences on a child.

10 posted on 12/29/2011 8:46:22 PM PST by decimon
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To: AnAmericanMother; Titan Magroyne; Badeye; apackof2; Shannon; SandRat; arbooz; potlatch; metmom; ...
WOOOF!

The Doggie Ping list is for FReepers who would like to be notified of threads relating to all things canid. If you would like to join the Doggie Ping Pack (or be unleashed from it), FReepmail joe 6-pack.

11 posted on 12/29/2011 8:51:10 PM PST by SandRat (Duty - Honor - Country! What else needs said?)
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To: AnAmericanMother; Titan Magroyne; Badeye; Shannon; SandRat; arbooz; potlatch; ...
WOOOF!

The Doggie Ping list is for FReepers who would like to be notified of threads relating to all things canid. If you would like to join the Doggie Ping Pack (or be unleashed from it), FReemail me.

12 posted on 12/29/2011 8:51:10 PM PST by Joe 6-pack (Que me amat, amet et canem. meum)
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To: muir_redwoods

I would like to bring up the point that a K-9 is considered to be a police officer in most jurisdictions.


13 posted on 12/29/2011 8:53:01 PM PST by Frank_2001
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To: Joe 6-pack; SandRat
Thursday, December 29, 2011 11:51:10 PM by SandRat

Thursday, December 29, 2011 11:51:10 PM by Joe 6-pack


Now that's a tag-team ping if I've ever seen one!
14 posted on 12/29/2011 8:54:15 PM PST by bamahead (Few men desire liberty; most men wish only for a just master. -- Sallust)
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To: Frank_2001

Unfortunately, he can’t speak;)


15 posted on 12/29/2011 8:54:29 PM PST by Frank_2001
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To: bamahead

We go WWE next month....maybe...lol


16 posted on 12/29/2011 8:56:40 PM PST by SandRat (Duty - Honor - Country! What else needs said?)
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To: null and void
I've got a fenced yard.

Let 'em send their dog in.


17 posted on 12/29/2011 8:57:14 PM PST by Salamander (I'm your pain.....)
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To: bamahead

No freedom. Get used to it guys.

Sometimes I feel like abandoning ship.


18 posted on 12/29/2011 9:00:27 PM PST by JosephMama (Who to choose, who to choose...)
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To: bamahead

This is nothing. Wait til they have technology to see everything inside your house from a plane flying overhead.


19 posted on 12/29/2011 9:01:27 PM PST by mamelukesabre
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To: Salamander

are you kidding? Havn’t you been paying attention? They shoot dogs on sight. Your dog is not a problem to them whatsoever.


20 posted on 12/29/2011 9:02:39 PM PST by mamelukesabre
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To: bamahead
Forget that.

...what about where dogs usually put their nose?

Cheers!

21 posted on 12/29/2011 9:08:38 PM PST by grey_whiskers (The opinions are solely those of the author and are subject to change without notice.)
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To: mamelukesabre

he means drug sniffing dawgs owned by the cops. and yes its a search. how they can argue that its not a search, well the logic escapes me.


22 posted on 12/29/2011 9:09:41 PM PST by RitchieAprile
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To: mamelukesabre

They’re not gonna shoot a dog in a fenced yard...especially if I’m out there with him.


23 posted on 12/29/2011 9:10:04 PM PST by Salamander (I'm your pain.....)
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To: bamahead
What's Next?

24 posted on 12/29/2011 9:13:51 PM PST by Repeal The 17th (We have met the enemy and he is us.)
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To: Frank_2001

===I would like to bring up the point that a K-9 is considered to be a police officer in most jurisdictions.===

So if one bites me is that police brutality?


25 posted on 12/29/2011 9:18:42 PM PST by running_dog_lackey
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To: bamahead

I’m sure many of the folks here would be all for this.

After all.... If you’ve done nothing wrong, you have nothing to hide. Right?


26 posted on 12/29/2011 9:47:17 PM PST by KoRn (Department of Homeland Security, Certified - "Right Wing Extremist")
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To: Frank_2001
I would like to bring up the point that a K-9 is considered to be a police officer in most jurisdictions.

...which is an indication of how stupid the laws have become in our country.

27 posted on 12/29/2011 9:53:34 PM PST by zeugma (Those of us who work for a living are outnumbered by those who vote for a living.)
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To: Salamander
"They’re not gonna shoot a dog in a fenced yard...especially if I’m out there with him."

LOL I hope you are wearing a vest. They'll shoot that poor dog whether you are with it or not. They'll hit it 3 times, out of 477 shots fired.

28 posted on 12/29/2011 9:53:39 PM PST by KoRn (Department of Homeland Security, Certified - "Right Wing Extremist")
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To: mamelukesabre

Which is why I have a pack of Labs 3 adults and now 9 puppies. It will take a few minutes shooting to get them all.


29 posted on 12/29/2011 10:11:55 PM PST by packrat35 (Heartless)
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To: Salamander

Cops have been doing it for the past 5 years on a weekly basis if not more.


30 posted on 12/29/2011 10:13:15 PM PST by packrat35 (Heartless)
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To: Repeal The 17th
And "Captain Kirk" keeps on bending the Fourth Amendment to the Prime Directive...
31 posted on 12/29/2011 10:32:34 PM PST by danielmryan
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To: bamahead

Just as with this move to corporate photo traffic enforcement.....if they watch you long enough they’ll find a traffic violation and a way to profit from it.

The goal is no longer about finding serious perps, but about profiting from the violation or the incarceration, or finding political dissidents who don’t like photo traffic cameras, or keeping society covered with a big net while everyone is screened.

When the concept of our leaders in declaring war went from defending us from actions, to preemption and conjecture based upon intel, the logical next step is to apply preemption rule to the general public and consider everyone of us as a potential threat worthy of questioning and screening. I don’t see Obama or Romney turning this trend around. Romney has been anointed by the media and GOP powers.


32 posted on 12/29/2011 10:36:20 PM PST by apoliticalone (Honest govt. that operates in the interest of US sovereignty and the people, not global $$$)
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To: Salamander

Unfortunately, dogs in fenced yards have been shot, even with their owners present.

Free Republic has several such incidents reported.

The frequency of such reported events is concerning, to say the least.

I hope that you never experience such a tragedy.


33 posted on 12/29/2011 11:06:53 PM PST by Altariel (`)
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To: bamahead

I am against the war on drugs and think we should just legalize them all and treat it as a health problem. Take all the crime and money out of it.

That said, I think the difference between drug sniffing around a car or a house comes down to this: are the police on public property or private property. The police are more than welcome to use their dog on public road outside the body of your car. As long as they are on public property, you have no right that prevents them.

As far as the home goes, as long as they do not trespass on your private property, your home is fair game. So if you are on 5 acres, they can’t get to your home. They have to stay outside your gate. If your condominium fronts right on a public alley, then the police are more than welcome to use their dog on that alley if they so chose.

That is the dividing line. The police cannot trespass on your private property, be it your home lot or inside your car. As long as they are walking on public ground, they are welcome to come as close to your car or your home as public ground can get them.


34 posted on 12/29/2011 11:28:13 PM PST by Freedom_Is_Not_Free (Repealing Obamacare is the ONLY GOAL.)
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Comment #35 Removed by Moderator

To: KoRn

Do you assume I’ll be out there buck naked and carrying a daisy?

We don’t even have cops come around here, if they can avoid it.

Hillbillies are “funny people” and the 99% of the cops are local boys and know that.

Sorry but I’m not gonna be cowed.

A hail of bullets or die in my sleep...I don’t care.


36 posted on 12/30/2011 2:43:40 AM PST by Salamander (I'm your pain.....)
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To: KoRn

I’m not for it.

Got no warrant?

Go to hell.


37 posted on 12/30/2011 2:45:45 AM PST by Salamander (I'm your pain.....)
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To: packrat35

I will sit here patiently and wait for you to find *one* incident where cops came out into the backwoods and shot some hillbilly’s dog.

It’s an urban problem and it’s gonna stay that way.


38 posted on 12/30/2011 2:48:59 AM PST by Salamander (I'm your pain.....)
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To: Altariel

Well aware of it and have been on every one of those threads.

It’s *always* some urban/suburban area.

It’s not gonna happen out here.


39 posted on 12/30/2011 2:51:30 AM PST by Salamander (I'm your pain.....)
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To: Salamander

Ruby Ridge?


40 posted on 12/30/2011 2:54:16 AM PST by aomagrat (Gun owners who vote for democrats are too stupid to own guns.)
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To: Salamander

You might be right. I just said that cops shoot dogs all the time and seem to enjoy doing so. I made no mention of rural vs urban.


41 posted on 12/30/2011 2:54:39 AM PST by packrat35 (Heartless)
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To: Freedom_Is_Not_Free

“That is the dividing line. The police cannot trespass on your private property, be it your home lot or inside your car. As long as they are walking on public ground, they are welcome to come as close to your car or your home as public ground can get them.”

God, how I love living up a dirt lane on a mountain 20 miles west of nowhere.

Soon as you turn off the paved county road, you are trespassing.

How cool is that?


42 posted on 12/30/2011 2:56:15 AM PST by Salamander (I'm your pain.....)
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To: Salamander

These people were on the highway and not in an urban area and Yep...cops kill their dog.

http://articles.cnn.com/2003-01-09/us/police.kill.dog_1_medium-size-brown-dog-officers-patrol-car?_s=PM:US


43 posted on 12/30/2011 2:56:54 AM PST by packrat35 (Heartless)
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To: aomagrat

Corrupt Feds attacking an armed compound.

Apples and oranges.

Try again.


44 posted on 12/30/2011 2:58:36 AM PST by Salamander (I'm your pain.....)
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To: Salamander

Plenty of dog killing stories here and all are not in the city

http://www.dogmurderers.com/


45 posted on 12/30/2011 2:59:46 AM PST by packrat35 (Heartless)
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To: packrat35

“they pleaded with officers to close the doors of their car so their two dogs would not escape, but the officers did not heed them.”

My dogs are always buckled in with seat belt harnesses for their own safety in case of an accident and are incapable of getting out of the car during a traffic stop.

Try again.


46 posted on 12/30/2011 3:01:59 AM PST by Salamander (I'm your pain.....)
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To: packrat35

Yes, it’s apparently becoming a “sport” and it disgusts me like nothing else.

I used to be a stalwart defender of LEOs because most of my family have been involved in law enforcement of one kind or another.

-None- of them would shoot somebody’s dog.


47 posted on 12/30/2011 3:14:46 AM PST by Salamander (I'm your pain.....)
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To: packrat35

Not seeing any mention of Appalachia.


48 posted on 12/30/2011 3:19:01 AM PST by Salamander (I'm your pain.....)
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To: bamahead
*** Tomorrow it's for .... contraband gunpowder. ***

Pretty sure LEOs already do that.

Most Pipe Bombs, aka: IEDs, are made with gunpowder (or black powder). And if you're a 'person of interest aka: suspect, like in some car bombing, dogs will be at your house at some time. Warrant or no warrant, they'll be sniffing around.

49 posted on 12/30/2011 5:05:46 AM PST by Condor51 (Yo Hoffa, so you want to 'take out conservatives'. Well okay Jr - I'm your Huckleberry)
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To: bamahead; sickoflibs
police might do this to see if the dog will alert

so, on fidos 'word' we flip the presumption of innocence on its head...

public street or private home, its wrong to allow Rights to be diminished because a dog smells a BLT, OR his boss has trained him to 'alert' when desired...

dogs are amazing animals, and loyal...leos, well, theyve abused what little authority that has been vested in em long enough for me to say that they must 'prove' the ability to read the dogs mind...

50 posted on 12/30/2011 6:10:40 AM PST by Gilbo_3 (Gov is not reason; not eloquent; its force.Like fire,a dangerous servant & master. George Washington)
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