Searches and the Fourth Amendment

Criminal Procedure Professor Sack Roger Williams University School of Law Spring 2014

SEARCHES AND THE FOURTH AMENDMENT

The Fourth Amendment

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 person or things to be seized.

What is a “search”?

What is a “reasonable” search?

What is a “trespass”?

What is an “expectation of privacy”?

1 Franky Sniffs Something Funny

Police received an anonymous “crime stoppers” tip that a home at 153 Dunster Street was being used to grow marijuana. About a month later, Police Officers Pam and Bart drove to 153 Dunster Street. Officer Bart was from the Police K-9 Unit, and was accompanied by his dog Franky, who was trained in detection of illegal drugs, including marijuana. Dogs have a sense of smell that is far superior to humans, and can detect things that are not possible for humans to smell. In addition, drug-detection dogs such as Franky are trained to alert only if they smell the illegal substance. When they arrived at the address, Officer Pam stayed on the street in front of the home, while Officer Bart and Franky walked up the front path and stopped on the steps at the house’s front door.

As Franky arrived at the front door, he alerted to the smell of illegal narcotics emanating from the house. Officer Bart told Officer Pam that Franky had alerted, and Officer Pam then approached the front door. She noticed that the air conditioning unit was running constantly without ever switching off, though it was not warm outside. She knew from her experience in drug investigations that high intensity light bulbs frequently are used to grow marijuana indoors; the bulbs create heat which can cause air conditioning units to run continuously.

Officer Pam prepared an affidavit and applied for a search warrant of the home, which was issued. Police conducted a search of the home, and discovered a lab where marijuana was being grown. They arrested the owner of the home, Larry, for the drug cultivation and possession.

Larry’s defense lawyer has moved to suppress the evidence of the marijuana found in the home, arguing that the search warrant was based on information from Franky’s sniff, which was obtained in violation of the Fourth Amendment. The defense argues that Franky’s sniff at the front door was a “search” which was not supported by probable cause and so was not reasonable. Therefore, the evidence of the marijuana should not be able to be used against him at trial. The prosecutor argues that Franky’s sniff was not a “search” under the Fourth Amendment, and so the police needed no probable cause or any other type of suspicion before using Franky to sniff at the front door of the house. Therefore, the information obtained from his alert was legitimately used to support the warrant and the warrant and search of the home that followed were all legal under the Fourth Amendment.

You are the law clerk to Justice Scalia-Ginsburg. What should she decide?

Questions

1. Do you think that Franky’s sniff is a “search” under the Fourth Amendment?

2. Do you think it would make any difference if Franky was sniffing a car on the street, as opposed to odors from a home?

3. What if instead of using Franky, the police had utilized some specialized high-tech camera that was not publically available, which could see through walls, and was able to see the marijuana inside the home? Would use of this camera be more likely to be a search than the use of Franky? 2