The trial judge agreed and threw out the evidence seized in the search, but that was reversed by an intermediate appeals court. In April a divided Florida Supreme Court sided with the original judge.
The Supreme Court’s decision upholds that ruling.
“A drug detection dog is a specialized device for discovering objects not in plain view (or plain smell),” Kagan wrote in a concurring opinion. “That device here was aimed at a home — the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the court holds today. Was it also an invasion of privacy? Yes, that as well.”
The four justices who dissented were Chief Justice John Roberts, Justice Stephen Breyer, Justice Anthony Kennedy and Justice Samuel Alito.
It’s not trespassing when a mail carrier comes on a porch for a brief period, Alito said. And that includes “police officers who wish to gather evidence against an occupant,” Alito said. “According to the court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of the respondent’s house by his dog, Franky. Where is the authority evidencing such a rule?”
Alito also said that the court’s ruling stretches expectations of privacy too far.
“A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectable by a dog, cannot be smelled by a human.”