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Florida Appeals Court
Restricts Warrantless Drug Dog Searches
Search
and Seizure:
2/24/06
http://stopthedrugwar.org/chronicle/424/dogsearches.shtml
The Florida 4th Circuit Court of
Appeals in West Palm Beach has ruled that police must obtain a warrant before
drug-sniffing dogs are allowed to search private property. In a
February 15 opinion in the case of a Hollywood man charged with drug
offenses after police without a warrant used a drug dog to sniff his front door,
the appeals court refused to overturn a lower court ruling that found the
warrantless search unconstitutional.
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Rockland
County, Missouri,
drug dog demonstration |
In April 2002, police received an
anonymous tip that James Rabb was growing marijuana in his home. They surveilled
his home, then followed him when he drove away in his car and pulled him over on
a pretext (improper lane change, going 40 in a 55 mph zone), finding a joint and
two books and a video about marijuana cultivation in his car. When Rabb
exercised his 5th Amendment right to silence, police arrested him for marijuana
possession and returned to his home. They brought in a drug dog, who sniffed at
the front door and alerted, signaling the presence of marijuana. Police then
used the drug dog alert as well as the seized joint and grow literature as the
basis for a search warrant that uncovered marijuana under cultivation.
At trial, Rabb and his attorney,
Charles Wender, argued that the evidence from the home search should be thrown
out because police had violated Rabb's Fourth Amendment right against
unreasonable search and seizure. Broward Circuit Court Judge Ilona Holmes
agreed, throwing out the evidence.
"It would have opened the door to
terrible civil liberties violations," Wender told the Miami Herald.
The state appealed, citing the US
Supreme Court decision in Cabello vs. Illinois, where the high court held that a
drug dog search is not a search. But appeals court Judge Bobby Gunther, joined
by Judge Gary Farmer, held that Cabello did not apply to a home search because
such searches must be held to higher standards than vehicle searches.
"A firm line remains at [a
home's] entrance blocking the noses of dogs from sniffing government's way into
the intimate details of an individual's life," wrote Gunther. "If that
line should crumble, one can only fear where future lines will be drawn and
where sniffing dogs, or even more intrusive and disturbing sensory-enhancing
methods, will be seen next."
No word yet on whether the state of
Florida will appeal the decision.
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