K9 searches to DNA samples"
Recent Supreme Court Cases
By: Zachary Miller and Randy Means
Florida v. Jardines, 569 U.S. (2013)
from the Miami-Dade Police Department and the DEA received a tip that Joelis
Jardines was growing marijuana inside his home. After a short period of
surveillance, two Miami-Dade officers approached the front door of Jardines’
house with a drug detection canine. At this point, the officers did not have
probable cause. As they approached the front porch, the dog began to alert to
the presence of narcotics and began to focus on the area where the scent was
strongest—the front door. Based on the tip and dog alert, a search warrant was obtained
and executed later that day.
was home during the search warrant execution and was arrested and charged with
trafficking marijuana. Prior to his trial, Jardines argued that the use of the
scent detection canine near the front door of his single-family home was a
search without probable cause or a warrant and that the resulting search
warrant and evidence should be suppressed.
trial court agreed, ruling that the use of the canine was a search under the
Fourth Amendment. Since the State had conceded that the officers lacked
probable cause at the time the dog was taken to the front door, the trial court
held the search to be unreasonable. All downstream evidence was suppressed and
the government appealed all the way to the United States Supreme Court.
a 5-4 decision, the U.S. Supreme Court held that the use of the drug detection
canine in this case was indeed a search under the Fourth Amendment. The Court
followed closely the reasoning it used last term in United States v. Jones, 565 U.S. (2012) in which the Court held
that the attachment of a GPS device to a vehicle was a search under the “physical
intrusion upon a constitutionally protected area” prong of the Fourth Amendment
definition of a search.
Jardines, officers physically intruded
upon another constitutionally protected area—the curtilage of the home—with the
intent to gather information. And, just as in Jones, the Court declined to address the second prong of the search
inquiry—whether there was an intrusion upon a reasonable expectation of privacy.
In both Jones and Jardines, the Court did not rule on the
reasonableness of the warrantless law enforcement action, deferring that
judgment instead to the lower courts.
case does not change the longstanding understanding that a law enforcement officer
may lawfully approach a residence by using a common pathway to the front door
in order to speak with an occupant and the officer need not have any particular
factual justification for doing so. The
reasoning is simple—any non-law enforcement individual may lawfully do the same
thing. It is only when a law enforcement
officer brings with him a specialized investigative tool—i.e., a drug detection
canine—that the officer has intruded on Fourth Amendment interests.
Missouri v. McNeely, 569 U.S. (2013)
McNeely was stopped for a traffic offense and subsequently arrested for driving
under the influence of alcohol. He refused to submit to a mandatory breath test
under state law. The arresting officer transported McNeely to a local hospital
where McNeely refused to submit to a blood test. The officer then ordered the
nurse to draw blood from McNeely and his blood was taken against his will. There was no search warrant.
his trial, McNeely argued that the warrantless, non-consensual blood draw was
an unreasonable search under the Fourth Amendment. The State countered with the
argument that the blood draw was a reasonable search under the exigent
circumstances exception to the warrant requirement. The exigency, according to
the State, was the fact that critical evidence of the crime, the concentration
of alcohol in McNeely’s blood, was dissipating with the passage of time.
a 9-0 opinion, the U.S. Supreme Court held that in a “routine DWI
investigation” the mere fact that blood alcohol concentration evidence is being
lost to the passage of time does not give rise to an exigency that excuses the
lack of a search warrant. The State had based its argument for a per se rule
allowing warrantless blood draws in all DWI cases on the Court’s holding in Schmerber v. California, 384 U.S. 757
(1966). In Schmerber, the Court
upheld a warrantless blood draw in a DWI case where the arrestee had been
transported to the hospital due to injuries that he sustained in an automobile
were three factors that the Court cited as relevant in determining that exigent
circumstances existed in Schmerber:
1) the arrestee was transported to the hospital due to injuries he received; 2)
the time that it took for the police to investigate at the scene of the
accident; and 3) the natural dissipation of blood alcohol concentration
evidence with the passage of time.
McNeely, the only factor was the loss of evidence dilemma. Although McNeely was
at the hospital as the arrestee was in Schmerber,
McNeely was taken there by the police for the sole purpose of drawing his blood
after he refused to submit to a breath test. The Court in McNeely also referenced the technological innovations that have
occurred in the years since Schmerber
that allow the police in many states to obtain search warrants electronically
without having to appear in person before a magistrate.
Maryland v. King, 569 U.S. (2013)
King was arrested on felony assault charges and, as part of the routine booking
procedure for serious offenses under Maryland
law, a DNA sample was taken from him using a buccal swab. This DNA sample was
later uploaded into a database where a match was obtained from an unsolved rape
case. At his trial for the rape, King argued that the DNA sample taken as part
of the booking procedure for the assault arrest was an unreasonable search under
the Fourth Amendment. The trial court disagreed and he was convicted of the
a 5-4 opinion, the U.S. Supreme Court held that, although the taking of a DNA
sample by means of a buccal swab is undoubtedly a Fourth Amendment search, it
was nonetheless reasonable as part of the routine booking procedure following
arrest for a serious offense. The Court reasoned that the taking of such a
sample is minimally invasive and compared it to other routine booking
procedures such as fingerprinting and photographing.
analysis, according to the Court, serves a legitimate law enforcement interest—the
need to accurately identify an arrestee and the arrestee’s criminal history—and
this need outweighs an arrestee’s reasonable expectation of privacy regarding
this identifying information. The Supreme Court placed emphasis on the fact
that King was arrested for a serious offense and stated so directly in the
holding of the case. It is highly unlikely that the Court would be willing to
extend this approval of DNA sampling procedure to arrests for minor offenses.
Court also noted that the DNA sampling was done pursuant to a state law that
specified the types of offenses that qualified for sampling, that the law only
allowed the DNA information to be uploaded to the database after arraignment
and the law required the destruction of the sample and its removal from the
database if the defendant is not convicted. The Court’s decision here would
probably not extend to DNA sampling and analysis in a jurisdiction without
Randy Means is a partner in Thomas &
Means, a law firm specializing entirely in police operations and
administration. He has served the national law enforcement community full time
for more than 30 years and is the author of “The Law of Policing,” which is
available at LRIS.com. He can be reached directly at firstname.lastname@example.org.
Zachary Miller is a Virginia police
officer who teaches in-service law classes for his own agency and
basic-training law classes for a regional police academy. Officer Miller also
provides research assistance to author Randy Means, an attorney and 33-year
police legal advisor who provides training and consulting services to law
enforcement agencies nationwide.