UNIVERSITY OF THE DISTRICT OF - UDC Law Review

obtained through the search is not the feared injury. Rather, it is the fact that law enforcement endeavored to obtain the information
from inside the house at all, or in this case, the fact that a dog’s sense of smell crossed the “firm line” of Fourth Amendment
protection at the door of Rabb’s house. Because the smell of marijuana had its source in Rabb’s house, it was an “intimate detail”
of that house, no less so than the ambient temperature inside Kyllo’s house. Until the United States Supreme Court indicates
otherwise, therefore, we are bound to conclude that the use of a dog sniff to detect contraband inside a house does not pass
constitutional muster. The dog sniff at the house in this case constitutes an illegal search.
Rabb, 920 So.2d at 1184.
3 We note that the First District Court of Appeal in Stabler v. State, 990 So.2d 1258 (Fla. 1st DCA 2008), also certified conflict with
Rabb. In Stabler, the district court held that a dog “sniff test” conducted at an apartment door that opens onto a common area
accessible to the general public does not constitute a “search” for Fourth Amendment purposes. As noted herein, Stabler is
distinguishable from Rabb in that Stabler involved a “sniff test” conducted at an apartment or other temporary dwelling, not a
“sniff test” conducted at a private residence. See infra note 10.
4 The comparable provision of the Florida Constitution is contained in article I, section 12, which further provides: “This right shall
be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme
Court.” Art. I, § 12, Fla. Const.
5 Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (addressing the issue of whether police, without a
warrant, can listen to and record one end of a telephone conversation in a public phone booth via an electronic listening and
recording device attached to the outside surface of the booth).
6 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (addressing the issue of whether police, based on an evidentiary
showing of less than probable cause, can temporarily seize and search a person).
7 There is little doubt, however, that a dragnet-style sweep of an entire residential neighborhood or of a multi-unit residential
dwelling, conducted without any individualized suspicion of wrongdoing, would be impermissible. Cf. City of Indianapolis v.
Edmond, 531 U.S. at 41, 121 S.Ct. 447 (“We have never approved a checkpoint program whose primary purpose was to detect
evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general
rule that a seizure must be accompanied by some measure of individualized suspicion.”).
8 Compare State v. Rabb, 920 So.2d 1175 (Fla. 4th DCA 2006) (holding that a dog “sniff test” outside a private residence is a
“search” within the meaning of the Fourth Amendment); with People v. Jones, 279 Mich.App. 86, 755 N.W.2d 224 (2008)
(holding that a dog “sniff test” outside a private residence is not a “search” within the meaning of the Fourth Amendment); and
Porter v. State, 93 S.W.3d 342 (Tex.App.2002) (holding that a dog “sniff test” outside a private residence is not a “search” within
the meaning of the Fourth Amendment); and Rodriguez v. State, 106 S.W.3d 224 (Tex.App.2003) (holding that a dog “sniff test”
outside a private residence is not a “search” within the meaning of the Fourth Amendment).
9 See United States v. Tarazon–Silva, 960 F.Supp. 1152 (W.D.Tex.1997) (holding that a dog “sniff test” outside a private residence
is not a “search” within the meaning of the Fourth Amendment).
10 Compare State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999) (holding that a dog “sniff test” outside an apartment is a “search”
within the meaning of the Fourth Amendment); with Fitzgerald v. State, 384 Md. 484, 864 A.2d 1006 (2004) (holding that a dog
“sniff test” outside an apartment is not a “search” within the meaning of the Fourth Amendment); and Stabler v. State, 990 So.2d
1258 (Fla. 1st DCA 2008) (holding that a dog “sniff test” outside an apartment is not a “search” within the meaning of the Fourth
Amendment); and Nelson v. State, 867 So.2d 534 (Fla. 5th DCA 2004) (indicating that a dog “sniff test” outside a hotel room is
not a “search” within the meaning of the Fourth Amendment); and People v. Dunn, 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d
1054 (1990) (holding that a dog “sniff test” outside an apartment is not a “search” within the meaning of the Fourth Amendment,
but is a search within the meaning of the state constitution).
11 Compare United States v. Whitehead, 849 F.2d 849 (4th Cir.1988) (holding that a dog “sniff test” outside a railway sleeper
compartment is a “search” within the meaning of the Fourth Amendment); and United States v. Thomas, 757 F.2d 1359 (2d
Cir.1985) (holding that a dog “sniff test” outside an apartment is a “search” within the meaning of the Fourth Amendment); with
United States v. Brock, 417 F.3d 692 (7th Cir.2005) (holding that a dog “sniff test” outside a locked bedroom is not a “search”
within the meaning of the Fourth Amendment); and United States v. Roby, 122 F.3d 1120 (8th Cir.1997) (indicating that a dog
“sniff test” outside a hotel room is not a “search” within the meaning of the Fourth Amendment); and United States v. Colyer, 878
F.2d 469 (D.C.Cir.1989) (holding that a dog “sniff test” outside a railway sleeper compartment is not a “search” within the
meaning of the Fourth Amendment); and United States v. Broadway, 580 F.Supp.2d at 1179 (D.Colo.2008) (holding that a dog
“sniff test” outside an apartment is not a “search” within the meaning of the Fourth Amendment).
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