Fourth Amendment Searches of the Home in Florida: State v. Rabb: Has the Florida Fourth District Court of Appeals Barked up the Wrong Tree?

The use of drug dogs in the United States began in 1970 when the United States Customs started using dog sniffs to detect the presence of contraband. This practice raised the Fourth Amendment issue of whether the use of a dog sniff required probable cause and a warrant. In United States v. Place, the United States Supreme Court found that a dog sniff is not a Fourth Amendment search because it is “less intrusive than a typical search” and because it reveals only “the presence or absence of narcotics.” Since that decision, some State courts have interpreted their constitutions to hold that a dog sniff is an unreasonable search. However, under Article I, Section 12 of the Florida Constitution, the right to be free from unreasonable searches and seizures shall be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. The Fourth Amendment to the United States Constitution provides that: “The right of the people to secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. The purpose of this Note is to address the recent Florida Fourth District Court of Appeals decision State v. Rabb. In Rabb, the court held that a dog sniff conducted in the exterior of the home is a Fourth Amendment search. The court distinguished the factual scenario in Rabb from Place by focusing on the fact that in Place the use of the dog sniff was on baggage at an airport, while in Rabb, the use of the dog sniff was at a private residence. The court referred to the long-standing proposition that one\u27s home is given extraordinary protection under Fourth Amendment jurisprudence and cited Kyllo v. United States as the controlling case in Rabb, stating that a dog sniff at the home violates the Fourth Amendment because: [A]ny physical invasion of the structure of the home, \u27by even a fraction of an inch,\u27 was too much, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes. This Note argues that a dog sniff, as conducted in Rabb, is not a Fourth Amendment search. Ultimately, this Note will contend that a dog sniff conducted in the exterior of a home open to public use does not violate a legitimate expectation of privacy at the home, and thus, is not a violation of the Fourth Amendment. Part II will briefly review relevant precedent on Fourth Amendment searches and dog sniffs. Part III will address the relevant precedent on dog sniffs at a dwelling place in Florida, namely the decision in Nelson v. State. Part IV will explain the court’s reasoning in Rabb from both the majority’s perspective and the dissent’s perspective. Part V will explain my criticisms and concerns of the Rabb decision. I will then conclude with why the decision in Rabb unduly burdens law enforcement and must be overturned