http://www.miami.com/mld/miamiherald/news/12657949.htm

Posted on Fri, Sep. 16, 2005

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APPEALS COURT

Tightened leash again put on cops' drug-sniffing dogs

Police efforts to use drug-sniffing dogs outside a person's home without a warrant was dealt a setback.

BY STEVE HARRISON

sharrison@herald.com

It's OK for police to use drug-sniffing dogs on cars during routine traffic stops, but a person's front door has twice been ruled off limits to them.

For the second time, the Fourth District Court of Appeal in West Palm Beach said that the Broward Sheriff's Office erred in 2002 when it used a dog to sniff for drugs at a Hollywood man's front door without a warrant.

Acting on a tip that James Rabb was growing marijuana, the police had his house under surveillance. A drug-sniffing dog barked at his doorstep, the police got a warrant, and Rabb was arrested for having cannabis plants and other drugs.

A Broward Circuit judge threw out the evidence, prompting the State Attorney's Office to appeal. The Fourth District supported the judge's decision last summer, and the case was appealed to the U.S. Supreme Court.

The nation's top court sent the case back to Florida, asking the Fourth District to review it in light of the high court's decision upholding the use of a drug-sniffing dog on a car during a traffic stop. In that case, an Illinois man, Roy Caballes, was arrested after a dog sniffed drugs in his trunk. The Florida court did not change its mind the second time around.

Its opinion states that a person's home is more sacred than his or her car, and that people have a higher expectation of privacy inside a home.

''The dog sniff occurred at the exterior of Rabb's home, the most sacred place under Fourth Amendment jurisprudence. . . .'' the court wrote. ``. . . We believe that a dog sniff at the exterior of a home should not be permitted to uncloak this remaining bastion of privacy. . .''

Celia Terenzio, assistant state attorney general, said the state will appeal this week's decision. She argued the dog did not invade Rabb's privacy because ``the search was binary.''

''This dog alerts to marijuana or he doesn't,'' Terenzio said. ``There is no expectation of privacy in illegal drugs. What will carry the day? The scope of the search or the locale?''

John Wesley Hall, an Arkansas defense lawyer who follows Fourth Amendment cases, said the Fourth District made the correct decision.

''The court decided this correctly the first time, and it correctly decided this the second time,'' Hall said. ``They said a house is completely different than a car.''

The courts have struggled to determine the scope of the Fourth Amendment. While the U.S. Supreme Court ruled in favor of law enforcement in Caballes, in 2002 it rejected police use of devices to detect heat emanating from homes, a technique used to find people growing marijuana with heat lamps.