FL3 rejects FL4’s Rabb and holds dog sniff at front door is lawful

FL3 rejects FL4’s Rabb and holds dog sniff at front door is lawful because a law enforcement officer has the authority to approach the front door, and a dog sniff is not a search, so the two together are not unconstitutional. If the officer smelled marijuana at the door, that already has been held constitutional. State v. Jardines, 9 So. 3d 1 (Fla. App. 3 DCA 2008), review granted 2009 Fla. LEXIS 218 (Fla. Feb. 4, 2009):

Also supporting our conclusion is State v. Pereira, 967 So. 2d 312, 313 (Fla. 3d DCA 2007). In Pereira, officers went to the defendant’s home based on an anonymous tip that the defendant was growing marijuana. A detective walked toward the premises and, while standing in front of the premises, smelled marijuana. Officers returned the next day with a narcotics-search dog. Approaching the front door, the officer again smelled the marijuana, and the canine alerted.

While we chose not to address the legality of the dog sniff, we rested our decision on the officer’s right to be on the defendant’s front porch:

We disagree with the defendant’s contention that the officers’ detection of the odor of marijuana emanating from the defendant’s home while standing on the sidewalk and front porch of the defendant’s home is an invasion of the defendant’s privacy protected by the Fourth Amendment. Admittedly, there was no evidence that the front yard or porch was enclosed by a fence or any other structure and was, in fact, open to public access. We follow those cases which hold that HN14there is no reasonable expectation of privacy at the entrance to property which is open to the public, including the front porch. See State v. Morsman, 394 So. 2d 408 (Fla. 1981); State v. E.D.R., 959 So. 2d 1225 (Fla. 5th DCA 2007), and cases cited; Ramize v. State, 954 So. 2d 754 (Fla. 3d DCA 2007); Potts v. Johnson, 654 So. 2d 596 (Fla. 3d DCA 1995); see, e.g., United States v. Cota-Lopez, 104 Fed.Appx. 931 (5th Cir. 2004). Compare State v. Rabb, 920 So. 2d at 1191.

Pereira, 967 So. 2d at 314 (footnote omitted); State v. E.D.R., 959 So. 2d 1225, 1226 (Fla. 5th DCA 2007) (concluding that defendant’s porch “was not a constitutionally protected area”); see also State v. Garcia, 374 So. 2d 601, 602-03 (Fla. 3d DCA 1979) (concluding “[w]hen the lawful performance of his duty requires that an officer enter upon private property to make a general inquiry, such an entry is justifiable,” and holding that officers smelling “the odor of marijuana smoke” at the front door of a residence was a factor supporting a finding of probable cause).

From these cases, it is clear that Officer Pedraja had a right to approach Jardines’ front door. The fact that he waited for the dog and approached with the dog does not change this result, even if the dog alerted before the officer detected the scent. The officer’s presence with the dog and their sniff of the odor of marijuana as well as the other facts identified in the probable cause affidavit was sufficient to establish probable cause for the warrant to issue. The trial court erred in concluding that the magistrate lacked probable cause to issue the warrant and erred in suppressing the evidence obtained as a result of the warrant.

Prior post of Rabb is here. FL1 distinguished Rabb a month ago here.