When we hear that the U.S. Supreme Court will hear a 4th Amendment case, our ears perk up and conflicted feelings of hope and fear begin to swell.  Criminal defense lawyers wield the sword of the 4th amendment daily and any change to the meaning of its protections can have an immediate and far reaching impact.


Over the years the high court has whittled down the power of the 4th Amendment, which was originally intended to protect our homes and bodies from government intrusion.  However, with what appears to be renewed interest, and with Justice Antonin Scalia at the lead, the 4th Amendment is being revived and, in some cases, reinforced.


This past term the Supreme Court issued five significant Fourth Amendment decisions. Three of the rulings favored criminal defendants, with two finding that the police acted improperly in searches associated with those cases.


The Fourth Amendment contains two clauses: 1) the prohibition of unreasonable searches and seizures, and 2) a requirement that probable cause exist to support any warrant issued.


However, the courts have allowed warrantless search/seizure to be conducted if “exigent circumstances” justify these warrantless actions. Exigent circumstances exist when there is probable cause to believe:


• The evidence sought is in imminent risk of destruction; • The safety of a law enforcement officer or the general public is in danger; • The police are in “hot pursuit” of a criminal suspect; and • A criminal suspect is likely to flee before a warrant can be obtained.


In 1966, the U.S. Supreme Court issued a landmark ruling that limited the “warrant requirement” in alcohol-related arrests; that, if certain “special facts” create a reasonable belief by the arresting officer that he faces an “emergency situation” which, if delayed, could result in to the destruction of evidence, he does not have to obtain a warrant before taking a blood sample. Law enforcement argues this kind of emergency situation exists in DWI cases because the percentage of alcohol in the blood stream quickly diminishes once the consumption of alcohol ceases; thus, the argument goes, an arresting officer does not always have time to find a judge or magistrate to issue a warrant because of exigent circumstances.


Over the years, some states took the position that warrantless “blood draws” should be decided on the “totality of the circumstances” of each case while others adopted a per se rule that the natural dissipation of blood-alcohol evidence alone creates an exigency permitting warrantless blood draws. Prosecutors favor the per se rule because they see the natural dissipation of alcohol in the blood as being tantamount to evidence destruction.


In January the Court in Missouri v. McNeely ruled in favor of the “total of the circumstances” approach. In effect, the natural dissipation of blood-alcohol alone is not a sufficient exigency to justify dispensing with the warrant requirement of the Fourth Amendment.


In a completely different application of the Forth Amendment, in Bailey v. United States, the high court invalidated the detention and search of an individual who was detained “incident to the execution of a search warrant” who was far outside the immediate vicinity of premises being searched pursuant to a warrant.


The other two Fourth Amendment cases involved “probable cause” associated with drug detection dogs.

In one of these cases, Florida v. Harris, the court held that the failure of the prosecution to produce field performance records standing alone does not prevent a trial court from determining the animal is reliable for probable cause purposes.  The Court  anounced the “correct approach” in determining the reliablility of the dog should be based on the totality of the circumstances.  “The court should… consider all the evidence and apply the usual test for probable cause — whether all the facts surrounding the alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime…”


The drug dog in the other case, Florida v. Jardines, did not fare as well. This case involved the search of a residence. Officers received an unverified tip that the residence was being used to grow marijuana. They had a drug dog approach the front porch of the residence where it alerted to the presence of narcotics. The police then applied for and secured a warrant to search the residence in which they found marijuana plants. The court held that the use of a drug dog to investigate a residence is a search within the meaning of the Fourth Amendment; and, as such, there must be sufficient probable cause, more than an officer’s smell of narcotics, to introduce the dog into a search process.


This decision, written by Justice Scalia, makes it clear that a person’s residence is his castle and the police do not have a license to allow a “scent hound” to traipse around the yard of the residence trying to sniff out the odor of drugs. In effect, the police must now get a warrant before they can take a drug dog on a person’s property to conduct an “open air sniff” for narcotics.


So, while there is contention about its application in particular circumstances, there is still hope the Fourth Amendment will survive.