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39 W. St. U. L. Rev. 187 (2011-2012)
Place Doesn't Apply to My Place; the California Home Is Sui Generis Because Medical Marijuana Is Not Contraband and Indiscriminate Residential Dog Sniffs Invade a Patient's Legitimate Expectation of Privacy

handle is hein.journals/wsulr39 and id is 193 raw text is: Place Doesn't Apply To My Place; The California Home Is Sui Generis Because Medical Marijuana Is Not Contraband and Indiscriminate Residential Dog Sniffs Invade a Patient's Legitimate Expectation of Privacy INTRODUCTION ............................................................. 187 PART I - A SEARCH CAN BE CHALLENGED IN COURT ..................... 188 PART 11 - THE US SUPREME COURT SAYS A DOG SNIFF Is NOT A SEARCH ... 189 PART III - STATE AND FEDERAL DOG SNIFF DECISIONS ...................... 193 PART IV - STATE CONSTITUTIONS GRANT MORE PRIVACY ................... 195 PART V - MEDICAL MARIJUANA Is NOT CONTRABAND AND ITS LEGITIMACY IN CALIFORNIA RENDERS PLACE OUTDATED AND INAPPLICABLE .......... 197 PART VI - EVIDENCE OF MARIJUANA POSSESSION SHOULD NOT ESTABLISH PROBABLE CAUSE TO SEARCH BECAUSE MARIJUANA Is NOT CONTRABAND ...................................................... 199 CONCLUSION............................................................... 200 EPILOGUE - BRIEF NOTE ON KINo, THE CASTLE, AND THE HUFF AND PUFF THAT COULD BLOW THE FOURTH AMENDMENT HOUSE DOWN ......... ..201 INTRODUCTION' Picture the scene. The location is any apartment corridor or residential walkway. A snarling, barking German Shepherd pulls a leash taut. On the other end of the leash is a man in dark clothing with handcuffs and a gun. The dog stops, barks, and then claws at the front door of a residence. After a judge is told of this positive alert, the doorway to that home can be breached and everything within that private residence is subject to the intrusive, prying eye of the government. The dog sniff is not a 'search,' and thus cannot be challenged in court per se.2 Nevertheless, a positive dog alert establishes probable cause which supports the issuance of a search warrant.3 The scope of a search for drugs is limited only by where drugs could be hidden, which is essentially anywhere. Therefore, an activity which is not subject to challenge can lead to the revelation of the contents of every nook and cranny of a person's residence. 1. One week after I submitted this article for publication the United States Supreme Court granted certiorari in the case of Florida v. Jardines. 132 S.Ct. 995 (2012). Although the Jardines opinion may render this article moot, California state laws could afford more constitutional protection than the United States Supreme Court. My humble prediction, if I dare venture, is that the high court will hold that reasonable suspicion is required for a dog sniff within the curtilage of a residence. Therefore, purely indiscriminate sweeps is the only action that will be prohibited, given that reasonable suspicion is a relatively low evidentiary standard. Also, it should be noted that Colorado's medical marijuana laws amend the state's constitution to provide a right to use, possess, and cultivate marijuana for medicinal use. 2. U.S. v. Place, 462 U.S. 696, 707 (1983). 3. Estes v. Rowland, 14 Cal. App. 4th 508, 529 (1993).

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