Minimally invasive warrantless searches

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A minimally intrusive warrantless search is a type of search that does not breach the boundaries of the property and is performed without any prerequisite search warrant. These searches are contested regularly in courts, and have been ruled for and against under different circumstances. The primary debate concerns the method in which the search is conducted, and also the area being searched. Issues concerning warrantless search and subsequent seizure are always of local concern, because they are a community law enforcement issue as well as a national law issue.

The debate centers on whether the home holds special legal sanctity against warrantless search, unlike an automobile. Automobiles stopped on public roads can be searched without warrants because the searched party is still on public property. Warrantless searches can also be performed in public buildings, such as museums and airports. However, because the home is the private property of the owner, homes have different protections against warrantless searches--protections that are confusing at present.

Debate

In Caballes v. Illinois, the supreme court upheld the constitutionality of a drug-sniff around a car without reasonable suspicion. (7-2) The court argued that no legitimate privacy was violated, as a drug sniffing dog alerts exclusively in the presence of contraband, and no citizen has a right to contraband.

Caballes served to rekindle and reintroduce the debate over searches of the home, which was uncontested after the supreme court ruling in Kyllo v. United States. In this case, the supreme court ruled that a minimally intrusive warrantless search of the home was unconstitutional when thermal imaging devices were used.

Caballes v. Illinois called into question certain aspects of Kyllo v United States. Justice Stevens asserted that the Kyllo search was only unconstitutional due to the fact that it revealed certain aspects of the besides the presence or absence of contraband. This opened the door to the current minimally intrusive drug sniffs of the home which can only detect the presence or absence of drugs.

A recent case, Jardines v. Florida will be decided later in 2012. It is the juncture of the Caballes and Kyllo, involving an unwarranted drug sniff (upheld in Caballes) of the outside of the home.