Will Supreme Court turn up its nose at dog sniffs?

By BitterSweet · Oct 30, 2012 · ·
  1. BitterSweet
    (Reuters) - Two dogs, a chocolate Labrador retriever named Franky and a German shepherd named Aldo, should have their day at the U.S. Supreme Court.

    People line up for admission at the U.S. Supreme Court in Washington. REUTERS/Gary Cameron

    The court is scheduled on Wednesday to hear Florida's appeal of two decisions by that state's highest court that found the detection of drugs by trained police dogs had violated the constitutional ban on unreasonable searches and seizures under the Fourth Amendment of the U.S. Constitution.

    These arguments involve distinctly different issues: whether a dog can sniff outside a home without a warrant, and how qualified a dog must be to do a legitimate sniff.

    They give the Supreme Court a chance to extend, or limit, prior decisions giving police a long leash to use dogs, including for suitcases at airports and cars stopped at checkpoints.

    "If the court vindicates the ability of police to use dogs without probable cause, and that a sniff outside a car justifies searching that car, it could enhance their ability to use dogs for law enforcement," said Richard Garnett, a University of Notre Dame law professor and clerk for former Chief Justice William Rehnquist.

    Like others in law enforcement, Florida maintains that dog "alerts" are not searches because they uncover illegal activities that deserve no privacy protection.

    The retired Justice David Souter mocked that idea in a dissent from a 2005 pro-sniff decision, saying it supposes that a trained canine becomes an "infallible dog" that never errs.

    At least 23 U.S. states joined each of Florida's appeals, calling drug-detecting dogs "essential weapons" at the forefront of efforts to stop illegal drug production and sales.

    The Supreme Court is often their ally in search cases, typically siding with the police.


    One of Wednesday's cases, Florida v. Jardines, concerns a December 5, 2006, search outside Joelis Jardines' home near Miami.

    A "crime stopper" had tipped police that marijuana was growing inside. Relying on that tip, a detective, joined by Franky, approached. Trained to find the strongest odor, Franky went to the front door, sniffed the base, and sat down.

    That was the alert his handlers were looking for. After obtaining a search warrant, police found marijuana plants inside the home. Jardines was arrested for possessing more than 25 pounds of marijuana, and stealing the electricity to grow it.

    In voiding the search, Florida's highest court called Franky's sniff an "unreasonable government intrusion into the sanctity of the home." There, it said, the expectation of privacy was much greater than in a car or an airport.

    The court also likened Franky to the heat-sensing thermal imagers that the U.S. Supreme Court, in a 2001 decision that cut across ideological lines, said could not without a warrant be used outside a home to detect marijuana growing inside.

    Where the government uses a device "not in general public use" to uncover details about a home, "the surveillance is a 'search' and is presumptively unreasonable without a warrant," Justice Antonin Scalia then wrote for a 5-4 majority.

    "Jardines is a line-drawing case: the question is can police use the dog at the front door," said Orin Kerr, a law professor at George Washington University and former clerk to Justice Anthony Kennedy. "If a warrant were needed, police would never use the dog at a house, because then they could just go inside."


    Wednesday's other case, Florida v. Harris, involves a search not of a house, but of Clayton Harris' pickup truck.

    An officer pulled over Harris near Bristol, Florida, in the state's panhandle, on June 24, 2006, after seeing that the truck had an expired tag. An open beer can lay in the cup holder.

    Nervous, shaking and breathing rapidly, Harris would not let the officer search his truck. Out came Aldo, who was led around the truck for a "free air sniff."

    Near the driver's door handle, Aldo gave his alert, becoming excited and then sitting down. The officer then searched the truck's interior, and found 200 pseudoephedrine pills and 8,000 matches, which are ingredients for methamphetamine.

    Harris pleaded no contest, but he got a reprieve. The Florida Supreme Court said the state did not show Aldo's reliability as a drug detector with evidence of his training, certification and performance, and his handler's experience.

    By comparison, Franky had no such problems, according to court papers. At the time of Jardines' search, he had made 399 positive alerts. The result: seizures of roughly one ton of marijuana and 34 pounds of cocaine and heroin.

    "The state's 'credentials alone' canine-reliability test is based on an over generalized assertion - that all trained or certified drug-detection dogs are reliable in the field," a group of 34 law professors said in a brief supporting Harris.

    Regardless of how the court rules in both cases, police will go on using dogs for drug detection. The questions are when, and how.

    Decisions in both cases are expected by the end of June.

    The cases are Florida v. Jardines, U.S. Supreme Court, No. 11-564; and Florida v. Harris, U.S. Supreme Court, No. 11-817.

    (Reporting by Jonathan Stempel in New York; Editing by Howard Goller and Tim Dobbyn)

    Read here.


  1. Grower'sDelight
    Drug sniffing dogs are just as unreliable as eye witnesses testimony. An over-haul of the U.S.A. legal system needs to be of top priority!!!!
  2. kumar420
    As a drug user it'd be good not to have to worry about drug dogs detecting my stash, but from an objective standpoint the idea seems kind of absurd. This part made me chuckle:
    Maybe its just the terminology used but this paragraph makes it sound laughable. How does one determine how qualified a dog is and where it is 'permitted' to sniff?
  3. mccthyjhn
    So your telling me that if i broke into a house in my local town whilst the owner was out and theyd left there dog in the house the dog could be called as a witness.Doesnt sound quite right a dog after all is just a dog.
  4. usually0
    I think the fact that a dog sniff is disputable should make a search based on a dog sniff illegal. The dog isn't perfect, and I'd say that's enough to not make it reasonable justification of a search.

    This is an evasion of privacy, because we can't actually ask the dogs if what they sniffed was marijuana or hot dogs. The only eye witness is the police officer and there's way to much incentive for him/her to lie. What's to stop police officers from training the dog to sniff whatever they wanted.
  5. Rob Cypher
    Various studies have shown that dogs' sniffing abilities aren't quite as good or accurate as police make them out to be...that being said, this is a mostly right-leaning SC currently in operation so I expect them to rule in favor of law enforcement on this particular issue. :s
  6. talltom
    This article, written after the oral arguments, hints the Court may rule against the dog sniffing, at least in front of homes.

    While considering whether a police dog should be allowed to sniff outside a home for illegal drugs inside, some U.S. Supreme Court justices smelled a rat and hint at limits on dog sniffs for drugs

    At their Wednesday session, justices from across the ideological spectrum signaled that the privacy interest of a person in his home was too great to give police a broad license to let trained canines sniff around a home for evidence they could not see.

    But in a second case involving a sniffer dog, some of the justices indicated they were hesitant to set too high a bar on police to show that their dogs are reliable.

    The nine-member court has often allowed dog searches, including of luggage at airports and cars at checkpoints.

    On Wednesday it addressed Florida's appeals of two decisions by the state's highest court that found the detection of drugs by trained police dogs violated the ban on unreasonable searches and seizures under the U.S. Constitution's Fourth Amendment.

    The first case focused on the location of the search, on the doorstep of a home, while the second was focused on whether the dog in question was sufficiently reliable.


    In the first case, police let their chocolate Labrador retriever Franky sniff the base of the front door of Joelis Jardines' home near Miami after receiving an anonymous tip that marijuana was growing inside. Franky's "alert" led to the discovery of more than 25 pounds of marijuana inside.

    At least six justices challenged some assertions by Gregory Garre, a former U.S. solicitor general arguing for Florida, who said drug detection dogs only reveal the presence of contraband, in which no one had a legitimate expectation of privacy.

    "That just can't be a proposition that we can accept across the board," Justice Anthony Kennedy said.

    Justice Antonin Scalia said it would be okay to let police use binoculars to look inside a home from afar if the blinds were left open, but not to walk right up if they saw nothing.

    "Why isn't it the same thing with the dog?" Scalia asked. "It seems to me crucial that the police officer went up to the portion of the house as to which there is privacy."

    Garre said police deserved the capacity to effectively combat the "serious epidemic" of so-called grow houses.

    Justice Stephen Breyer, however, said many homeowners would resent having a dog walk up and down near their homes. "You're looking at the expectation of a reasonable homeowner," he said.

    Some justices likened Franky to the thermal imagers that the Supreme Court said in 2001 could not be used to look inside homes, because they could uncover things that deserved privacy.

    Justice Elena Kagan asked if police could use a "Smell-o-Matic" that found the same things a dog might find. "Your basic distinction is between a machine and Franky," she told Garre.

    Howard Blumberg, an assistant public defender arguing for Jardines, the homeowner in the case, also came under fire.

    Justice Samuel Alito rejected as too broad his argument that Franky's sniff was a search because it revealed details that a homeowner wanted to keep private. Blumberg also called the sniff a trespass, but struggled to tell Alito whether any cases in the last few hundred years had made that point.

    Chief Justice John Roberts asked if it mattered that mothballs, which mask odors, were found outside Jardines' home.

    "Are we talking about an expectation of privacy in the marijuana or an expectation of privacy in the odor?" he said.


    The second case concerned the discovery of methamphetamine ingredients inside Clayton Harris' pickup truck, after it had been pulled over for having an expired tag.

    An officer gave his German shepherd Aldo a "free air sniff" after the nervous-looking driver refused to allow a search.

    Florida's supreme court said the state did not show enough evidence, beyond training and any certifications, that Aldo's nose was reliable.

    Glen Gifford, another assistant public defender arguing for Harris, said more evidence was needed, and that dogs' enforcement records and the conduct of their handlers might also play roles.

    But he couldn't offer what Roberts called a "magic number" for the percentage of correct alerts that would be acceptable to determine whether a dog was reliable.

    Scalia challenged the argument that police might deliberately use ill-trained dogs to generate more false alerts, and more searches.

    Police "like to search where they're likely to find something, and that only exists when the dog is well-trained," Scalia said. "They have every incentive to train the dog well."

    Decisions are expected by the end of June.

    The cases are Florida v. Jardines, U.S. Supreme Court, No. 11-564; and Florida v. Harris, U.S. Supreme Court, No. 11-817.

    Jonathan Stempel
    Oct 31, 2012

  7. BitterSweet
    Hey all, here's an update on the Supreme Court case:

    Drug-sniffing dog day at the Supreme Court

    WASHINGTON -- The Supreme Court has a Lemon Test (for church-and-state separation), a Miller Test (obscenity) and a Smith Test (religious freedom), not to mention the late Justice Potter Stewart's pornography test: He knew it when he saw it.

    To this list, Justice Elena Kagan proposed adding another method of jurisprudence -- the Cockapoo Test. The newest justice's idea goes something like this: If the police dog who is sniffing for drugs outside your house is extremely cute, the procedure may not violate the Fourth Amendment prohibition of unreasonable searches.

    "Suppose this really were a very simple procedure," Kagan told the lawyer who was arguing that drug-sniffing dogs cannot be used to justify search warrants. "The dog comes up, takes a sniff, barks, sits down. And ... the dog is not a scary-looking dog; the dog is a cockapoo. So just like, you know, your neighbor with his cockapoo, walks up to your door all the time, that's what this police officer has done."

    The lawyer, Howard K. Blumberg, conceded that the dog in the case, Franky, although not a cockapoo, "appears to be a very cute dog." But, he argued, "it's not what the dog looks like, it's what the dog is doing on the front porch."

    The Cockapoo Test, alas, may not be one for the casebooks. But after Wednesday morning at the Supreme Court, this much we know for sure: The Roberts court has gone to the dogs.

    The justices spent two hours hearing arguments about drug-sniffing dogs, and whether the evidence their wet noses detect outside of homes and cars can be used to justify searches. Dog theory is a little-explored area of law, and the justices were ready to chew on it.

    "I'm not sure it's relevant," Chief Justice John Roberts said, but "if you have a dog that's trained and good at sniffing out heroin, the same dog is going to be good at detecting a bomb?"

    "I think any dog could be trained in either discipline," answered Justice Department lawyer Joseph Palmore.

    "Can they be good at bombs, but not good at meth?" the chief justice persisted.

    "I think once a dog kind of chooses a major, that's what they stick with," Palmore posited.

    "You don't want coon dogs chasing squirrels," agreed Justice Antonin Scalia.

    The canine court's theme for the day unleashed all manner of wordplay. The Supreme Court reporters traded prospective puns before the argument, about marking territory and throwing bones. But there was a serious question: Justice may be blind, but can she admit as evidence a dog's superior olfactory powers?

    "There is an implied consent for people, visitors, salesmen, Girl Scouts, trick-or-treaters, to come up to your house and knock on the door," argued Gregory Garre, representing the state of Florida, which is pro-sniffing-dog.

    "Yes, there's an implied invitation to the Girl Scout cookie seller, to the postman, even to the police officer, but not police officer with dog," said Justice Ruth Bader Ginsburg.

    "If you're allergic to animals, you don't want dogs walking around at your door," contributed Justice Sonia Sotomayor, who also spoke about the importance of leashes.

    "Well," suggested Garre, "you can certainly put the 'No Dogs Allowed' sign out front."

    But the pro-dog argument was meeting with distemper on the bench. Justice Stephen Breyer said a typical homeowner would resent man and beast coming to their door and "not knocking ... just sniffing."

    Kagan questioned the logic of regarding Franky the dog not as a technology but as "just like a guy."

    "Franky is using the same sense of smell that dogs have used for centuries," Garre argued, informing the justices that "Scotland Yard used dogs to track Jack the Ripper."

    The argument devolved into a dog's breakfast, covering such legal topics as: the use of mothballs to mask the smell of marijuana; the smoke that comes from burning a corpse; delivery of invitations to the Policeman's Ball; and how a tennis ball in a car trunk can cause a false-positive sniff for drugs.

    In the second case, the nation's brightest legal minds found themselves deep in the details of dog training and certification -- an irony observed by Scalia. "That's a constitutional requirement, that the dog training doesn't count unless it's training with the officer who is using the dog?" he asked.

    "At least," Scalia observed a few minutes later, "we don't have to worry about mothballs in this case."
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