Bloomberg News

Dog-Sniff Cases Debated as Court Weighs Privacy Rights

March 26, 2013

Police Need Warrants for Dogs Sniffing Homes, High Court Says

The ruling comes in one of two dog-sniff cases the U.S. Supreme Court is considering in their nine-month term. Photographer: Bryan Mitchell/Getty Images

Drug-sniffing police dogs have their place, the U.S. Supreme Court ruled. And it’s not on a suspect’s front porch.

The court today said officers typically need a warrant before taking an animal to the door of a house in the hope of detecting narcotics. The justices ruled on Feb. 19 that police officers can search someone’s car after a trained dog outside the vehicle alerts them to the presence of drugs.

Together, the decisions amount to a vote of respect for the abilities of police dogs -- and wariness about their potential misuse. While the court has previously said officers can walk onto a suspect’s property to knock on the door, the 5-4 majority today said the use of trained dogs is different.

“When it comes to the Fourth Amendment, the home is first among equals,” Justice Antonin Scalia wrote. “This right would be of little practical value if the state’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.”

The justices were considering a bid by Florida officials to revive the prosecution of a man arrested after police raided a Miami house and found marijuana plants.

The Florida Supreme Court said prosecutors couldn’t use evidence obtained in the house because officers violated the U.S. Constitution’s ban on unreasonable searches.

Scalia was joined in the majority by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Stephen Breyer dissented.

‘Big-Picture Case’

“It’s a big-picture case,” Steven Benjamin, president of the National Association of Criminal Defense Lawyers, said in a telephone interview. “To put it simply, the front porch now enjoys the same safety from uninvited or warrantless search as the living room.”

Miami-Dade police began focusing on Joelis Jardines’s house after receiving a tip he was growing marijuana there. A month later, two detectives went to the front porch with a drug- sniffing dog, named Franky, who gave an alert at the door. One of the detectives said he also smelled marijuana.

The officers then left to get a search warrant before entering the house and discovering the plants. Jardines was charged with trafficking cannabis and stealing electricity to grow the marijuana.

‘Something Else’

The Supreme Court majority said police -- like Halloween trick-or-treaters and Girl Scouts selling cookies -- are permitted to knock on someone’s door.

“But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else,” Scalia wrote. “Their behavior objectively reveals a purpose to conduct a search.”

Prosecutors and law enforcement groups pushed for the court to reverse the Florida Supreme Court’s decision, citing the potential negative fallout to upholding the ruling.

“If the Florida Supreme Court’s decision is upheld, it could have a profound chilling effect on law enforcement efforts to combat illegal drugs,” a group of 27 state attorneys general, including Greg Abbott of Texas, Beau Biden of Delaware and Ken Cuccinelli of Virginia, wrote in a May 2012 brief to the court.

Alito, writing for the dissenters, pointed to a centuries- long tradition of using dogs for police work.

‘Specialized Device’

“It is clear that the occupant of a house has no reasonable expectation of privacy with respect to odors that can be smelled by human beings,” Alito wrote. “I would not draw a line between odors that can be smelled by humans and those that are detectable only by dogs.”

Kagan, in an opinion concurring with the majority, countered that Franky, the police dog, wasn’t an ordinary canine.

“A drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell),” she wrote. “That device was aimed here at a home -- the most private and inviolate (or so we expect) of all places and things that the Fourth Amendment protects.”

Last month’s decision, also in a case from Florida, involved the use of a trained dog after a police officer stopped Clayton Harris for driving his pickup truck with an expired license plate. After the dog, named Aldo, gave an alert by the driver’s-side door handle, the officer concluded that he had the legal right to search the truck.

Privacy Expectations

The search produced ingredients for making methamphetamine, and Harris later admitted that he had purchased the items to make the drug.

The court unanimously said that search was permitted.

“We have held, over and over again, that people’s expectations of privacy are much lower in their cars than in their homes,” Kagan wrote in today’s case.

The high court ruled in 2001 that police couldn’t use technology -- in that case a thermal imaging device -- to discover what otherwise would be unknowable details about a private home.

Florida argued that police should have greater leeway to use drug-sniffing dogs. The Obama administration argued alongside Florida, urging the court to permit broad use of trained dogs.

Jardines’ lawyers said the use of dogs outside a person’s door violated the homeowner’s reasonable privacy expectations.

In the opinion for the court, Scalia said the justices didn’t need to decide whether the case raised privacy issues. Bringing a drug-sniffing dog to the door demonstrated that the police were conducting a search in an area protected by the Fourth Amendment, Scalia wrote.

In the concurring opinion, joined by Ginsburg and Sotomayor, Kagan wrote that she “could just as happily have decided it by looking to Jardines’ privacy interests.”

The cases are Florida v. Jardines, 11-564, and Florida v. Harris, 11-817.

To contact the reporters on this story: Greg Stohr in Washington at gstohr@bloomberg.net; Bob Drummond in Washington at bdrummond@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net


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