Drug sniffing dogs' status under Fourth Amendment before Supreme Court

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Whether dogs trained to sniff for narcotics constitute a search protected under the Fourth Amendment was the subject of oral argument Oct. 31 before the Supreme Court in one of two dog-sniffer cases heard that day.

The first, Florida v. Jardines, involves a drug-sniffing dog (named Franky) who was taken by a police officer up the driveway and front walkway of a south Dade County house and who sniffed the base of the front door and alerted the officer to the presence of marijuana inside by sitting down. Police shortly returned with a warrant and charged the resident, Joelis Jardines, with trafficking more than 25 pounds of cannabis.

"A drug detection dog reveals only the presence of contraband, and that no one has a legitimate expectation of privacy in that," said Gregory Garre, a Washington, D.C.-based Latham & Watkins partner who represented the state of Florida.

That assertion was quickly contested by Justice Anthony Kennedy, who said that "just can't be a proposition that we can accept across the board."

Added Justice Sonia Sotomayor, "If you have no expectation of privacy in the contraband, why bother even with a search warrant?"

Much of the oral argument revolved around the expectation of privacy and implied consent in an area around houses known as curtilage, the legal term for an area immediately surrounding a house where residents still conduct intimate home activities.

"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," Garre said, adding later that "neighbors can bring their dog up on the leash when they knock on your front door, and I think that's true in most neighborhoods in America."

A policeman present with implied consent in the curtilage who smelt marijuana wouldn't be conducting a search protected by the Fourth Amendment, Garre said--just as a policeman with a dog isn't.

Justice Antonin Scalia said it would be a search if a police officer "went there with the intention of smelling at the door. He's going there to search, and he shouldn't be on the curtilage to search," he said.

During oral argument led by the defense attorney, Howard Blumberg, a Miami assistant public defender, ran into resistance by arguing that a police officer has the right to knock on a house door and wouldn't violate an expectation of privacy by smelling marijuana with his own nose.

"I think you're, with respect, misguided to concede that if it was just the officer alone without the dog, it would be perfectly okay," Scalia said, to which Blumberg responded, "I did not mean to concede that, and I was going to say that."

He then said that the expectation of privacy would depend on whether the police officer approaches a house in order to perform a search. Were the police officer at the house door for an ancillary matter, it wouldn't be a violation.

"Two officers go up to two identical houses. One goes up with the subjective intent to sniff. The other one goes up with the subjective intent to drop off the tickets to the Policeman's Ball. Your answer is one is a search, one is not a search," said Justice Samuel Alito.

Moving back to the issue of the presence of narcotics-sniffing dogs, Blumberg said that the dog is the functional equivalent of a thermal imager, the latter having been ruled a search requiring a warrant under the Fourth Amendment in Kyllo v. United States.

Alito again challenged Blumberg on that point, stating that dogs "have been around for 10,000 years" and that the framers of the Constitution knew that dogs could be used to track scents.

"But in 1791, dogs had not been trained to detect criminal activity within a house," Blumberg said.

The second case of the day involving dog sniffing was Florida v. Harris, which turns around whether a trained drug detection dog's alert is sufficient to establish probable cause to search the vehicle. Arguing Florida's case again was Garre.

"Are you for or against the dog this time?" Scalia asked.

"For it again, Your Honor," he replied.

For more:
- go to the Supreme docket webpage for Florida v. Jardines
- go to the Supreme docket webpage for Florida v. Harris

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