Divided Supreme Court Hinders Cops’ Use of Drug-Sniffing Dogs

A divided Supreme Court on Tuesday gave notice to the nation’s law enforcement officials that they generally need search warrants to employ drug-sniffing dogs outside a home to detect whether drugs are inside.

The case decided 5-4 involving a suspected Florida drug dealer limited the government’s ability to intrude into the home and was a blow to police. Law enforcement officials told the justices that the practice was “widely used,” and wanted the high court to sanction warrantless dog-sniff searches as the high court has for airport luggage or vehicles stopped during routine traffic stops.

A private residence, and the “curtilage” surrounding it, is another story and is protected by “ancient and durable roots,” Justice Antonin Scalia wrote for the majority.

“But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,’” Scalia wrote, (.pdf) quoting a 1961 high court decision. “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 right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.”

At least 18 states warned the Supreme Court that, should it rule the way it did, the outcome would imperil “a widely used method of detecting illegal drugs.” (.pdf)

In dissent, Justice Samuel Alito wrote that the majority’s decision is based on thinking “that is nowhere to be found in the annals of Anglo-American jurisprudence.”

Alito said those growing marijuana inside their homes have no reasonable expectation of privacy.

“A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human,” he wrote.

The case concluded Tuesday stems from a Florida Supreme Court ruling in which Florida’s top courttossed evidence of 179 pot plants (.pdf) that Miami-Dade County authorities seized from the residence of Joelis Jardines in 2006. Authorities made the bust after a trained dog “alerted,” or indicated that it detected drugs, while outside the home. Police were acting on a tip, and did not have a search warrant.

Florida’s top court said the dispute, which comes as studies suggest drug-sniffing dogs reflect police bias, sets a bad precedent and “invites overbearing and harassing conduct.”

Howard Blumberg, Jardines’ attorney, agreed.

“When you’re taking about a search of a home, a search of a home is per se unreasonable unless you have warrant with probable cause,” he said in a telephone interview. “The holding is it’s a search of the home, which requires probable cause and a warrant.”

It was the biggest Fourth Amendment case to be decided following the high court’s decision last year that said affixing a GPS device to a vehicle also amounted to search.

Joining Scalia was Justice Clarence Thomas, Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor and Justice Elena Kagan.

Alito was joined by Chief Justice John Roberts, Justice Anthony Kennedy and Justice Stephen Breyer.

Among others, the case weighed a decade-old Supreme Court precedent in which the justices had ruled that thermal-imaging devices used outside a house to detect marijuana-growing operations inside amounted to a search requiring a warrant. In that case, the high court ruled in 2001 that “rapidly advancing technology” threatens the core of the Fourth Amendment “right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”

The dog used to nab Jardines was Franky, then an 8-year-old chocolate Labrador. Miami-Dade County officials said the K-9 has discovered more than 2.5 tons of marijuana, 80 pounds of cocaine and millions in cash during its career.

Defense attorney Blumberg said the government’s deployment of a dog was akin to the “device” used in the thermal-imaging case. (.pdf) The dog, like thermal imaging equipment, was used “to explore details of the home that would previously have been unknowable without physical intrusion.”

Pamela Jo Bondi, Florida’s attorney general, had told the high court it must undo the Florida Supreme Court decision. (.pdf)

Law enforcement is significantly hampered if required to develop probable cause without the assistance of dogs. The Florida Supreme Court’s decision requires that the officers have probable cause before employing a dog. It is the dog’s alert, however, that often provides the probable cause to obtain the search warrant.

via Wired


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