Drug-Sniffing Dog Will Get His Day At U.S. Supreme Court

WASHINGTON -- The Supreme Court on Friday agreed to hear a case challenging the constitutionality of a police dog's warrantless sniff outside a suspected marijuana grow house in Florida.

The case, Florida v. Jardines, comes up from the state Supreme Court, which ruled that Franky the narcotics dog's outside odor detection was "a substantial government intrusion into the sanctity of the home and constitutes a 'search' within the meaning of the Fourth Amendment." Florida's high court pointed to a 2001 U.S. Supreme Court opinion, written by Justice Antonin Scalia, that found police use of a thermo-imaging device to detect tell-tale heat emanating from a suspected grow house violated the Fourth Amendment's ban on unreasonable searches.

But in its petition to the U.S. Supreme Court, the state of Florida argued that the justices' rationale in the earlier case rested on the fact that the heat-seeking device would detect more than illegal activities. It would also violate a person's legitimate privacy interests, such as (to quote Scalia) "at what hour each night the lady of the house takes her daily sauna and bath."

Franky's nose is trained to sense only contraband that people have no legal interest in possessing, Florida wrote. And in 2005 the high court reaffirmed its belief, stated in earlier cases, that dog sniffs do not violate the Fourth Amendment -- at least when it comes to cars and luggage.

Leaning heavily on those earlier dog-sniff decisions, Florida wrote that its case depends on "the nature of the dog's nose, not the area being searched."

The justices will likely hear oral argument in the case in April and hand down a decision by the end of June.

Friday's order list gave no indication of whether the Court has denied or held over for a later conference another closely watched petition seeking to end the ban on noncitizens' contributions to federal elections.

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Comments

[O K Ali]

04:49 AM on 01/12/2012

It's easy for a cop to say, "My dog alerted to the presence of narcotics in your home, car, etc." The dog can't testify to the fact that it actually smelled the contraband. Police are allowed to lie to you, and many people have tripped themselves up by not staying silent. Take this case. It's about 15 minutes long, and two parts, but shows how a police officer in Cobb County tried to used a dog for a no warrant search.
http://www.youtube.com/watch?v=Fga7miyIzLE
http://www.youtube.com/watch?v=xZBJY3sK1wQ&feature=related
The driver did not relinquish his 4th amendment rights and the dog apparently "wasn't working at that time of day".

[morrissinger]

02:28 PM on 01/09/2012

Everyone seems to forget that the Kyllo case, to which the courts are turning for guidance, dealt with a device that was not in general public use---thermal imaging sensors. Kyllo put forth a very clear caveat that methods that are in general public use, administered from the street, were not the subject of the opinion. At the very least, it is an open question whether and how to apply Kyllo to drug-sniffing dogs. That's precisely where the Supreme Court opinion is going to focus, and I am excited to see what they decide.

[Doug Cool]

10:08 PM on 01/07/2012

Arn't these dogs regarded as members of the police force? A police dog in our community was recently given a funeral with full honors....

[Alisa Neely]

07:12 PM on 01/07/2012

i'm not really sure, WHAT to think on this one....in some ways their right....it could be seen as going against the 4th ....yet, we want them to get rid of the illegal drugs......so what do we do?

alisa

[lunchstealer]

04:07 PM on 01/07/2012

Well, from a basic understanding-of-English point of view, dogs are used to search for drugs. If they have ten cars, and think there might be drugs in one, they often bring dogs to each car to see if they smell the drugs. When you attempt to find something but you aren't sure if it's there, that, in English, is a 'search', no matter how unintrusive it is.

Worse, is that drug sniffing dogs are used as justification for more intrusive searches, on the idea that an alert from a dog is evidence of the presence of drugs. However, this is false. Drug dogs are very susceptible to the 'Clever Hans' effect. A study was done with 18 trained detection dogs, with various forms of targets to see if the dogs would alert. None of the targets contained drugs, but the officers were told that some did. In some cases, they were told that targets marked with red paper were the real ones. The dogs alerted falsely more than 80% of the time, and 100% of the time when the targets were marked with red paper.

So essentially, if a cop believes you are guilty, the dog will pick up on his subconscious clues and alert without smelling a target smell. It's a seach-without-a-warrant-free-card, and they should not be used to grant warrants or to show probable cause.

[Diana Hibbard LoCascio]

03:26 PM on 01/07/2012

If the dog was able to sniff the pot, or whatever illegal substance, from beyond the property itself, then I think it should be legal. If the dog had to go on the property to sniff it, then they should need a warrant to get the initial sniff. This article does not spell out enough of the details to have a clear opinion on it.
FWIW - I am not opposed to legalizing marijuana for medicinal purposes at all and would be ok with making it legal in general if there were controls on it. I was just answering the question from a privacy point of view. Once your illegal scent is enough to carry over your property line, onto public property, or private property with the owner's permission, then law enforcement should be able to pursue it legally with a warrant that should be easily obtained (such as over the phone). I don't think one should worry about what brought the law enforcement to be near the property. If you don't want to be busted, then don't commit the crime.
If you want marijuana legalized, then work towards that goal but play by the rules in the meantime.

[FLFan]

04:49 PM on 01/07/2012

A valid point, but what do you do about police officers who take the dog on the property unobserved, then leave the property and claim the dog was outside the property lines? Do you make the dog wear a camera while on duty (every minute) to ascertain where, exactly, he picked up the scent? (And yes, I'm insinuating that cops do not always adhere to the rules.)

[Alan Light]

03:15 PM on 01/07/2012

Dogs have 80% failure rates and higher, depending on the handler.

http://reason.com/archives/2011/02/21/the-mind-of-a-police-dog/1
http://www.abc.net.au/unleashed/3728678.html

[Mark Clemons]

03:01 PM on 01/07/2012

was the intent of the officers to investigate a particular place or person? or was this a chance encounter, this should be a slam dunk, glad to live in a country that has checks and balances

[zombywulf]

02:52 PM on 01/07/2012

Put the dog on the stand and let him explain his probably cause.

[Obi Wan Nurnberger]

02:49 PM on 01/07/2012

so, this is illegal search, right? warrantless is warrantless?

[Floyd Miller]

02:47 PM on 01/07/2012

New ruling by SCOTUS: Dogs are people.

[zombywulf]

02:52 PM on 01/07/2012

Don't give the PETA Loons any ideas

[Obi Wan Nurnberger]

02:53 PM on 01/07/2012

also: people are dogs. companys are people, therefore companys are dogs also. dogs can be companys?

[fetchmasters]

01:11 PM on 01/07/2012

OK, take a close look at the picture of Franky. He looks a bit strung out.

[Alisa Neely]

07:15 PM on 01/07/2012

lol.....after sniffing enough drugs.....that would be possible.....lol.

alisa

[itschuck2c]

08:56 PM on 01/06/2012

I have seen police sniffing dogs in action where I work. They have to be directed.. they have to be transported..get the picture?

[dasherdog]

07:54 PM on 01/06/2012

Ahhh Franky...what a good looking dog you are...

[LOOKFORTHETRUTH]

07:54 PM on 01/06/2012

Why pot is illegal. Thank the Democrats.
The Players: FDR (D) was President, House Speaker Rayburn (D).
President Franklin Roosevelt was reelected in the largest landslide election in this country's history till then. He brought with him two Democrats for every Republican, all, or almost all of them pledged to that package of economic and social reform legislation we today call the New Deal.
The Marijuana Tax Act of 1937 & marijuana prohibition
During the congressional “debate” a republican congressman from upstate New York stood up
and asked two questions, which constituted the entire debate on the national marijuana
prohibition. First he asked "Mr. Speaker, what is this bill about?"
House Speaker Rayburn replied, "I don't know. It has something to do with a thing called
marihuana. I think it's a narcotic of some kind."
Next the New York congressman asked "Mr. Speaker, does the American Medical Association
support this bill?"A congressman who was on the congressional committee and who later went on to become a
Supreme Court Justice, stood up and replied “Their Doctor Wentworth came down here. They
support this bill 100 percent." It wasn't true, but it was good for the bill passed to be passed on
“tellers”, without a recorded vote.
In the Senate the bill was passed without any debate or even a recorded vote. The bill then went
to President Roosevelt's desk and was signed into law.
Thus began the dark age of Marijuana prohibition in the United States.