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Diane Dimond

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Sniffing Out Justice -- But Is it Legal?

Posted: 11/15/2012 11:33 am

Can a dog violate your constitutional rights? That's right -- I said a dog.

No, this is not a trick question. It is borne of a law enforcement situation so serious that the state of Florida has been joined by more than 20 other states in asking the U.S. Supreme Court to render a decision on the matter.

Here's the deal. The high court recently agreed to hear two separate cases from Florida in which police dogs, trained to sniff out illegal drugs, alerted their human handlers to the presence of drugs. The question currently pending before the court is: were these drug busts conducted legally?

One instance occurred outside a private home near Miami. Officers had gotten a tip that marijuana was being grown inside the home of Joelis Jardine. After a K-9 unit Labrador retriever named Franky alerted at the front door one officer waited with the dog while the other went to get a search warrant. Inside, police found multiple pot plants. Jardines was arrested for possessing more than 25 pounds of marijuana and for illegally diverting the electricity needed to grow the plants under special lights. His lawyer argued that Jardines's constitutional rights were violated by an illegal search and seizure. The Florida Supreme Court agreed.

The second case involved a seemingly routine traffic stop in Bristol, Florida during which the police officer thought Clayton Harris seemed awfully sweaty and nervous. The police dog at this scene, a German Shepard named Aldo, did what is called "a free air sniff" around the outside of the truck and zeroed in on the driver's side door handle. Inside the vehicle the officer found a couple hundred pseudoephedrine pills and 8,000 matches -- ingredients for making methamphetamine. Harris, pleaded no contest but, ultimately the Florida Supreme Court ruled against the legality of the police search saying the state had failed to prove that Aldo the dog was a reliable drug detector or that his handler had enough experience with a K-9 partner.

That wasn't an issue with Franky's situation at the house in Miami. That K-9 sleuth already had almost 400 positive alerts under his collar and had helped seize about a ton of marijuana and 34 pounds of cocaine and heroin. Good boy! (Although as regular readers know I advocate the legalization, regulation and taxation of marijuana.)

The Florida Supreme Court found a completely different problem with Franky's actions at the Jardines house. The state court ruled it wasn't legal for a canine to sniff outside a home without his human getting a search warrant ahead of time. In other words, the Florida judges ruled, Franky's very first sniff constituted a violation of the U.S. Constitution and Jardines' fourth amendment rights governing search and seizure. They called it an, "unreasonable government intrusion into the sanctity of the home."

So the two questions now before the United States Supreme Court in Washington: How qualified must a dog be to do a legitimate sniff and is a trained police dog allowed to sniff outside a home without a warrant?

You might think these questions are somehow strange for our highest court in the land. They are not. In fact, the U.S. Supremes have already ruled on doggie-search-issues. They previously decided it is legal for dogs to sniff luggage at airports or open containers on street corners. But right outside someone's private home? That may turn out to be completely different in their eyes.

During the recent arguments on Franky and Aldo's searches, Justices Ruth Bader Ginsburg and Antonin Scalia had very pointed questions about home searches. Ginsburg asked Florida's lawyer, Gregory Garre, what the next logical step might be if such police actions were allowed to continue. What would stop officers from taking their drug sniffing dogs into neighborhoods with drug problems and then going door to door to door to try to find illegal drugs? Justice Scalia reminded the lawyers about the rule that police are not supposed to come within the area immediately surrounding a home in order to get a better look inside, say, with a pair of binoculars. Why, he asked, was using a dog any different?

Attorney Garre answered that the law allows a police officer to walk right up to the front door of a home, knock and talk to whoever is inside in an effort to uncover evidence of a crime. Why, he asked, is it any different if the officer has a dog come along?

There's no telling when the high court will make its final decision on these cases. In the meantime, it is safe to say the Attorneys General in more than 20 states are anxiously awaiting the final decision because with budget and staffing cutbacks K-9 units have become a necessary norm in police departments nationwide. I dare say, you would be hard pressed to find an officer who didn't see these animals as full-fledged law enforcement partners and necessary tools in fighting crime.

Dogs also cost a whole lot less to train and employ than human beings. Wonder if the court will take that into account when making their final decision? I'm no lawyer but I doubt there's room in the legal discussion for any real-world considerations.

Diane Dimond can be reached via her web site: Diane@DianeDimond.net

 

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