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Supreme Court to consider how and when police can use drug-sniffing dogs

The US Supreme Court considers Wednesday whether the Florida Supreme Court was correct in making it harder for law enforcement to use dogs to discover illicit drugs in a home or vehicle.

By Staff writer / October 30, 2012

US Customs Canine Enforcement Officer William Dalgarn follows as his dog Cordon sniffs for drugs and explosives in cars entering the US from Mexico at the Palomas border crossing in Columbus, N.M.

Tony Avelar/The Christian Science Monitor/File

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The US Supreme Court is going to the dogs on Wednesday in a pair of important cases that ask the justices to decide how and when police are able to use dogs specially trained to detect narcotics.

Both cases involve drug investigations in Florida, but their resolution could affect the use trained dogs across the United States.

In both instances, the Florida Supreme Court issued rulings that make it harder for law-enforcement officials to use dogs to discover illicit drugs in a home or vehicle.

Prosecutors in Florida, the Obama administration, and more than 20 state attorneys general are urging the high court to overturn the Florida Supreme Court and establish bright-line rules allowing police to use dogs during traffic stops as well as at the front door of a private home.

“This case is critically important to the fight against illegal narcotics,” Carolyn Snurkowski, Florida assistant deputy attorney general, said in her brief to the court.

Lawyers for defendants who were targeted for dog sniffs disagree. The courts, they say, should be suspicious of the increased use of dogs as a law-enforcement tool.

“The dog may be man’s best friend, but as sources of probable cause, canine alerts are subject to error and misinterpretation,” wrote Glen Gifford, Tallahassee assistant public defender, in his brief urging the justices to uphold the Florida high court.

“Some dogs are more accurate than others, and, like people, dogs have good days and bad days,” he said.

The justices will be hearing the two Florida cases back to back Wednesday morning. Each case explores a different question related to dog sniffs.

The first case, Florida v. Jardines (11-564), asks whether police acted properly when they led a drug-sniffing dog to the front door of a house suspected of being used to grow marijuana. The dog, Franky, signaled his handler that he smelled narcotics.

The dog’s “signal” was combined with other evidence to provide the probable cause used to obtain a search warrant from a local judge. A search revealed that the house was, in fact, being used to grow marijuana.

The second case, Florida v. Harris (11-817), asks whether a police dog’s signal to its handler outside a pickup truck during a traffic stop established probable cause to justify an immediate, warrantless search of the truck.

In that case, no drugs were found, but the sheriff’s deputy discovered key ingredients to make methamphetamine. The driver was charged with unlawful possession of 200 pseudoephedrine pills.

In both cases, the suspects challenged the legality of the dog-sniff-initiated search.

Joelis Jardines’s lawyers argue that police needed a warrant before bringing the drug-sniffing dog to their client’s front door.

While the Supreme Court has upheld the use of drug-sniffing dogs at airports and during traffic stops, it is entirely different for officials to bring a trained dog onto private property to try to smell air escaping from the interior of a home, the lawyers say.

The high court has recognized there is a greater expectation of privacy within one’s home. Police should not be allowed to use a dog’s sensitive nose to intrude into that private sphere, they say.

“Under this interpretation of the Fourth Amendment, police officers would be free to randomly take a narcotics detection dog up to the front door of selected houses in a suburban neighborhood,... or walk a narcotics dog up and down the halls of a school to sniff the students passing by,” wrote Howard Blumberg, Miami assistant public defender, in his brief.

But a dog sniff does not threaten to reveal any legitimate private information from inside a home, Ms. Snurkowski says. “While a drug-detection dog may smell many different odors emanating from a source, it will convey only one thing: whether illegal drugs are present,” she wrote.

The dog is trained to identify only the presence of contraband. Since there is no Fourth Amendment right to privately retain quantities of illegal narcotics or other contraband in one’s home, she said, no privacy rights are threatened.

“There is no dispute that the sniff in this case occurred in an area where officers were lawfully present: on the ordinary walkway to the front door that visitors, delivery-persons, mailmen, and Girl Scout cookie sellers alike would have been expected to use,” Snurkowski said.

Mr. Blumberg replied in his brief that the purpose of the police presence at his client’s front door was substantially different from that of a Girl Scout.

 “A homeowner does not expect that such persons will approach the front door of the house for the purpose of trying to determine what is inside that house,” he said.

The second case involves the arrest of Clayton Harris in June 2006 in Florida’s Liberty County. Mr. Harris was pulled over by a sheriff’s deputy for driving with an expired license tag. Harris seemed nervous to the deputy, who asked if he could search the vehicle.

Harris said no.

The deputy then led his drug-sniffing dog, Aldo, around the pickup truck. Aldo signaled to the deputy that he detected the scent of narcotics on the truck’s door handle.

Citing the dog’s actions, the deputy then searched the inside of the pickup. He found the ingredients used to manufacture methamphetamine, although no drugs. The dog, however, was trained to detect the presence of methamphetamine and several other drugs, but not the ingredients.

A question in the case is whether the dog may have detected residue of methamphetamine on the truck’s door handle. Harris admitted that he was addicted to methamphetamine and was a regular user.

One issue is thus whether detection of narcotics residue is a valid justification for a warrantless search of a vehicle even if narcotics are not found.

That issue came into sharp focus a few weeks after the initial traffic stop, when the same deputy pulled Harris over again, this time for a faulty brake light.

Like the first stop, Aldo, again, approached the door handle and signaled the presence of narcotics. The deputy, again, searched the truck. He found an open bottle of liquor, but no drugs.

Harris’s lawyer, Mr. Gifford, discovered that Aldo’s certification as a drug detection dog had expired. The lawyer raised questions about the reliability of the dog and whether police should be required to prove a dog’s qualifications in court.

Florida officials argue that even the residual odor of narcotics should be enough to justify the warrantless search of a vehicle during a traffic stop.

“The fact that a vehicle occupant (like respondent) is a walking drug lab as far as a dog’s sense of smell is concerned hardly negates an officer’s probable cause to search a vehicle when a dog alerts to it,” wrote Washington lawyer Gregory Garre in his brief on behalf of the Florida Attorney General’s Office.

“Nor do individuals have a reasonable expectation of privacy in the residual odors of illegal contraband or activity once they hit the streets,” he said.

Decisions in the cases are expected by next June.

IN PICTURES: Dogs at work

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