Dog sniff unconstitutional? Supreme Court rules drug dog sniffs constitute illegal search

Dog sniff unconstitutional: Justice Antonin Scalia said a person has the Fourth Amendment right to be free from the government's gaze inside their home and in the area surrounding it, which is called the curtilage.

Joshua Roberts/Reuters
The steps of the Supreme Court are seen on March 26.

The Supreme Court ruled Tuesday that police cannot bring drug-sniffing police dogsonto a suspect's property to look for evidence without first getting a warrant for a search, a decision which may limit how investigators use dogs' sensitive noses to search out drugs, explosives and other items hidden from human sight, sound and smell.

The high court split 5-4 on the decision to uphold the Florida Supreme Court's ruling throwing out evidence seized in the search of Joelis Jardines' Miami-area house. That search was based on an alert by Franky the drug dog from outside the closed front door.

Justice Antonin Scalia said a person has the Fourth Amendment right to be free from the government's gaze inside their home and in the area surrounding it, which is called the curtilage.

"The police cannot, without a warrant based on probable cause, hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the home," Justice Antonin Scalia said for the majority. "And the officers here had all four of their feet and all four of their companion's, planted firmly on that curtilage — the front porch is the classic example of an area intimately associated with the life of the home."

He was joined in his opinion by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

On the morning of Dec. 5, 2006, Miami-Dade police detectives and U.S. Drug Enforcement Administration agents set up surveillance outside a house south of the city after getting an anonymous tip that it might contain a marijuana growing operation. Detective Douglas Bartelt arrived with Franky and the two went up to the house, where Franky quickly detected the odor of pot at the base of the front door and sat down as he was trained to do.

That sniff was used to get a search warrant from a judge. The house was searched and its lone occupant, Jardines, was arrested trying to escape out the back door. Officers pulled 179 live marijuana plants from the house, with an estimated street value of more than $700,000.

Jardines was charged with marijuana trafficking and grand theft for stealing electricity needed to run the highly sophisticated operation. He pleaded not guilty and his attorney challenged the search, claiming Franky'ssniff outside the front door was an unconstitutional law enforcement intrusion into the home.

The trial judge agreed and threw out the evidence seized in the search, but that was reversed by an intermediate appeals court. In April a divided Florida Supreme Court sided with the original judge.

The Supreme Court's decision upholds that ruling.

"A drug detection dog is a specialized device for discovering objects not in plain view (or plain smell)," Kagan wrote in a concurring opinion. "That device here was aimed at a home — the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the court holds today. Was it also an invasion of privacy? Yes, that as well."

The four justices who dissented were Chief Justice John Roberts, Justice Stephen Breyer, Justice Anthony Kennedy and Justice Samuel Alito.

It's not trespassing when a mail carrier comes on a porch for a brief period, Alito said. And that includes "police officers who wish to gather evidence against an occupant," Alito said. "According to the court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of the respondent's house by his dog, Franky. Where is the authority evidencing such a rule?"

Alito also said that the court's ruling stretches expectations of privacy too far.

"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 detectable by a dog, cannot be smelled by a human."

You've read  of  free articles. Subscribe to continue.

Dear Reader,

About a year ago, I happened upon this statement about the Monitor in the Harvard Business Review – under the charming heading of “do things that don’t interest you”:

“Many things that end up” being meaningful, writes social scientist Joseph Grenny, “have come from conference workshops, articles, or online videos that began as a chore and ended with an insight. My work in Kenya, for example, was heavily influenced by a Christian Science Monitor article I had forced myself to read 10 years earlier. Sometimes, we call things ‘boring’ simply because they lie outside the box we are currently in.”

If you were to come up with a punchline to a joke about the Monitor, that would probably be it. We’re seen as being global, fair, insightful, and perhaps a bit too earnest. We’re the bran muffin of journalism.

But you know what? We change lives. And I’m going to argue that we change lives precisely because we force open that too-small box that most human beings think they live in.

The Monitor is a peculiar little publication that’s hard for the world to figure out. We’re run by a church, but we’re not only for church members and we’re not about converting people. We’re known as being fair even as the world becomes as polarized as at any time since the newspaper’s founding in 1908.

We have a mission beyond circulation, we want to bridge divides. We’re about kicking down the door of thought everywhere and saying, “You are bigger and more capable than you realize. And we can prove it.”

If you’re looking for bran muffin journalism, you can subscribe to the Monitor for $15. You’ll get the Monitor Weekly magazine, the Monitor Daily email, and unlimited access to CSMonitor.com.