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April 2013

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Can Drug-Sniffing Canines Confiscate Your Cannabis?

Written by , Posted in General

WRITTEN BY RIK SAULT, GUEST CONTRIBUTOR

20130326-132908.jpgSame-sex marriage is not the only hot-button topic on the Supreme Court’s desk. Just before its historic two-day scrutiny of the marriage issue, the Court handed down a decision limiting the ability of police to use drug-sniffing dogs around a person’s home.

In ‘Florida v Jardines,’ a detective had a trained dog sniff near the base of the front door of the defendant’s South Florida home, after receiving an anonymous tip that there was marijuana growing inside. The detective obtained a search warrant after the dog “alerted” an issue. Upon searching the home, police found more than 179 live marijuana plants, and the defendant was arrested for an attempt to escape out the back door. He was charged with marijuana trafficking and grand theft for stealing electricity to run the highly sophisticated grow operation.

Both the trail and appellate Florida courts suppressed the evidence, finding that the police engaged in a Fourth Amendment search without probable cause. The Supreme Court agreed. By a 5-4 vote, the Court held that the use of a trained police dog to investigate a home and its immediate surroundings constitutes a “search” within the meaning of the Fourth Amendment — which prohibits unreasonable searches and seizures, and gives US citizens a right of privacy. Therefore, under the Court’s holding, bringing a trained dog near the home requires a warrant.

Writing for the majority, Justice Scalia explained, “A police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do… . But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else.”

Scalia elaborated, “To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to -– well, call the police.”

According to the majority opinion, using a drug-sniffing dog outside someone’s front door is no different from using thermal imaging technology to peer inside a home without a warrant, a practice that the Court rejected in 2001.

In a concurring opinion, Justices Kagan, Ginsburg and Sotomayor agreed with Scalia’s reasoning that the home is the “first among equals” under the Fourth Amendment, but they would also limit the use of drug-sniffing dogs based on an individual’s reasonable expectation of privacy.

Kagan, the author of the concurrence, offered the following analogy to “clinch” the case on both privacy and property grounds:

“A stranger comes to the front door of your home carrying super-high-powered binoculars. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners… In just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one. Has your ‘visitor’ trespassed on your property, exceeding the license you have granted to members of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your “reasonable expectation of privacy,” by nosing into intimacies you sensibly thought protected from disclosure? Yes, of course, he has done that too.”

Justice Alito authored the dissent, which was joined by Chief Justice Roberts, as well as Justices Kennedy and Breyer. According to the dissent, the detective in Jardines did not conduct a Fourth Amendment search simply by bringing a trained dog to the defendant’s door. The dissenting opinion focused, in part, on the long history of police work by dogs. Alito further opined that no one reasonably expects privacy regarding odors emanating from the home that may be smelled from a nearby location. In rejecting the notion that a line should be drawn between the olfactory capabilities of humans and those of canines, Alito noted that some humans have a much better sense of smell than others, and some humans are trained to detect and distinguish certain odors. He went so far as to cite an article from Johns Hopkins University Magazine entitled A Primer on Smell.

Alito’s dissent evinced particular alarm by Kagan’s suggestion that people may have a reasonable expectation of privacy with regard to odors even outside the home. He opined that police should not be required to have a warrant before acting on the “alert” of a trained dog on a public sidewalk or in the corridor of a building to which the police and their dogs have gained lawful entrance. Alito also worried about limiting the ability of police to use dogs for detecting explosives or a violent fugitive. He found “no ground for hampering legitimate law enforcement” in this way.

Despite its analysis, the dissent does not offer a persuasive argument for the proposition that “legitimate law enforcement” is hampered by requiring a warrant before bringing a trained dog near one’s home. If police really think it is worth the effort to drop by your place with a drug-sniffing dog, then the least they can do is some good, old-fashioned police work, like a stake-out or procuring a reliable snitch. In Jardines, if the investigating detective’s anonymous tip was sufficiently reliable, he easily could have obtained a warrant before bringing a dog to the defendant’s home; I doubt those 137 marijuana plants were going anywhere with quickness.

The majority — a mix of conservative and liberal Justices — surely got it right. Requiring a warrant before allowing a nosy dog to snoop around one’s home certainly constitutes the right to privacy protected by our Fourth Amendment. Otherwise, police would be free to brazenly roam through people’s yards and apartment building hallways with dogs ready to sniff out secrets. And that just seems un-American.

A copy of the full decision can be found HERE