The U.S. Supreme Court heard arguments yesterday in two cases involving drug sniffing dogs.
In Florida v. Jardines, 11-564, the court is considering whether police officers in Miami violated the 4th Amendment when they brought Franky, a dog trained to identify the odor of narcotics, to nose around the exterior of a private home without a warrant. Franky detected the odor of marijuana, and police obtained a warrant to search the house. That led to felony charges against Joelis Jardines. The Florida Supreme Court upheld the decision to suppress the pot, finding that the police tactic of using Franky to smell around a suspected grow house without a warrant amounted to an unconstitutional search. The U.S. Supreme Court accepted review of the case, which tests the outer boundaries of permissible police use of narcotics sniffing dogs.
In 2005, the Supreme Court approved warrantless drug sniffs of cars during routine traffic stops in the case Illinois v. Caballes. However, the sanctity of the home has always been the core concern of 4th Amendment jurisprudence. During oral argument some justices questioned whether a warrantless house sniff passed the smell test. Justice Scalia, in particular, likened the case to Supreme Court precedent which held that police cannot without a warrant, intrude on the “curtilage” (immediately surrounding areas) of a home to see what they could not see from the public sidewalk.
Other justices likened Jardines to the 2001 case Kyllo v. United States, in which the Court put limits on law enforcement’s use of technology, such as thermal imaging devices, to scan the exterior of a home to obtain evidence that the residents were growing marijuana inside.
Justice Kagan was skeptical of Florida’s argument that there was a fundamental distinction between using Franky’s “god-given” nose to conduct the search as opposed to a mechanical device to gain the same information. Kagan asked whether police could walk up to doors with a “smell-o-matic” device that gleaned the same information as a drug sniffing dog.
Justice Ginsburg, likewise, didn’t like where Florida’s arguments led: She questioned whether, under their logic police could in “a neighborhood that’s known to be a drug-dealing neighborhood, just go down the street, have the dog sniff in front of every door, or go into an apartment building?” Gregory Garre, who represented Florida, agreed that would be constitutionally permissible.
In Florida v. Harris, the court will consider whether drug sniffing dogs are sufficiently reliable that an “alert” from such a dog should be considered probable cause to conduct a search. The Florida Supreme Court held that the government must provide evidence to establish the reliability of the dog’s alert including “the dog’s training and certification records, … field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer.” The Supreme Court seemed disinclined to mandate certain qualifications before a dog could be deemed sufficiently reliable.
A decision is expected on both cases by summer.