Supreme Court Takes Drug-Sniffing Dog Case

The Supreme Court has a chance to keep the Fourth Amendment from going to the dogs. Today it agreed to hear the case of Florida v. Jardines, in which it will decide whether police can use a drug-sniffing dog at the front door to a residence when they suspect the occupants of a drug offense but don't have a warrant.

The constitutional issue at stake is whether police must have probable cause — a belief that evidence of a crime will be found — before they may use a dog sniff at the front door of a suspected “grow house,” or a site where marijuana is being grown. The case grows out of a Miami police officer’s use of a drug-detecting dog, “Franky,” in December 2006 to follow up on a “crime stoppers” tip that the house was being used to grow marijuana plants.

The Florida Supreme Court ruled that police needed to have a probable cause belief in wrongdoing before they could use the dog at the home, on the premise that the drug sniff was a “search” under the Fourth Amendment.

The Florida opinion is here, the state's Petition for Cert is here, and the opposing brief is here. [More...]

The accuracy and reliability of the canine sniffs are lower than many think. The privacy interest in the place to be searched is more important than the goal of those searching. I think dog sniffs of a residence are just as much searches as are thermal imaging devices which the Supreme Court in Kyllo held require a warrant under the Fourth Amendment.

Here's a good law review article on the topic, by Leslie Lunney. An excerpt:

The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.

Police employ drug-detection dogs in public locations, such as airports, as a quick means of determining whether luggage contains contraband. In United States v. Place, the U.S. Supreme Court explained that the use of drug-detection dogs to sniff luggage in a public location was not a "search" under the Fourth Amendment because of the accuracy and limited intrusiveness of the canine sniff technique. The Place Court likely reached this conclusion because the background understanding of the day was that detection dogs were the ideal sensing tool because, in the rare case of a mistake, the dog's error was actually a false negative. Therefore, any mistake by a drug-detection dog worked to the benefit of the luggage owner.

Despite recent evidence that drug-detection dogs are inaccurate a surprising percentage of the time, the Court in Illinois v. Caballes extended the warrantless use of the canine sniff technique to a lawfully stopped vehicle. The impact of the Caballes decision has been felt far beyond vehicle sniffs, however. Lower courts have taken the Place and Caballes decisions as a signal that canine sniffs are per se nonsearches and that it is therefore permissible to conduct suspicionless canine sniffs of homes.

A Chicago Tribune study last year detailed the accuracy problems with canine sniffs during traffic stops.

A Tribune analysis of three years of data for suburban departments found that only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia.

Another good read: Radley Balko's, The Mind of a Police Dog.

One more quote from Leslie Lunney's law review article, on the guess-work involved in the use of drug sniffing dogs:

Studies show that drug-detection dogs alert not to the illegal drug itself, but instead to a contaminant or by-product in the drug. In fact, detection dogs may not be able to detect the so-called ultrapure forms of drugs, such as cocaine and heroin, because of the extremely low vapor pressure of the unadulterated drug.
As a result,
With cocaine, for example, it appears that detection dogs do not actually alert to the cocaine itself because the drug is a topical anesthetic that “deadens olfactory senses.” Instead, the detection dog likely alerts to methyl benzoate, a high vapor pressure by-product of cocaine that can occur naturally or as a result of processing. Significantly, although methyl benzoate is a cocaine by-product, the molecule is also commonly found in everyday consumer products likely to be stored in a home, such as “solvents, insecticides, [and] perfumes.” In other words, drug-detection dogs likely alert to an entirely legal substance, methyl benzoate, which allows the human police officer to infer that contraband is also present.
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  • Display: Sort:
    Front Door ? (5.00 / 0) (#1)
    by ScottW714 on Fri Jan 06, 2012 at 04:03:40 PM EST
    I would think the property line is where the dog or any other ridiculous evidence gather devise would have to stay including the cops if their intention is to gather evidence.

    A dog at the front door to me is as intrusive as the cops looking in my windows.  I would think has to vary from state to state as well.

    Tree cams, Utility Pole cams, GPS bumper tags, (5.00 / 0) (#6)
    by Mr Natural on Fri Jan 06, 2012 at 05:46:05 PM EST
    infra red cams to peep through your walls at the heat emitted by a grow-op's thousand watt high pressure fluorescent bulbs.

    There's a veritable hog wallow of high tech for your local prying pigs.


    I have an idea. (5.00 / 1) (#8)
    by lentinel on Sat Jan 07, 2012 at 03:18:18 AM EST
    We should insist on the development of integrity-sniffing dogs.
    All prospective candidates for public office shall be required to standing at attention, hand over heart, while Daisy gives a sniff or two to verify that the candidate has no lingering ties to odoriferous corporate interests.

    Seems no more invasive to me than knock and (none / 0) (#2)
    by oculus on Fri Jan 06, 2012 at 04:42:49 PM EST
    talk assuming next step is affidavit in support of S/W request absent exigent circumstances.

    Exigent circumstances... (5.00 / 0) (#3)
    by kdog on Fri Jan 06, 2012 at 04:54:56 PM EST
    like rustling noises?

    I'm afraid it's not looking good for our dear 4th with this court, see Kentucky v King.  


    You are more up to date on crim procedure (none / 0) (#4)
    by oculus on Fri Jan 06, 2012 at 05:01:21 PM EST
    jurisprudence than I.

    What is the Intention ? (5.00 / 1) (#5)
    by ScottW714 on Fri Jan 06, 2012 at 05:07:31 PM EST
    To tell me keep it down or gather evidence against me ?  If they so happen to see something, but weren't looking, that's totally different then coming on, in search of something without a search warrant.

    I shouldn't have to put up a razor wire to keep the cops from coming on my property to gather evidence against me without a warrant.


    The property line should be important. (none / 0) (#7)
    by Gerald USN Ret on Fri Jan 06, 2012 at 11:00:46 PM EST
    The property line should be important.  The dog shouldn't be brought up to the door.

    In the public street at a car, there is a difference.  The police can do what they want there.

    And yes there are DOG ALERTS where nothing of importance is eventually found, but these alerts should not be discounted any more than a HUMAN ALERT, calling and saying they heard a cry, or a shot, or there is suspicious activity because many of these HUMAN ALERTS don't pan out either.

    Dogs Are Not Reliable (none / 0) (#9)
    by john horse on Wed Oct 31, 2012 at 08:52:28 PM EST
    Re: A Tribune analysis of three years of data for suburban departments found that only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia.

    Why don't they just flip a coin to determine whether they can search a person's home?  They may get better odds of being right?