Supreme Court justices seemed ready Wednesday to adjust the legal leash on drug-sniffing dogs, in two high-profile cases arising out of Florida.
With a battery of pointed questions, justices voiced skepticism about a Florida Supreme Court ruling that imposed strict criteria for determining when a dog is qualified to help make a drug bust. At the same time, court conservatives joined liberals in suggesting that a police canine sniffing at the front door of a suspected drug house may be a search that triggers constitutional protections.
“It seems to me crucial that this officer went onto the portion of the house as to which there is privacy, and used a means of discerning what was in that house that should not have been available,” Justice Antonin Scalia said at one point.
The two cases heard separately Wednesday morning will help shape law enforcement agencies’ growing canine dependency. Twenty-four states – including Pennsylvania, Texas, Washington and Idaho – have sided with Florida law enforcement officials, noting in a legal brief that “drug-detecting canines are one of the essential weapons in the states’ arsenal to combat this illegal traffic.”
While tracking questions can lead court observers astray, a majority of the justices who spoke Wednesday sounded protective of the privacy inherent in a home. In a previous case that involved thermal imagers used to locate household marijuana-growing operations, the court said obtaining details of the home’s interior was a search that required a warrant under the Fourth Amendment. Similar reasoning could apply to a dog’s finely tuned nose, some justices hinted Wednesday.
“Doesn’t that mean that what’s in your home that’s not visible to the public has an expectation of privacy as well?” Justice Sonia Sotomayor asked attorney Gregory C. Garre, who’s representing Florida in both cases.
Garre’s response that people can’t expect privacy “when it comes to contraband” was flatly rejected by Justice Anthony Kennedy, who’s a frequent swing vote on close decisions. Kennedy and Scalia, both Republican appointees, joined Sotomayor and several other Democratic appointees in repeatedly challenging Florida’s case.
“When a police officer takes a narcotic detection dog up to the front door of the house, that is also a Fourth Amendment search because that is a physical trespass upon the constitutionally protected area . . . of the home,” added Howard K. Blumberg, a Miami-based assistant public defender.
Blumberg represents Joelis Jardines, who was living in south Miami-Dade County in 2006. Franky, a chocolate Labrador retriever who’s since retired, and his human partner with the Miami-Dade Police Department approached the Jardines’ home on Dec. 5, 2006. Franky sniffed at the front door and then sat down, an alert sign.
Police subsequently raided the house and found more than 25 pounds of marijuana. Justice Samuel Alito and Chief Justice John Roberts Jr. sounded sympathetic to the state’s cause.
“You may have an expectation of privacy in the marijuana plants, but you don’t have an expectation of privacy in the odor, because you’re emitting it out into the world, and it’s the odor that was detected,” Roberts reasoned.
The second case heard Wednesday involved Aldo, a German shepherd who was on patrol the afternoon of June 24, 2006, with his human partner from the Liberty County Sheriff’s Department in Florida’s panhandle. The deputy pulled over a pickup with an expired tag. Aldo alerted, and the deputy found 200 pseudoephedrine pills, which can be used to make methamphetamine.
A divided Florida Supreme Court subsequently ruled that Aldo’s alert was insufficient to show probable cause for a follow-up search, because of questions about the dog’s reliability. The state court spelled out a series of records that law enforcement agencies must be prepared to provide to demonstrate a drug-sniffing dog’s reliability. State officials call this burdensome, and a number of justices seemed to agree.
“Why is that the right list?” Justice Stephen Breyer asked. “I mean, what in the Constitution requires that list?”
Tallahassee-based assistant public defender Glen P. Gifford asserted that firm requirements are needed because “officers like to search so they can get probable cause so that they can advance their career,” but Scalia seemed to speak for other justices when he countered that officers “like to search where they’re likely to find something, and that only exists when the dog is well-trained.”
Justice Clarence Thomas, following his customary practice, remained silent throughout the oral arguments. Decisions in the two cases, Florida v. Jardines and Florida v. Harris, are expected by the end of the court’s term next June.