When does use of a drug-sniffing dog violate the Fourth Amendment?
April 5, 2013
Here are the stories of Franky and Aldo, two drug-sniffing dogs whose skills put them at the heart of two U.S. Supreme Court cases about the Fourth Amendment’s protection again unreasonable search and seizure.
Acting on a tip, law enforcement officers in Florida took Franky, a drug-detection dog, to a house where marijuana plants allegedly were being grown. On the porch, Franky gave a positive alert for drugs. Police then obtained a warrant to search the house and found marijuana plants.
The occupant, who was charged with drug trafficking, got the evidence suppressed, arguing that the sniff by Franky was an illegal search. The case made its way through the Florida state courts. Ultimately, the Florida Supreme Court agreed with the defendant and said use of a drug-sniffing dog is a government intrusion into the privacy of a home.
The case, Florida v. Jardines, wound up at the U.S. Supreme Court, where justices upheld the Florida ruling by a 5-4 vote.
The Fourth Amendment says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause..." This means that we are protected from unreasonable searches and seizures by government officials, such as the police. Law enforcement has to have probable cause for a search and must get a warrant. A search can include a frisking by a police officer, a blood test or a search of a home or car.
Writing for the majority, Justice Antonin Scalia said the Fourth Amendment protection against unreasonable search and seizure extends to a house’s surroundings. “This right would be of little practical value” if the police could stand on someone’s porch or in a yard and freely look for evidence, Scalia wrote.
The opinion said Franky’s nose was considered to be a detection device, which can’t be used by police to “see” inside a home without a warrant. Scalia referred to a 2001 Supreme Court ruling in Kyllo v. United States that said police could not use heat-detection devices outside a house to detect whether marijuana plants were being grown inside. Use of such technology violates people’s expectation of privacy inside their homes, he wrote.
In a concurring opinion in Franky’s case, Justice Elena Kagan agreed that it was an unconstitutional search, but because of the right to privacy as well as trespass. A person’s home, she said, is not only his castle but “his most intimate and familiar space.”
In a dissent, Justice Samuel Alito pointed out that a police officer also detected the smell of marijuana outside the house. “The conduct of the police officer in this case did not constitute a trespass and did not violate respondent's reasonable expectations of privacy,” he wrote.
Aldo’s case involved a truck, not a home. His handler, K-9 Officer William Wheetley, had pulled over a driver for a routine traffic stop. Because of the driver’s behavior, Wheetley asked for permission to search the truck but was refused. Aldo stepped in and gave an alert at the driver’s side door handle. Wheetley decided Aldo’s reaction gave him probable cause for a search, which turned up ingredients for making methamphetamine. Charged with illegal possession of the ingredients, the driver tried to suppress the evidence by questioning Aldo’s training and performance.
The Florida Supreme Court ruled that Wheetley lacked probable cause to search the truck based on Aldo’s dependability. “[W]hen a dog alerts,” the court wrote, “the fact that the dog has been trained and certified is simply not enough to establish probable cause.” The court said police must provide detailed evidence of the dog’s reliability before establishing probable cause for a search.
However, Aldo won the day in the U.S. Supreme Court. The justices decided in a unanimous vote that if a detection dog has passed a certification or training program, that’s good enough to trust his alert.
“The question – similar to every inquiry into probable cause – is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime,” Justice Elena Kagan wrote in Florida v. Harris. “A sniff is up to snuff when it meets that test.”
What do you think?
Do you agree with the Supreme Court’s rulings in Franky’s or Aldo’s case? Is a dog’s sniff a search? Should using a detection dog require probable cause and a warrant? Does using a drug-detection dog outside a house violate the occupant’s reasonable expectation of privacy? Is an alert by a drug-detection dog enough to establish probable cause for a search? Join the discussion!
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