High Tech (or Rather Low Tech) Squares Off with the Fourth Amendment, Round 6: The Supreme Court Delivers a Rap on the Snout to Franky, the Drug Sniffing Dog

We have written several times in this blog about the awe-inspiring technologies coming online for use by federal and state law enforcement and the threats that these technologies poses to Fourth Amendment rights. But in law enforcement, as in life, sometimes the old ways are still the best. In terms of detecting the presence of contraband narcotics, no new technology has yet to supplant the utility of a well-trained, properly handled drug-sniffing dog.

At least urban legend and the popular imagination have it so. It is widely credited that dogs are gifted with this ability. I am not enough of a scientist or veterinarian to explain why certain dogs have a knack for detecting drugs, how this works from a biological point of view or if, in fact, this is real or exaggerated. There is little literature on this point that I have been able to find, and what I have found, I must confess, I am hard pressed to understand. Yet, drug-sniffing and bomb-sniffing dogs are a fact of modern life, used around the world and they presumably yield results, at least sometimes.

Anyway, this brings us to the Supreme Court’s decision last week in Florida v. Jardine and Franky, the drug-sniffing dog. Also, decided this past February was another dog case, Florida v. Harris, which involved Aldo, the drug-sniffing German Sheppard. This mini-flurry of dog decisions is a bit odd, since there have been only two or three other decisions addressing the use of drug sniffing canines before these two Florida cases.

In the case of Franky, the police received a “crime stopper” tip that defendant Jardine was growing marijuana in his home. The police took Franky to the front door of Mr. Jardine’s house where he signaled the presence of drugs. This dog signal was used as the basis to obtain a search warrant and the contraband found in the search used to charge drug trafficking and other offenses.

Mr. Jardine moved to suppress the evidence seized arguing that the police’s use of Franky was itself a search and that this search had occurred without probable cause or a warrant. The Florida trial court agreed, as did the Florida Supreme Court.

The case went up to the United States Supreme Court, which also agreed. In an opinion by Justice Scalia, joined by Justices Thomas, Kagan, Ginsburg and Sotomayor, the Court held that the police had gathered evidence without a warrant in an area known as the “curtilage”, the vicinity immediately outside the defendant’s house. This physical intrusion was determinative. As Justice Scalia wrote, “When it comes to the Fourth Amendment, the home is first among equals.” The Amendment’s right to be secure in one’s home “…would be of little practical value if the state’s agents could stand on a home’s porch or side garden and trawl for evidence with impunity.”

Justices Kagan, Sotomayor and Ginsburg also wrote a concurring opinion indicating that they were prepared to reach the same result on privacy grounds. Justices Alito, Roberts, Breyer and Kennedy dissented.

The government did better in the Harris case involving Aldo, the German Sheppard. In that case a dog alert was held to be enough to justify the search of a truck belonging to a motorist stopped for having expired license plates.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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