The U.S. Supreme Court heard arguments in two cases Wednesday testing what, if any, limits there are to the police using drug-sniffing dogs. By the close of two hours of argument, it looked very much as though the court would rule against the use of drug-sniffing dogs without a warrant in one case, but not the other.
The protagonists in this story are Franky and Aldo. Franky, a chocolate Labrador, had a near-spotless record as a drug-detection dog in Miami-Dade County. The question is whether his human police partners violated the Fourth Amendment's ban on unreasonable searches. After police got an anonymous tip, they took Franky up to the front porch of a private home, and when he alerted to drugs inside, the police used that as justification for getting a search warrant.
Aldo had a less august dog-detection pedigree, and the question was whether his qualifications as an expert were sufficient to justify the sniff of a truck.
Lawyer Gregory Garre represented Florida police, prosecutors and the dogs in both cases, starting with the one that involved a dog sniff at the front door of a private home.
Garre's argument, in defense of Franky's sniff at the home, was that Franky was trained only to look for drugs. In three prior cases, Garre reminded the jusices, "the court has emphasized that a drug-detection dog reveals only the presence of contraband, and that nobody has a legitimate expectation of privacy in that."
But justices of every ideological stripe hammered Garre on that argument. Justice Anthony Kennedy said he could not accept as a reasonable argument the premise that if there's contraband, "all the rules go out the window."
Justice Sonia Sotomayor added that if you have no expectation of privacy for contraband, "why bother with a search warrant" at all.
Justice Ruth Bader Ginsburg chimed in that if a dog sniff of one home is OK, the police could just go down the street with a dog, going door to door. Garre responded that the police could indeed do that, just as they can knock on every door. But limited resources, he maintained, would prevent such dragnet searches.
For Justice Antonin Scalia, the place of the dog sniff mattered, because a home is private. "It isn't sniffing in the abstract," he said, "it's sniffing at the front door."
Garre emphasized that there exists an implied consent for police, Girl Scouts or trick-or-treaters to go up to the front door. But Ginsburg interjected, saying there is no implied consent for a policeman to come up with a dog when "the only purpose of the dog is to detect contraband."
Justice Stephen Breyer also took issue with Garre's argument, saying that people do have the expectation that someone can come to the door, but not with "a large animal" who spends five to 15 minutes going back and forth sniffing the premises.
Finally, Justice Elena Kagan observed that the court has repeatedly protected the home from technological surveillance without a warrant. To that, Garre responded, "Franky's nose is not technology." Kagan pressed the question, wondering if a machine were invented to detect drug odors from outside a house, would that be permissible without a warrant, too.
No, replied Garre. Dogs sniffs are different than machines because they involve the dog's "God-given sense of smell."
Garre's adversary, public defender Howard Blumberg, representing the accused marijuana grower, also got quite a grilling from the court. Kennedy called Blumberg's argument that people have a right to keep secret anything they want within their home "equally unacceptable" to Garre's argument.
Blumberg was more successful with his second argument that the dog sniff at the front door of a home is a trespass on private property. He cited cases as far back as the 1700s that stand for the proposition that a man's home is his castle.
The Supreme Court has never ruled on dog sniffs at a private home. It has said dog sniffs are permissible without a warrant in other spheres cars stopped on the road for other reasons, for instance, or luggage at airports.
But, as Wednesday's second argument illustrated, even when a search could be legal, there is a question as to whether the dog has adequate credentials for police to rely on. In this case, Aldo, a German shepherd, sniffed and alerted for drugs in a truck stopped for an expired license plate. Police then searched the truck and found chemicals used to make methamphetamines. Two week later, however, when police again stopped the truck, the dog again alerted for drugs, but this time, no drugs were found.
Aldo had completed 120 hours of basic drug-detection training two years earlier, but the dog had not been recertified in 16 months a defect that lawyer Garre acknowledged was "a lapse."
Public defender Glen Gifford told the justices that since there is no national or state certification standard for drug-detection dogs, judges should look, among other things, to field records of the dog's other searches to determine his reliability.
The justices, however, seemed to think that was a step too far.