Drug Dog Search
Drug sniffing dogs have been around for decades, and we all have seen and possibly had some experience with them. Historically the Courts have given a lot of leeway into the use of these dogs with regard to drug interdiction and enforcement. However, a recent decision by the United States Supreme Court has finally put a restriction on the use of drug sniffing dogs by law enforcement.
In Florida v. Jardines, the court upheld a ruling by the Florida Supreme Court that the area immediately around a person’s home, such as a porch, side garden, etc., is subject to Fourth Amendment protections against searches, and that using a drug dog to sniff around constitutes a search. This would lead one to also believe that simply having a drug dog sniff at individual doors in an apartment complex would require a search warrant, but this has not been tested in the courts since the Jardines decision.
In the Jardines case, police officers walked to the front door of Joelis Jardines’ house with a drug dog after they were tipped that he was growing marijuana inside. “When it comes to the Fourth Amendment, the home is first among equals,” Scalia wrote. While it’s perfectly acceptable for friends and strangers alike to walk up a path to a house and knock on the door, “introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else,” the ruling says. This would lead one to believe that the action itself wasn’t at issue, but rather the intent of the action, and is there any other intent than performing a search when a law enforcement officer walks a drug dog up to a door?
In the Court’s concurring opinion, written by Justice Elana Kagan, and signed by Justices Sonia Sotomayor and Ruth Bader Ginsburg, further asserts that using the dogs without a warrant is an invasion of privacy, and going as far as comparing it to peering in windows from the porch using binoculars. “Here, police officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted,” Kagan wrote. “Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell).”
The breakdown of which Justices made up the two sides in the 5-4 ruling came as a surprise, with Justice Stephen Breyer breaking with his other liberal colleagues to join Chief Justice John Roberts and Justices Samuel Alito and Anthony Kennedy in opposing the decision. While the more conservative members of the Court, Justices Scalia and Thomas, sided with the historically liberal minded Justices in the majority.
“Dogs have been domesticated for about 12,000 years; they were ubiquitous in both this country and Britain at the time of the adoption of the Fourth Amendment; and their acute sense of smell has been used in law enforcement for centuries,” Alito wrote in the dissent. “The Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash.” If an average person can approach the door with a dog without being considered a trespasser, Alito reasoned, so then should the police be able to.
The flaw in this line of reasoning is thinking of police drug dogs as just another domesticated dog. K-9’s and drug sniffing dogs are very specialized and go through time consuming and expensive training regimens. The thoughts expressed by the dissenting Justices would be like a person saying a general purpose farm horse is the equivalent of a Kentucky Derby thoroughbred, or comparing a Polaroid camera to the Hubble telescope. These Justices are doing a disservice to these fine animals, and their handlers, in attempting to minimize who and what they are.
This decision makes it clear that the use of a drug dog violates a person’s privacy if they get too close to a residence — unless the cops get a warrant first. If you or your loved ones have been charged with a crime involving the use of a drug dog by law enforcement, contact the attorneys at Hepworth, Murray & Associates. Their experienced criminal defense attorneys can sit down with you for a free 30-minute consult to go over the options you may have.