Is it a Search? : Analyzing Recent Supreme Court Dog-Sniff Decisions

By John Noland

           The dog drug-sniff has been a standby of narcotic police procedure for decades, and in situations ranging from SWAT-led busts to routine traffic stops.  The canine is a valuable asset to the modern police force, and its arguably intrusive nature has led to questions being raised about its legality.  Is a dog sniff an “ unreasonable search” that the Fourth Amendment protects against?  The Supreme Court examined this issue twice in the most recent judicial session in hearing the cases Florida v. Harris and Florida v. Jardines.  When taken in tandem, the verdicts offer a fairly conclusive answer on the constitutionality of using canines for drug detection.

            October 31, 2012 was a dog day, indeed, as the Supreme Court heard arguments for both cases.  Florida police officer William Wheetley and his dog Aldo were on patrol on June 24, 2006, when Wheetley pulled over a truck, driven by Clayton Harris, for an expired license plate.  Upon talking with the nervous Harris, and noticing an open can of beer, Wheetley allowed Aldo to perform a “free air sniff” (Florida v. Harris 5).   Wheetley decided he had probable cause to search the truck “based principally on Aldo’s alert,” which had occurred at the drivers’ side handle.  Upon searching the truck, the officer found a number of substances, “all ingredients for making methamphetamine.”  This suspicion was confirmed when Harris revealed that he “routinely ‘cooked’ methamphetamine at his house and could not go ‘more than a few days with using’ it” (Ibid).  Harris was charged with possession of pseudoephedrine, a common drug used for colds and allergies, for use in manufacturing methamphetamine.  During the trial, Harris moved to suppress the evidence because he felt Wheetley did not have adequate probable cause to conduct a search.  Both Wheetley and Aldo had completed drug detection courses, although separately, of 160 and 120 hours, respectively.  In the assessments conducted, Aldo performed “satisfactorily” on every training day (Ibid 6).  After the trial court found in favor of Wheetley, Harris appealed the case to the Florida Supreme Court, which reversed the lower court’s decision.  The appellate judiciary wrote that “the fact that the dog has been trained and certified is not enough to establish probable cause,” and thus of the need to show “how often the dog has alerted in the field without illegal contraband having been found” (Ibid 7).  In a unanimous decision, however, the Supreme Court reversed the lower court’s ruling.  Justice Kagan writes that “the better measure of a dog’s reliability thus comes away from the field, in controlled testing environments,” as supposed false-positives in the field may not actually be false, as in Aldo’s case (Ibid 11).  As Aldo was trained well enough in an established setting, his nose could be trusted in the field.  Thus, “because training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that showing, we agree with the trial court that Wheetley had probable cause to search Harris’s truck” (Ibid 14).  On a public road, drug-detection canines are a valid means of attaining probable cause, so long as the law enforcement can prove they are reliably effective.

            The second of the two cases, Florida v. Jardines, did not lend itself to such a cohesive ruling.  Much like the previous situation, this 2006 case involved a drug-sniffing dog in Florida, with the critical difference being that this incident took place at a private residence, which provides a unique and important distinction.  A month after receiving an anonymous tip, Miami-Dade Police Department Detective William Pedraja “took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics.”  Based on this signal, the officer filed for a search warrant, and upon its receipt, conducted the search, “which revealed marijuana plants; Jardines was charged with trafficking in cannabis” (Florida v. Jardines 1).  As the case went to trial, Jardines moved to suppress the evidence, because he felt that the search was unreasonable, and thus unconstitutional.  The trial court agreed, but the Florida Third District Court of Appeal reversed their decision.  In the final step before reaching the Supreme Court, the Florida Supreme Court held that “the use of a trained narcotics dog to investigate Jardines’ home was a Fourth Amendment search unsupported by probable cause, rendering invalid the warrant based upon information gathered in that search” (Ibid 5).  The highest court narrowly affirmed the ruling by a margin of five to four.  In his opinion, Justice Scalia writes, the officers “gathered [the evidence] by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner” (Ibid 5-6).  Though people may expect visitors to come to their door, Scalia continues by arguing that “to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission would inspire most of us to­–well, call the police” (Ibid 9).  He concludes by stating firmly “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment” (Ibid 12).  Justice Kagan wrote a concurring opinion focusing on privacy that was joined by Justices Ginsburg and Sotomayor.  She offers a simple analogy in which “a stranger comes to the front door of your home carrying super-high-powered binoculars” and proceeds to “peer through your windows, into your homes furthest corners.”  She argues that this action, and comparatively the dog sniff, is a violation of privacy, a right to which Katz v. United States decided citizens have a “reasonable expectation” (Ibid 13).  In his dissent, Justice Alito argues that the “law of trespass generally gives members of the public a license to use a walkway to approach the front door of a house and remain there for a brief time,” regardless of whether or not the visitors are people “whom an occupant of the dwelling is likely to welcome” (Ibid 18).  Frankly, Alito sees no precedent here from which to draw upon, and declares that dogs’ “acute sense of smell has been used in law enforcement for centuries” (Ibid 19).  He concludes, after denouncing some of the arguments used by Scalia and Kagan, by writing that “the conduct of the police officer in this case did not constitute a trespass and did not violate respondent’s reasonable expectations of privacy,” thus making this “not a search” (Ibid 29).

            In hearing and deciding these two cases, the Court offered a clear and important precedent in the matter of dog-sniffs.  In general, law enforcement officers are free to continue using dogs in traffic stops to establish probable cause for search and seizure, provided that they can prove the canine’s reliability and efficacy.  Indeed, based on the rulings, there is reason to believe this may apply to public areas in general.  However, this right does not so clearly extend to private property, where the Supreme Court views a dog-sniff as a search under the Fourth Amendment that violates expectations to reasonable property and privacy rights.  With the increased focus on privacy in America, these may prove to be highly influential precedents.  

Bibliography

Florida v. Harris, 568 U.S. (2013), http://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf

Florida v. Jardines, 569 U.S. (2013), http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf