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Justices consider review of two ‘dog-sniff cases’

Published: Monday, Oct. 29, 2012 1:15 a.m. CDT

WASHINGTON – Franky found drugs in Florida. He’s a dog, so he left the constitutional questions to others.

But Franky’s work in Miami and another drug-sniffing dog’s diligence in Liberty County, Fla., will draw the Supreme Court’s attention this week. Not for the first time, justices must figure out when a canine sniff is a search, with all the constitutional consequences that implies.

“The Fourth Amendment says no unreasonable search and seizures,” said Nicholas Quinn Rosenkranz, a professor at the Georgetown University Law Center, “so is that a search that triggers the Fourth Amendment inquiry?”

Dubbed the “dog-sniff cases” by court cognoscenti, the two disputes to be heard separately Wednesday involve distinct sets of facts. Taken together, though, they could end up either limiting or, more likely, spurring the already-popular use of dogs in law enforcement.

Tellingly, 24 states – including Pennsylvania, Texas, Washington and Idaho – have sided with Florida law enforcement officials, noting in a legal brief that “drug-detecting canines are one of the essential weapons in the states’ arsenal to combat this illegal traffic.”

Franky and Aldo exemplify the law enforcement breed.

Franky, a chocolate Labrador retriever who’s since retired, and his human partner were working for the Miami-Dade Police Department the morning of Dec. 5, 2006. Following a tip, they approached a house in south Dade County. An excited Franky sniffed at the front door and then sat down, an alert sign.

Police subsequently obtained a search warrant, citing Franky’s actions. The resident, Joelis Jardines, was caught trying to escape out the back and was charged with possessing more than 25 pounds of marijuana and the theft of the electricity used in an illicit pot-growing operation.

Aldo, a German shepherd, was on patrol the afternoon of June 24, 2006, with his human partner from the Liberty County Sheriff’s Department. Near Bristol, a small town in Florida’s panhandle, the deputy pulled over a pickup with an expired tag.

“The truck belonged to … Clayton Harris,” attorney Gregory Garre wrote in a brief for the state of Florida. “It was not going to be his day.”

Harris seemed nervous, and the deputy saw an open can of Bud Light. He brought Aldo over and the dog got excited, and then sat down as an alert next to the truck’s front door. Under the driver’s seat, the deputy found 200 pseudoephedrine pills, which can be used to manufacture methamphetamine.

Jardines and Harris knew nothing of each other, and their cases weren’t connected. Attorneys for both men, though, sought to suppress the use of the evidence collected with the help of Franky and Aldo. Jardines argued that Franky’s front-door sniffing cracked the privacy of the home. Harris likewise argued that Aldo’s warrantless sniffing and alert didn’t give the deputy reasonable cause to search the pickup.

The Florida Supreme Court sided with both men.

“Given the special status accorded a citizen’s home under the Fourth Amendment, we conclude that a ‘sniff test’ … is a substantial government intrusion into the sanctity of the home and constitutes a search,” it reasoned in the Jardines case. It said “the search must be preceded by an evidentiary showing of wrongdoing.”

In the Harris case, the state court concluded that officials couldn’t prove Aldo’s reliability in tracking pseudoephedrine, and it set out rigorous standards for future judges to evaluate the work of other drug-sniffing dogs.

The best hope for those who seek to restrict the animals’ use comes in a 2005 case in which the U.S. Supreme Court ruled it a search when police use a thermal imager outside a home. Unlike a drug-sniffing dog, though, the thermal imager can detect both legal and illegal activities. This is a crucial difference, especially since the court typically has given the dogs a lot of leeway.

The U.S. Supreme Court, for instance, has ruled previously that sniffing by a “well trained” dog during a legitimate traffic stop isn’t a search that triggers the Fourth Amendment. The court also has ruled, more generally, that a dog sniff isn’t a search because the animal is detecting only contraband, not anything in which an individual has a legitimate privacy claim.

Legal analysts predict that the court will side with Florida law enforcement officials, likening a dog sniff to a police officer’s ability to smell marijuana wafting from a stopped car.

“I don’t think the court is very willing to draw a line between what the dog and what an individual can smell,” said lawyer Tom Goldstein, a prominent legal blogger.

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