Drug-sniffing dogs an unconstitutional search?

In this photo taken on Dec. 6, 2011, retired narcotics detector canine Franky looks on during a demonstration in Miami. / AP Photo/Alan Diaz

MIAMI - Franky the drug dog's supersensitive nose is at the heart of a question being put to the U.S. Supreme Court: Does a police dog's sniff outside a house give officers the right to get a search warrant for illegal drugs, or is the sniff an unconstitutional search?

Florida's highest state court has said Franky's ability to detect marijuana growing inside a Miami-area house from outside a closed front door crossed the constitutional line. The state's attorney general wants the Supreme Court to reverse that ruling.

The justices could decide this month whether to take the case, the latest dispute about whether the use of dogs to find drugs, explosives and other illegal or dangerous substances violates the Fourth Amendment protection against illegal search and seizure.

Many court watchers expect the justices will take up the case.

"The Florida Supreme Court adopted a very broad reading of the Fourth Amendment that is different from that applied by other courts. It's an interpretation that a majority of the U.S. Supreme Court will question," said Tom Goldstein, who publishes the widely read SCOTUS blog website and teaches at the Harvard and Stanford law schools.

The case, Florida v. Jardines, is being closely monitored by law enforcement agencies nationwide, which depend on dogs for a wide range of law enforcement duties.

"Dogs can be a police officer's best friend because they detect everything from marijuana or meth labs to explosives," said Kendall Coffey, a former U.S. attorney in Miami now in private practice.

The 8-year-old Franky retired in June after a seven-year career with the Miami-Dade Police Department. He's responsible for the seizure of more than 2.5 tons of marijuana and $4.9 million in drug-contaminated money. And because he's an amiable chocolate Labrador, he was used extensively in airports, sports arenas and other places where people congregate.

"He's a friendly, happy dog," said his former handler, Detective Douglas Bartelt, who kept Franky after he retired. "People don't have fear because of his appearance."

The U.S. Supreme Court has approved drug dog sniffs in several other major cases. Two of those involved dogs that detected drugs during routine traffic stops. In another, a dog found drugs in airport luggage. A fourth involved a drug-laden package in transit.

The Florida case is different because it involves a private residence. The high court has repeatedly emphasized that a home is entitled to greater privacy than cars on the road or a suitcase in an airport. In another major ruling, the justices decided in 2001 that police could not use thermal imaging technology to detect heat from marijuana grow operations from outside a home because the equipment could also detect lawful activity.

"We have said that the Fourth Amendment draws a firm line at the entrance to the house," the court ruled in that case, known as Kyllo v. United States. The justices added that the thermal devices could detect such intimate details as "at what hour each night the lady of the house takes her daily sauna and bath."

It's well-settled that law enforcement officials can walk up to a home and knock on the front door, in hopes that someone will open up and talk. But if a person inside refuses, the officers must get a search warrant, and for that they need evidence of a crime.

On the morning of Dec. 5, 2006, Miami-Dade police detectives and U.S. Drug Enforcement Administration agents set up surveillance outside a house south of the city after getting an anonymous tip that it might contain a marijuana grow operation. Bartelt arrived with Franky. The dog quickly detected the odor of pot at the base of the front door and sat down as he was trained to do.

That sniff was used to get a search warrant from a judge. The house was searched and its lone occupant, Joelis Jardines, was arrested trying to escape out the back door. Officers pulled 179 live marijuana plants from the house, with an estimated street value of more than $700,000.

Jardines, now 39, was charged with marijuana trafficking and grand theft for stealing electricity needed to run the highly sophisticated operation. He pleaded not guilty and his attorney challenged the search, claiming Franky's sniff outside the front door was an unconstitutional law enforcement intrusion into the home.

The trial judge agreed and threw out the evidence seized in the search, but that was reversed by an intermediate appeals court. In April a divided Florida Supreme Court sided with the original judge.

In its petition to the U.S. Supreme Court, state lawyers argue that the Florida Supreme Court's decision conflicts with numerous previous rulings that a dog sniff is not a search.

"A dog sniff of a house reveals only that the house contains drugs, not any other private information about the house or the persons in it," wrote Carolyn Snurkowski, Florida associate deputy attorney general. "A person has no reasonable expectation of privacy in illegal drugs."

The criminal case against Jardines is on hold until the question involving Franky's nose is settled. Meanwhile, Jardines is out on bail following a 2010 arrest for alleged armed robbery and aggravated assault. He pleaded not guilty in that one, as well, and trial is set for Feb. 21.

[alanofsac]

There has been recent study on the false alert rate of drug dog handler pairs It seems the false alert rate is on the order of 80% Seems the dog will alert on subtle unconscious actions of the handler Put that statistic with the idea that EVERYBODY involved wants to get "probable cause" to get a legal search underway the dog is the only innocent party here all it wants is to play with his toy

[heeyeonjeon]

hi~

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[heeyeonjeon]

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[q.charles132]

I say it depends on the circunstances.Im all about medicinal legalisation myself and belong to many of the pro groups.I mean if a dog alerts on the street I don't think that should allow the cops to start knocking on doors plain and simple.To me that would be an evasion of privacy pure and simple.There other examples as well.If a person leaves a window open just a little bit and they find pot in the vehicle legaly they really cannot arrest or convitc the owner because of the simple fact that the window was cracked a little and anyone could easily slip it into the vehicle.Only in certian instances should they be allowed to be used

[DeborahJean1977]

Would you allow dogs to search and rescue? Sniff out bombs? Lead the blind? What makes this any different? It's not just what people do in their own homes as one so likely wants to put it. If it was a man making bombs intending to detonate them in our country, and the dog sniffed out his house, everyone would be all for it...but ohhhh, we can't have that when it's our right to privacy and all we want to do is get high. That's a bunch of crap. No, it should not be an unconstitutional search.

[bobnjersey]

[Would you allow dogs to search and rescue? Sniff out bombs? Lead the blind? What makes this any different? ]
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what about fetching a tennis ball ... that's the same too ... right?

maybe we should regularly search every home ... just to make sure there's no 'odor free' bombs being made.

in fact ... let's just put cameras in every home ... and microphones too ... just to make sure everyone's being compliant.

there's no difference there either ... right?

[K-727]

Let's all go over to your house and search it thoroughly. "Someone" told the police that their drug sniffing dog smelled marijuana inside your home. What would you say to police when they came to your door? If you'd let them right in and search (and destroy) your home, you'd sound like a good little Nazi.

[Voiceofreasonable]

Any decent drug-sniffing dog can pick up on the smallest amount of substances, even those that are not fresh. So when the Indiana state cops stopped my son, driving my car, in a routine speed check, one of their dogs "marked" his car for drugs . . . which turned out to be a teeny-tiny roach dropped by one of MY friends a couple of nights before. They tore the entire car apart looking for it, and what they found was barely even enough to see, let alone justify the legal expenses and lost time incurred by both me, my son and the State of Indiana. What a monumental waste of time and a talented dog!

[bobnjersey]

["We have said that the Fourth Amendment draws a firm line at the entrance to the house," the court ruled in that case, known as Kyllo v. United States. The justices added that the thermal devices could detect such intimate details as "at what hour each night the lady of the house takes her daily sauna and bath."]
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but that lady could be a muslim sympathizing infiltrator ... and therefore the police should have total leeway in tracking her every action.

we need to be protected from these statistically significant threats ... even if the numbers dying from heart disease, cancer, and accidental death dwarf terrorist/drug related incidents by a factor of 10,000.

we need to stay 'brave' (as we cower behind every tree) ... and we should remain 'free' (as we are constantly monitored) ... so as to maintain the very principles by which this great nation was founded.

if the dogs can do this for us ... then we should follow their olfactory glands to freedom.

[nomorelibs]

Or we could legalize drugs and stop wasting money and lives fighting them. No, that makes too much sense.

[bantamei]

Anti marijuana laws are some of the dumbest laws on the books. Aspirin is more dangerous than marijuana.

[Anotheryahoo]

The police state keeps marching on, passing endless laws and stripping away the Constitution while sending us all the bill to keep us safe from ourselves. Ron Paul has my vote. Freedom & Liberty instead of the police state. Think about it.