How Dogs Will Determine the Limits of Our Privacy

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One of the cuter litigant in recent memory

This term, the Supreme Court has issued a unanimous ruling in the case of Florida v. Harris, reversing the Florida Supreme Court’s decision to suppress evidence uncovered by a police narcotics dog named Aldo. That ruling, coupled with another case involving drug-sniffing-dogs, should give police and law enforcement entities a better idea of how to use man’s best friend in smelling out man’s least legal drugs.

Yet handicapping that other case—Florida v. Jardines—isn’t a sure thing. While the Harris ruling certainly helps, the differences will hinge on privacy in the home versus privacy in your car. And while Harris was a unanimous slam-dunk, there’s plenty of reason to think Jardines will be anything but.

Let’s start with what we know: Florida v. Harris. Here are the facts:

It starts when K9-Officer William Wheetley of Liberty County, Florida pulled over Mr. Clayton Harris because his truck’s licence plates were expired. During their brief interaction, Wheetley saw an open beer can in the truck’s cupholder and found Harris to be exceptionally nervous, “unable to sit still, shaking, and breathing rapidly.” The officer asked Harris’ permission to search his truck, which Harris refused.  At that point, the officer decided to get Aldo out of the car and perform a sniff-test.

Aldo smelled all the ingredients for making methamphetamines. What wasn’t found in the car was the final product.

The Supreme Court has long held that people in their automobiles have a reduced expectation of privacy (Carroll v. U.S., 1925), and that public dog sniff tests do not invade that privacy to a degree that would require warrants be issued prior to a search (U.S. v. Place, 1983). The court recently put these two precedents together and has allowed drug-sniffing dogs to take part in during routine traffic stops, so long as the sniff test doesn’t “unreasonably” prolong the stop (Ilinois v. Caballes, 2005). The sniff is placed in the same constitutional space as a “stop and frisk,” merely a “minor inconvenience and petty indignity” (People v. Rivera, NY Court of Appeals, 1964).

The Court in Harris erred on the side of the sniff test as being reliable; finding that:

[I]f the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.

The Court found that a dog’s reliability was far more readily tested in a controlled test environment, and that the “alert” alone of a narcotics detection dog certified by an appropriate organization would be sufficient probable cause for an officer to search a vehicle.

In other words, if the dog smells something in your car, it’s reasonable for the cops to search it.

Justice Kagan did leave some respite for defendants, allowing that they might challenge the sufficiency of the dog’s training, certification and the dog or its handler’s performances in those training sessions. Past performance may, in some rare cases, be cause to challenge the probable cause of the search, but generally a dog who routinely undergoes the necessary and appropriate narcotics detection training, and achieves satisfactory results in those training sessions, as Aldo did, will be another means for an officer to establish probable cause for a search.

Now, if we take the unanimous decision in Harris and compare it with the Court’s handling of home searches, most recently treated in Kyllo v. U.S. (2001), there is hope to presume our privacy in our homes may actually be strengthened when the Court issues a ruling in Jardines later this term.

Jardines considers whether an officer, with a narcotics detection dog, may walk around, but not enter, a private home without a warrant, and then use the dog’s “alert” as probable cause to get a warrant for a search of the home.

Here are the pertinent facts:

A Miami police officer took a trained dog, Frankie, into Mr. Jardines’ property. They walked him around until he reached the front porch. At that point, Frankie “alerted,” and the police were able to get a warrant to search Jardines’ home. They found marijuana inside. However, while the case was being argued, the Justices seemed reluctant to allow a police officer to enter “beyond the gate” of a private residence for a warrantless inspection, and hostile to the government’s argument that a dog alert is not a search in such context.

In other words, it seems that bringing a drug-sniffing dog onto someone’s property does in fact constitute a search.

Why is that? Part of this goes back to another case we mentioned earlier, Kyllo, where the court upheld special and powerful protection to the home itself. In Kyllo, the Court refused to allow the government to use thermal imaging devices to scan homes for heat patterns that might indicate the presence of high-intensity heat lamps used to grow marijuana.  If the court is willing, as Harris seems to indicate, to treat dog sniffing as a reliable—indeed, almost machine-like—detection technique, why is it any different than using an actual machine to search a property without a warrant?

Kyllo, remember, was decided in a 5-4 decision, with Justice Scalia’s decision being joined by Justices Souter, Thomas, Ginsburg and Breyer; four of the five are still serving on the court (Justice Souter retired in 2009). The dissent was authored by Justice Stevens, who was joined by Chief Justice Rehnquist, and Justices O’Connor and Kennedy.

Only Kennedy remains from the dissenting foursome.

Of the new members of the Court (Justices Alito, Kagan, Sotomayor and Chief Justice Roberts), I would suspect that Alito and Roberts might possibly stand with Justice Kennedy in the dissent, but Justices Kagan and Sotomayor’s thorough grilling of the Solicitor General in oral argument last October suggested that they favor Mr. Jardines’ argument. Justice Kagan, in fact, drew a direct line to Kyllo, suggesting that the drug-sniffing dog was less of an officer’s inspection, and more the utilization of a “smell-a-matic” scanner, the olfactory equivalent to Kyllo’s thermal sensors.

Unless Justice Kennedy can convince Justices Scalia and Thomas to reconsider their earlier votes in protection of home privacy, it’s fair to guess that an additional level of privacy in the home may soon be established, by that same canine nose that reduces our expectation of privacy in public.

About Rob Sharp

Rob Sharp is an international law junkie with a particular interest in comparative law, sovereignty and state responses to terrorism. On the lighter side of things, Rob enjoys travel, college football, and reading. Rob has a B.A. in Political Science from the University of California at Berkeley and a JD from Notre Dame Law School. Rob returned to his birthplace of London in his second year to participate in NDLS’ Concannon Programme of International Law.
Posted in: Constitutional, Law