Warm Southern Breeze

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Dope-Sniffing Dogs (and their Law Enforcement owners) get their day in the United States Supreme Court

Posted by Warm Southern Breeze on Wednesday, October 31, 2012

The so-called “conservative,” or Republican justices are showing their true colors.

Welcome to their police state.

Drug-Sniffing Dogs Have Their Day in Court as Justices Hear 2 Arguments

October 31, 2012

WASHINGTON — In back-to-back arguments about drug-sniffing dogs, the Supreme Court on Wednesday seemed open to limiting their use outside homes but not near cars.

The first argument concerned Franky, a chocolate Labrador retriever who detected the smell of marijuana outside a Florida house. The police obtained a warrant to search the house based on Franky’s signal, and they found a marijuana-growing operation inside.

The court’s four liberal justices all asked questions that were skeptical of allowing dogs to sniff around near homes without probable cause. They were joined by one of the court’s conservatives, Justice Antonin Scalia, who sometimes staked out positions more protective of homeowners’ privacy than the lawyer for the defendant in the case.

The Supreme Court has said the privacy of the home is at the core of what is protected by the Fourth Amendment’s ban on unreasonable searches. Justice Scalia is the author of the majority opinions in both a 5-to-4 decision in 2001 limiting the use of thermal-imaging technology to peer into homes and a unanimous ruling in January, on varying rationales, limiting the use of GPS tracking devices on cars.

Justice Scalia’s opinion in the second case was based on the physical trespass of attaching the GPS device, and trespass issues were at the heart of his questioning on Wednesday.

Justice Scalia told the defendant’s lawyer, Howard K. Blumberg, that he had been “misguided to concede” that even a police officer without a dog was entitled to conduct an olfactory inspection of a front door.

Mr. Blumberg quickly adopted the point but later made a second argument that Justice Scalia found insufficiently aggressive.

“Again, I think you’re wrong to accept that,” Justice Scalia told Mr. Blumberg about the relevance of a police officer’s state of mind in approaching a front door.

“If he’s going on just to knock on the door to sell tickets to the policeman’s ball,” Justice Scalia said of the hypothetical policeman, “that’s fine. If he’s going on to conduct a search, that’s something else.”

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. said there was no precedent for that distinction.

Justice Ruth Bader Ginsburg asked if there was anything to prevent the police from routinely using dogs to “sniff in front of every door, or go into an apartment building.”

Gregory G. Garre, a lawyer representing the prosecutors, said “they could do that” but might be deterred by “the restraint on resources and the check of community hostility.”

Justice Ginsburg asked whether a “no dogs allowed” sign on the front lawn would be effective, and Mr. Garre said yes. “That’s a way in which the house is different than a car,” he said.

Justice Sonia Sotomayor said that the court’s eventual decision in the case, Florida v. Jardines, No. 11-564, might therefore in essence “tell all the drug dealers, put up a sign that says, ‘no dogs.’ ”

Without such a sign or something similar, Mr. Garre said, “There is an implied consent for people, visitors, salesmen, Girl Scouts, trick-or-treaters, to come up to your house.”

There was a dispute about how long Franky had spent sniffing around, and Justice Stephen G. Breyer suggested that the answer might affect his analysis.

“Would a homeowner resent someone coming with a large animal sitting in front of his front step on his property and sitting there sniffing for five to 15 minutes?” he asked, indicating that it would not be plausible to assume consent in that situation.

Justice Elena Kagan seemed to agree. “This dog is there for some extended period of time, going back and forth and back and forth, trying to figure out where the greatest concentration of the smell is,” she said, adding that it seemed to be “a lengthy and obtrusive process.”

On the other hand, Justice Kagan later said, a brief visit to the front door might be different.

“The dog comes up, takes a sniff, barks, sits down,” she said. “And, you know, to make it even more, the dog is not a scary-looking dog. The dog is a cockapoo.”

Mr. Blumberg said nothing would turn on those distinctions.

“Whether it’s a cockapoo or Franky, who, from all the pictures, appears to be a very cute dog,” Mr. Blumberg said, “it’s not what the dog looks like, it’s what the dog is doing on the front porch.”

The second argument, in Florida v. Harris, No. 11-817, concerned Aldo, a German shepherd who helped his human partner find chemicals used to make methamphetamines in a pickup truck that had been pulled over near Bristol, Fla. The questioning was sedate, and the defendant’s lawyer, Glen P. Gifford, seemed to gain little traction for his argument that Aldo’s reliability had not been adequately established.

Justice Anthony M. Kennedy said the issue should be left to trial judges.

Joseph R. Palmore, a lawyer for the federal government, which supported the prosecutors in both cases, said police dogs did invaluable work.

“There are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy,” he said.

Chief Justice Roberts asked whether dogs that were good at one task were necessarily good at another. “Can they be good at bombs,” he asked, “but not good at meth?”

Mr. Palmore said he did not know because dogs tended to specialize. “I think once a dog kind of chooses a major,” he said, “that’s what they stick with.”

A version of this article appeared in print on November 1, 2012, on page A19 of the New York edition with the headline: Drug-Sniffing Dogs Have Their Day in Court as Justices Hear 2 Arguments.

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