Sniffing Out Justice – But is it Legal?

by Diane Dimond on November 12, 2012

Can a Sniff Be Unconstitutional?

Can a dog violate your constitutional rights? That’s right – I said a dog.

No, this is not a trick question. It is borne of a law enforcement situation so serious that the state of Florida has been joined by more than 20 other states in asking the U.S. Supreme Court to render a decision on the matter.

Here’s the deal. The high court recently agreed to hear two separate cases from Florida in which police dogs, trained to sniff out illegal drugs, alerted their human handlers to the presence of drugs. The question currently pending before the court is: were these drug busts conducted legally?

One instance occurred outside a private home near Miami. Officers had gotten a tip that marijuana was being grown inside the home of Joelis

Jardines Case Goes All the Way to the SCOTUS

Jardine. After a K-9 unit Labrador retriever named Franky alerted at the front door one officer waited with the dog while the other went to get a search warrant. Inside, police found multiple pot plants. Jardines was arrested for possessing more than 25 pounds of marijuana and for illegally diverting the electricity needed to grow the plants under special lights. His lawyer argued that Jardines’s constitutional rights were violated by an illegal search and seizure. The Florida Supreme Court agreed.

The second case involved a seemingly routine traffic stop in Bristol, Florida during which the police officer thought Clayton Harris seemed awfully sweaty and nervous. The police dog at this scene, a German Shepard named Aldo, did what is called “a free air sniff” around the outside of the truck and zeroed in on the driver’s side door handle. Inside the vehicle the officer found a couple hundred pseudoephedrine pills and 8,000 matches – ingredients for making methamphetamine. Harris, pleaded no contest but, ultimately the Florida Supreme Court ruled against the legality of the police search saying the state had failed to prove that Aldo the dog was a reliable drug detector or that his handler had enough experience with a K-9 partner.

Harris Caught With Meth Ingredients

That wasn’t an issue with Franky’s situation at the house in Miami. That K-9 sleuth already had almost 400 positive alerts under his collar and had helped seize about a ton of marijuana and 34 pounds of cocaine and heroin. Good boy! (Although as regular readers know I advocate the legalization, regulation and taxation of marijuana.)

The Florida Supreme Court found a completely different problem with Franky’s actions at the Jardines house. The state court ruled it wasn’t legal for a canine to sniff outside a home without his human getting a search warrant ahead of time. In other words, the Florida judges ruled, Franky’s very first sniff constituted a violation of the U.S. Constitution and Jardines’ fourth amendment rights governing search and seizure. They called it an, “unreasonable government intrusion into the sanctity of the home.”

So the two questions now before the United States Supreme Court in Washington: How qualified must a dog be to do a legitimate sniff and is a trained police dog allowed to sniff outside a home without a warrant?

SCOTUS Deems Dogs at Airports Are Legal

You might think these questions are somehow strange for our highest court in the land. They are not. In fact, the U.S. Supremes have already ruled on doggie-search-issues. They previously decided it is legal for dogs to sniff luggage at airports or open containers on street corners. But right outside someone’s private home? That may turn out to be completely different in their eyes.

During the recent arguments on Franky and Aldo’s searches Justices Ruth Bader Ginsburg and Antonin Scalia had very pointed questions about home searches. Ginsburg asked Florida’s lawyer, Gregory Garre, what the next logical step might be if such police actions were allowed to continue. What would stop officers from taking their drug sniffing dogs into neighborhoods with drug problems and then going door to door to door to try to find illegal drugs? Justice Scalia reminded the lawyers about the rule that police are not supposed to come within the area immediately surrounding a home in order to get a better look inside, say, with a pair of binoculars. Why, he asked, was using a dog any different?

Attorney Garre answered that the law allows a police officer to walk right up to the front door of a home, knock and talk to whoever is inside in an effort to uncover evidence of a crime. Why, he asked, is it any different if the officer has a dog come along?

Give ‘Em Kibble and They’re Ready to Go

There’s no telling when the high court will make its final decision on these cases. In the meantime, it is safe to say the Attorneys General in more than 20 states are anxiously awaiting the final decision because with budget and staffing cutbacks K-9 units have become a necessary norm in police departments nationwide. I dare say, you would be hard pressed to find an officer who didn’t see these animals as full-fledged law enforcement partners and necessary tools in fighting crime.

Dogs also cost a whole lot less to train and employ than human beings. Wonder if the court will take that into account when making their final decision? I’m no lawyer but I doubt there’s room in the legal discussion for any real-world considerations.

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{ 18 comments… read them below or add one }

Diane Dimond November 12, 2012 at 9:34 pm

Creators Syndicate Web Site Reader James A. Sweeny writes:

“Ma’am; I hate to belabor the point; but the crime of stupidity should never go unpunished. Fine if you want to grow and smoke; but to grow such quantities that dogs can smell it, and people can smell it means you are trafficking in it for money and that is dumb and should stop. Throwing the low intelligent in prison with others of like IQ is expensive, but necessary… Farming pot in a house is done, but it is no small crime and it shows a determined effort to be criminal…
Drive real fast, or cheat on your taxes, maybe beat up some one for giving you some crap, and you can get on with your life and quit doing what you done did… Making a habit out of being stupid is insane, and it should be resisted on grounds of preserving the species…
Now; it does not matter that most republican voters by my definition should be under the control of the state… We can only do what we can do, and to transform all the republicanation into a people who use their heads for more than keeping their ears apart is about impossible; but something should be done… They want to keep others from abortion, when they should be kept from breeding… It works to throw young people in the slammer for being stupid until the stupid gene begins to wilt; but some way must be found for republicans, and if you have any ideas I am open…”

Reply

Diane Dimond November 12, 2012 at 10:01 pm

Facebook Friend Andrea Kaye writes:

“I think all matters pertaining to our privacy should be reviewed and ruled on per the strictest of constitutional standards. How do I know what training a dog has received? Is the standard for search warrant the same? or probable cause? Same thing with these drones.”

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Diane Dimond November 12, 2012 at 10:05 pm

Santa Barbara Noozhawk Reader State Street writes:

“I’m all for door to door searches with DSD’s! I have nothing to hide, do you?”

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Diane Dimond November 12, 2012 at 10:06 pm

Dear State Street:

Nope, nothing to hide here. But I sure hope the dog is well trained to know the difference between Pot, Meth ingredients and my extra special cinnamon I buy from the fancy spice shop down the block! ~ DD

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Danno Hanks November 13, 2012 at 12:58 pm

I think that many of the comentators here are missing the point. The point is were unusual methods taken to detect was was not in plain sight (or smell) on or in private property. The problem here is that the trainer can say that his dog told him anything he wants. ie “The dog has alerted me that you are a Democrat”. What the dog thinks is up to interpetation.

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Diane Dimond November 13, 2012 at 4:37 pm
Diane Dimond November 15, 2012 at 10:45 pm

Huffington Post reader Ceri Cat writes:

“In the case of humans in a K9 partnership there tends to be as real a connection between them and their partner as any human partnership retraining a surviving handler with a new dog can actually take quite a while. What happened to the right of a police officer becoming aware of illegal activity through their own observation to perform a search though? I’d note that police manuals dating back from the early 90s at least reference a K9 officer as a full fledged police officer as regards rights and responsibilites also.

I don’t envy the SCOTUS deliberating this one, IMO the search was not illegal given a trained officer detected illegal activity.”

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Diane Dimond November 15, 2012 at 10:47 pm

Huffington Post reader MintyShiny writes:

“Tbh I think taking dogs to known neighbourhoods with drug problems to try and sniff out drugs is OK- I mean, if you didn’t have anything to hide and wanted to reduce drug problem then I’d welcome it.”

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CLS November 16, 2012 at 10:13 pm

I’m afraid I have to side with the Bill of Rights protecting illegal searches and seizures. There should be a proper search warrant. Given what the handlers and their dogs uncovered, that’s not an easy stand for me to take. But I do believe in that document known as the Constitution and its attached Bill of Rights.

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Diane Dimond November 16, 2012 at 10:42 pm

And, as other readers have pointed out to me, CLS, it really is just the officer’s word about whether his or her dog “alerted” or not. While I cast no aspersions on police officers by mentioning that – if you have a warrant there is no argument, right? ~ DD

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Diane Dimond November 21, 2012 at 10:03 am

Huffington Post Reader StormWarning68 writes:

“Drugs are a serious problem. K9′s are actually official officers. If K9′s can find the illegal drugs, then so be it. The US has had a war on drugs for years. We’ve heard the saying, “All is fair in love and war.” If the drug peddlers want to keep peddling, they’re gonna have to get smarter than the police. K9′s are a powerful resource that’s gonna be tough to beat.
As for the cops going door to door with the K9′s to detect drugs in neighborhoods where heavy activity occurs….I think that’s a good way to clean up a problem. I work in an industry that gives you a notice for approximately when the state is coming in to do an inspection. That gives the “powers that be” time to get all of the little messes cleaned up before the state arrives…and as soon as the state leaves, it’s back to business as usual. Makes me sick !! The only way to get to the truth is to show up unannounced !!!”

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Diane Dimond November 21, 2012 at 10:04 am

Huffington Post Reader Qcislander writes:

“Teach a dog to talk, reason and argue.

No judge should accept less.”

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Diane Dimond November 21, 2012 at 10:05 am

Huffington Post Reader RaeofDreams writes:

“Well, do please remember that the drug dogs ARE sworn police officers in the line of duty. If the dog has that ability, and YOU have drugs in your house and it’s still illegal in the state you’re in, DAMNED right it’s legal! Oh, and defense attorneys, how about getting real jobs, instead of defending people who are FOUND to be violating laws?? This is the beginning of the end of society as we know it. When the law is confounded by questioning its rights to using whatever means they have at their disposal to find and convict criminals. Criminals have many tricks up their sleeves, but some defense attorney will jump to their aid, just to make that dirty money on these kinds of cases! It should be made the law that if you’re CAUGHT red-handed committing crime, you lose your right to a defense attorney, or just do it yourself! You got yourself into it, now try and get yourself out without misusing the law!”

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Diane Dimond November 21, 2012 at 10:06 am

Huffington Post Reader Bofus321 writes:

“Okay, the dog cannot sniff out side of the house without a warrant. But you can monitor some ones facebook page and arrest them on post on FB?????

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Diane Dimond November 21, 2012 at 10:07 am

Huffington Post Reader SydneyHav writes:

“ow dare those dogs do such a thing——-it gives the cops an unfair advantage over those poor misunderstand drug dealers. Cops and drug dealers should have to fight on an even playing field. The same with military dogs!!! How can the terrorists and other enemies of the U.S. kill & blow off soldier’s arms & legs with buried bombs if those darn dogs alert the soldiers where those bombs are????
Sheesh, just because they save lots of human lives dogs are called “heroes..” Well, it sounds like SCOTUS is going to show whose side they are on – - – drug dealers, terrrorists, and other low-life criminals.”

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Diane Dimond November 21, 2012 at 10:07 am

Huffington Post Reader OurOrb writes:

“I don’t think it’s a question of sides, as much as it’s one of illegal search and seizure. Whether you agree with the character of the defendants or not, the bigger picture is what constitutes an illegal search. It doesn’t matter if someone is a criminal or if they aren’t, the correct legal procedures have to be followed. What if in this case, it is an illegal search of someone with whom you might not be an advocate of, but what happens next time, when illegal practices of any kind, seep on through to an ever widening and broader population of people, including law biding citizens?”

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Diane Dimond November 21, 2012 at 10:08 am

Huffington Post Reader RaeOfDreams writes:

“Make note, the dogs in question are sworn officers of the law, just as are their human counterparts! If an officer (two-legged) can go up to the door on a suspicion, then so can the drug dogs! So, it’s not illegal search and seizure, now is it?”

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Diane Dimond November 21, 2012 at 10:10 am

Huffington Post Seeker of Wisdom writes:

“They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.”

Reply

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