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Are We Going to the Dogs?

When the police bring a drug sniffing dog to the front of somebody’s home, without a warrant, are they invading the privacy of the homeowner?  The United States Supreme Court split on the matter, with one of the conservative justices delivering the opinion of the court.  Justice Scalia in Florida v. Jardines, 133 S.Ct. 1409 (2013) addressed the issue of whether utilizing a drug-sniffing on the homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment.

A detective received an unverified tip that marijuana was being grown in the home of Joelis Jardines.  One month later, the Police Department and the Drug Enforcement Administration sent a joint surveillance team to the home.  The dog who accompanied the detectives was trained to detect the scent of marijuana, cocaine, and heroin.  The dog sensed drugs and alerted his handlers accordingly.  On the basis of what was learned from the dog, the detective applied for and received a warrant to search the residence.  Guess what?  The search revealed marijuana plants and the homeowner was charged with trafficking cannabis.

One point for the dogs!  The homeowner moved to suppress the marijuana plants on the ground that the canine investigation was an unreasonable search.

The Fourth Amendment to the United States Constitution provides that people shall be secure in their houses.  The Fourth Amendment does not prevent all searches of a home and many exceptions have cropped up throughout the years.  However, virtually every judge agrees that at the “core” of the amendment is “the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”  Citing Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679 (1961).  If the state’s agent could stand on the porch or the garden and look for evidence with impunity, the right to retreat to one’s home would be severely diminished.

Justice Scalia noted that an officer need not shield his eyes.  What is in front of the officer certainly can become the basis of a criminal investigation.  “An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker.”  At 1416.  To live in a home does not automatically bar the home from search and seizure without a warrant or other reasonable basis.

Now I know something about dogs.  Aside from having dogs all my life, I now own an American Standard Labrador Retriever.  What a schnozola on that dog!  I can be someplace weeks or even months later, and that dog will remember what he smelled.  How do I know that?  Well Sampson Hamilton and I have discussions about his unique ability.  He tells me what he can smell, and why shouldn’t I believe him?

Justices Kagan, Ginsburg and Sotomayor would have made an even stronger statement than their conservative compadre in this case.

The four dissenting justices, including “liberal” Breyer and swing vote “Kennedy” dissented.  This is an intriguing case in which the majority, restricting the right to search by sniff, included liberal judges with a conservative and the dissenters were also a mixed breed.  The pun is intended.

The dissenters noted that dogs have been domesticated for 12,000 years.  The acute olfactory glands of dogs “has been used in law enforcement for centuries.”  To the dissenters, the criminal cannabis grower in this case simply did not pass the smell test.

Justice Alito, and his joiners in the dissent, claimed that the law of trespass provides no support from the court’s holding.  Smelling is not a trespass.

The dissenters explored the question as to whether a dog’s nose is anything like a thermo-imaging device for Fourth Amendment purposes.  A dog can be trained to sniff, not merely for marijuana, but for dangerous quarry such as explosives or for a violent fugitive or a kidnapped child.

A few years ago I was at a conference of federal judges.  One of the security officials brought in a bomb-sniffing dog to show how important these dogs are in law enforcement.  The dog went right over to one of the federal judge’s briefcases and started barking wildly.  Naturally a search ensued.  The judge had simply brought his lunch along.  Maybe the judge had put hot chili peppers on his sandwich; who knows?

Dogs have even been trained to sniff for cancer, and apparently are more reliable than much more expensive testing.  One wonders whether health insurance coverage will be mandated under the new health insurance law to pay for sniffing dogs who diagnose deadly diseases.  I have come to the conclusion that I should dedicate my dog to science.  It certainly would save me a lot of money if someone else would feed Sampson’s voracious appetite and put his butt-smelling to better use.

Clifford A. Rieders, Esquire
Rieders, Travis, Humphrey,
Waters
161 West Third Street
Williamsport , PA  17701
(570) 323-8711 (telephone)
(570) 323-4192 (facsimile)

Cliff Rieders, who practices law in Williamsport, is Past President of the Pennsylvania Trial Lawyers Association and a member of the Pennsylvania Patient Safety Authority.  None of the opinions expressed necessarily represent the views of these organizations.

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