US Supreme Court puts drug dogs’ noses to the test

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Oral arguments in two Fourth Amendment cases before the U.S. Supreme Court Wednesday focused on a common question: just what does a dog’s nose know?

In both cases, criminal defendants challenged the use of trained narcotic detection dogs who signaled the presence of contraband, resulting in a police search that led to the discovery of drugs. The justices now face the dogged task of determining whether the use of such trained canines outside of a house or car constitutes a search requiring probable cause, and whether an alert from a trained, certified animal is enough to establish probable cause.

Expectation of privacy

The first case, Florida v. Jardines, stemmed from an anonymous tip about suspected drug activity in a Miami neighborhood. Police arrived with a drug detection dog, Franky, who walked up to the front door, sniffed and alerted police to the presence of drugs by sitting down. A police officer approached the front door to knock and smelled marijuana smoke. One officer left the scene to obtain an affidavit for a search warrant while the other officers remained outside until the warrant was obtained and executed.

The defendant moved to suppress the drugs that were found in the home, objecting to the use of the drug dog without a warrant. The district court found that this did not constitute a search, but the Florida Supreme Court reversed, holding that the use of the dog to detect items inside a home was a search requiring probable cause.

The Supreme Court granted the state’s appeal.

At oral arguments, Gregory G. Garre, chair of the Supreme Court and Appellate Practice Group in the Washington office of Latham & Watkins, argued on the state’s behalf that “a drug detection dog reveals only the presence of contraband, and … no one has a legitimate expectation of privacy in that.”

Justice Anthony M. Kennedy reacted sharply.

“That just can’t be a proposition that we can accept across the board,” Kennedy said. “The question is: can you find out the contraband?”

“We’re not saying that you don’t have a legitimate expectation of privacy in the home,” Garre replied. “Of course, you do. The question is whether you have a legitimate expectation [in] contraband.”

Nicole A. Saharsky, assistant to the solicitor general arguing as amicus in support of Florida, stressed that the “dog and the officer [were] lawfully approaching the front door just like any Girl Scout, trick-or-treater, or anyone else could.”

Justice Ruth Bader Ginsburg asked if “police could take a dog and go down [to] every house on the street, every apartment in the building?”

“Yes, they could be used in those circumstances, but that’s not happening,” Saharsky said.

Miami-Dade County Assistant Public Defender Howard K. Blumberg, who argued on the defendant’s behalf, asserted that “when police reveal any details inside a home which an individual seeks to keep private, that is a Fourth Amendment search.”

Kennedy again had a forceful reaction.

“That seems to me a proposition that’s equally unacceptable to what the government is saying,” he said. “The police often, when they have ordinary conversation with people, want to find out the details of what that person is doing, where the person lives, what goes on in the house.”

‘Put the dog on trial?’

The second case, Florida v. Harris, involved a traffic stop during which a drug-sniffing dog, Aldo, signaled to the scent of drugs on a car’s door handle. A search by the officer revealed materials used to make methamphetamine inside the vehicle. The driver was stopped again a few weeks later and the same dog made the same alert, but no drugs were found in the car.

The defendant moved to suppress the drug evidence in the case involving the first stop, arguing that Aldo’s signal was unreliable given the second false detection. A trial court denied the motion, but the Florida Supreme Court reversed, holding that the lower court should have objectively evaluated the reasonableness of the belief that narcotics are present in determining probable cause. Applying the totality of the circumstances test, the court ruled that it was not reasonable to conclude there were drugs inside the car simply because the dog alerted to the smell of drugs on the car’s door handle.

The Supreme Court took up the case to hear in tandem with Jardines.

Garre, arguing again for Florida, said the Florida court essentially imposed an “extraordinary set of evidentiary requirements that, in effect, puts the dog on trial in any suppression hearing.”

That goes against the probable cause standard of “substantial chance or fair probability of the detection of contraband,” Garre said.

Justice Elena Kagan asked whether the handler can affect a dog’s performance, putting its training at issue.

“You can inquire into cueing” at trial, Garre replied. “That’s different than the challenge that was made here.”

Joseph R. Palmore, assistant to the solicitor general arguing as amicus in support of the state, argued that “the government has critical interests, life and death interests, that it stakes on the reliability of these dogs.” For example, he said, “There are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy.”

Chief Justice John G. Roberts Jr. asked if dogs are specialized, an issue that can affect the reliability of their alerts.

“Can they be good at bombs, but not good at meth?” Roberts asked, drawing laughs from the audience.

“Well, I don’t know the specific answer to that. I think once a dog kind of chooses a major, that’s what they stick with,” Palmore said, drawing more laughs.

Glen P. Gifford, chief appellate public defender for Leon County, Fla., argued for the defendant that drug dogs should not be treated specially for probable cause purposes.

“There is no canine exception to the totality of the circumstances test for probable cause to conduct a warrantless search,” Gifford said.

“What is wrong with the state’s argument that field performance records are not very probative because dogs detect odors, they don’t detect the physical presence of the substance that created the odor?” asked Justice Samuel A. Alito Jr.

“The state will always point to the possibility of residual odor as a reason” for the alert Gifford said.

Decisions in both cases are expected later this term.