Supreme Court Hears Cases on Drug-Sniffing Dogs

Posted November 1, 2012 in Criminal Law by


The United States Supreme Court heard arguments in a pair of cases yesterday that could affect how police dogs are used to detect drugs in people’s homes and vehicles. The rulings, expected by next summer, could go a long way toward helping small-time users avoid the cold, wet nose of the law.

In one case, Florida v. Jardines, the court considered whether law enforcement officers bringing a drug-sniffing dog onto the porch of a private home without a warrant constitutes an unreasonable search.

At stake in the second argument, Florida v. Harris, is whether courts should take detection dogs’ supposed expertise at sniffing out contraband at face value to provide officers with probable cause to search a vehicle, or if the court need be convinced of the individual dog’s merit and skill before accepting any evidence discovered as a result of its nose.


Scalia Speaks His Mind

Traditionally, using dogs to sniff luggage in airports or the exterior of vehicles is not considered a search, because the only information the dog can convey to its handler is the presence of something illegal, something not typically subject to privacy protections. A person’s home, however, could be another matter. In the Jardines case, the Florida Supreme Court ruled that it was an unconstitutional search for police to bring a dog onto the porch of a home suspected of holding marijuana plants, since the dog constitutes a “device” that the general public would not employ.

During arguments, arch conservative Justice Antonin Scalia seemed receptive to the weed grower’s position, at one point saying, “I think you cannot enter the protected portion of a home, which is called the curtilage, with the intention of conducting a search, that is not permitted.”

In the Harris case, the Florida Supreme Court tossed an arrest of a man for possession of materials to make methamphetamine, in part because a dog had sniffed the inside of his car, not the outside. More importantly, the court called into question whether a court could trust a dog’s “alert” reaction to the supposed smell of drugs as the sole reason to give an officer probable cause to search, in the absence of other evidence that the dog is reliable.

Indeed, there is plenty of anecdotal evidence available as well as statistical studies that suggest that a dog’s nose isn’t as canny at picking out pot, powder and pills as their handlers would like to believe.

The justices, however, seemed more inclined to side with the canines in this case. The ever-quotable Scalia at one point compared dogs to human expert testimony. “If the reasonableness of a search depended upon some evidence given by a medical doctor,” the justice said, “the Court would not go back and examine how well that doctor was trained at Harvard Medical School.”


Smelling a Rat

Marsh Halberg

Whichever way the court decides will provide important guidelines for how police use their K9 friends– and how criminal attorneys can fight charges based on evidence that is improperly acquired. “I am pleased to see these two Florida cases going to the United States Supreme Court as greater clarity is needed for both the prosecution and the defense as to what rules apply,” says Marsh J. Halberg of Halberg Criminal Defense in Minneapolis.

Halberg notes that courts currently show a considerable amount of confidence in detection dogs’ abilities, which may or may not be warranted. “Prosecutors and courts seem to bestow great credibility to the actions of these animals,” the attorney says. “In my humble experience, the sense of smell credited to the dogs is, in many cases, far beyond their actual abilities. Even when a dog is properly trained, it is susceptible to providing false ‘alerts.'”

Also coming into play is human error, or a more cynical motive on the part of the officer. “As importantly, the dog handler can inadvertently misread the signals the dog is providing,” Halberg says. “The credibility of the officer, as well as the animal, can come into play. I have had clients who have watched a dog search their car and they are adamant that the dog never provided any signal to the police officer that could be construed as an ‘alert’ for illegal drugs. The credibility of the officer usually prevails that an ‘alert’ did occur and the search is upheld.”


Do you think drug-sniffing dogs should be treated as “experts”? Should law enforcement be granted a search warrant based only on a dog’s signal that illegal substances are present? Join the discussion by leaving a comment below.

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