Pubdate: Thu, 01 Nov 2012
Source: New York Times (NY)
Copyright: 2012 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak

DRUG-SNIFFING DOGS HAVE THEIR DAY IN COURT AS JUSTICES HEAR 2 ARGUMENTS

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 Supreme Court's four liberal justices were skeptical of allowing 
dogs to sniff around homes without probable cause.

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."
- ---
MAP posted-by: Jay Bergstrom