Pubdate: Wed, 27 Mar 2013
Source: Philadelphia Inquirer, The (PA)
Copyright: 2013 Philadelphia Newspapers Inc
Contact:  http://www.philly.com/inquirer/
Details: http://www.mapinc.org/media/340
Author: Jesse J. Holland, Associated Press
Page: A6

DRUG-SNIFFING DOG LOSES IN COURT

By 5-4, an Odd Mix of Justices Ruled a Florida Search That Started
Without a Warrant Was Unconstitutional.

WASHINGTON - The Supreme Court, in an usual alignment of justices,
ruled Tuesday that police cannot take drug-sniffing police dogs onto a
suspect's property to look for evidence without first getting a
warrant for a search.

The court split 5-4 on the decision to uphold the Florida Supreme
Court's ruling throwing out evidence seized in the search of Joelis
Jardines' Miami-area house. That search was based on an alert by
Franky the drug dog from outside the closed front door.

Justice Antonin Scalia said in Florida v. Jardines that people have a
Fourth Amendment right to be free from the government's gaze inside
their home and in the area surrounding it.

"The police cannot, without a warrant based on probable cause, hang
around on the lawn or in the side garden, trawling for evidence and
perhaps peering into the windows of the home," Justice Antonin Scalia
said for the majority.

He was joined in his opinion by Justices Clarence Thomas, Ruth Bader
Ginsburg, Sonia Sotomayor, and Elena Kagan.

Dissenting were Chief Justice John G. Roberts Jr. and Justices Stephen
G. Breyer, Anthony M. Kennedy, and Samuel A. Alito Jr.

It's not trespassing when a mail carrier comes on a porch for a brief
period, Alito countered. And that includes "police officers who wish
to gather evidence against an occupant," he wrote.

Thousands of dogs are used by governmental organizations around the
United States, but the difference in this case, the high court said,
is that Franky was used at a home.

On the morning of Dec. 5, 2006, Miami-Dade police detectives and U.S.
Drug Enforcement Administration agents set up surveillance outside a
house south of the city after getting an anonymous tip that it might
contain a marijuana-growing operation. Detective Douglas Bartelt
arrived with Franky and the two went up to the house, where Franky
quickly detected the odor of marijuana at the base of the front door
and sat down as he was trained to do.

That sniff was used to get a search warrant from a judge. The house
was searched and its lone occupant, Jardines, was arrested trying to
escape out the back door. Officers pulled 179 live marijuana plants
from the house, with an estimated street value of more than $700,000.

Jardines was charged with marijuana trafficking and grand theft for
stealing electricity needed to run the highly sophisticated operation.
He pleaded not guilty and his attorney challenged the search.

The trial judge agreed and threw out the seized evidence, but that was
reversed by an intermediate appeals court. Last April, a divided
Florida Supreme Court sided with the original judge.
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