Saturday, November 3, 2012

Supreme Court takes up drug sniffing dogs

Adam Liptak of the New York Times wrote about the U.S. Supreme Court hearing arguments this week in the case of drug-sniffing dogs.  According to Liptak, the Supreme Court seemed open to limiting their use outside homes but not near cars.

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.

According to Liptak, 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.

Liptak continued:

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 this week.

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.”

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., according to Liptak. 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.

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?”

Counsel 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.”

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