Pubdate: Wed, 31 Oct 2012
Source: Los Angeles Times (CA)
Copyright: 2012 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248

WHO'S SNIFFING AT YOUR DOOR?

A Florida Case Involving the Use of a Police Dog Will Test the Limits 
of the 4th Amendment.

The Supreme Court has said that at the "very core of the 4th 
Amendment stands the right of a man to retreat into his own home and 
there be free from unreasonable governmental intrusion." The court's 
commitment to the sanctity of the home will be tested Wednesday by a 
case featuring as familiar a symbol of domestic life as the family 
home itself - a dog. Only in this case, the dog was not the 
householder's best friend but the police officer's.

The justices will decide whether police committed an unreasonable 
search when, acting on an anonymous tip, they deployed a 
drug-sniffing Labrador retriever named Franky at the Miami-area home 
of Joelis Jardines. The dog sniffed around outside the front door and 
gave the police the signal they were looking for, on the basis of 
which they obtained a warrant, and a search discovered marijuana. 
Jardines was charged with trafficking in more than 25 pounds of 
marijuana and stealing the electricity needed to grow it.

However, the Florida Supreme Court ruled that even though neither the 
police nor the dog entered the house without a warrant, the search 
was illegal. While this case is not identical to (or, as lawyers say, 
"on all fours with") its previous decisions safeguarding the privacy 
of the home, the U.S. Supreme Court should follow suit.

Clearly the police would have violated Jardines' 4th Amendment rights 
if they had entered his home before obtaining the warrant, with or 
without Franky. But since 1967, the court has recognized that an 
unconstitutional search need not involve physical trespass. In a 2001 
decision that is likely to loom large in Wednesday's oral arguments, 
the court ruled that federal agents violated the 4th Amendment when 
they trained a thermal imaging device at a home to determine if the 
building was generating the sort of heat associated with marijuana production.

Lawyers for the state of Florida can point to differences between 
that case and this one. Writing for the court in 2001, Justice 
Antonin Scalia observed that the heat-sensing machine was an example 
of "advancing technology" of a kind that potentially "could discern 
all human activity in the home." By contrast, drug-sniffing dogs are 
low tech and trained to detect only illegal activity. (How well they 
are trained is the issue in a separate case from Florida also to be 
argued Wednesday.)

But it shouldn't matter whether the privacy of the home is breached 
by a machine or a canine, and the fact that illegal activity may be 
going on inside the home doesn't negate the need for probable cause.

Finally, Florida argues that no search occurred because "even when 
Franky tracked odors to their strongest point at the base of 
Jardines' front door, he was breathing only the air outside the 
house." The court rejected a similar distinction in the thermal 
imaging case, in which the government unsuccessfully argued that the 
device detected "only heat radiating from the external surface of the house."

Scalia ridiculed this distinction between "off the wall" and "through 
the wall" surveillance. What mattered was that the device in that 
case, like the dog in this one, was detecting what was going on 
inside the house. Without a warrant or probable cause, that amounts 
to an unreasonable search, and the court should say so.
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MAP posted-by: Jay Bergstrom