Pubdate: Wed, 27 Mar 2013
Source: Arkansas Democrat-Gazette (Little Rock, AR)
Copyright: 2013 Associated Press
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Author: Jesse J. Holland, the Associated Press
Page: 4A

SNIFFS REQUIRE WARRANT, SUPREME COURT SAYS

WASHINGTON (AP) - The Supreme Court 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, a decision 
that may limit how investigators use dogs' sensitive noses to search 
out drugs, explosives and other items hidden from human sight, sound and smell.

The high 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 a person has the Fourth Amendment right 
to be free from the government's gaze inside their home and in the 
area surrounding it, which is called the curtilage.

"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. "And the officers here had all four of their 
feet and all four of their companion's, planted firmly on that 
curtilage - the front porch is the classic example of an area 
intimately associated with the life of the home."

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

The four justices who dissented were Chief Justice John Roberts and 
Justices Stephen Breyer, Anthony Kennedy and Samuel Alito.

It's not trespassing when a mail carrier comes on a porch for a brief 
period, Alito said. And that includes "police officers who wish to 
gather evidence against an occupant," Alito said. "According to the 
court, however, the police officer in this case, Detective Bartelt, 
committed a trespass because he was accompanied during his otherwise 
lawful visit to the front door of the respondent's house by his dog, 
Franky. Where is the authority evidencing such a rule?"

Alito also said that the court's ruling stretches expectations of 
privacy too far. "A reasonable person understands that odors 
emanating from a house may be detected from locations that are open 
to the public, and a reasonable person will not count on the strength 
of those odors remaining within the range that, while detectable by a 
dog, cannot be smelled by a human."

It was not the dog that was the problem, Scalia said, "but the 
behavior that here involved use of the dog."

"We think a typical person would find it 'a cause for great alarm' to 
find a stranger snooping about his front porch with or without a 
dog," Scalia said. "The dissent would let the police do whatever they 
want by way of gathering evidence so long as they stay on the base 
path, to use a baseball analogy - so long as they 'stick to the path 
that is typically used to approach a front door, such as a paved 
walkway.' From that vantage point they can presumably peer into the 
house with binoculars with impunity. That is not the law, as even the 
state concedes."

Thousands of dogs are used by governmental organizations around the 
United States to track criminals, sniff out illegal items like 
explosives at airports and search wreckage sites like bombed 
buildings and hurricane or earthquake-destroyed homes for injured people.

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 pot 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 innocent and his attorney challenged the 
search, claiming Franky's sniff outside the front door was an 
unconstitutional law enforcement intrusion into the home.

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

That ruling was upheld by the Supreme Court's decision, the latest in 
a long line of disputes about whether the use of dogs to find drugs, 
explosives and other illegal or dangerous substances violates the 
Fourth Amendment protection against illegal search and seizure. The 
court has OK'd drug dog sniffs in several other major cases. Two of 
those involved dogs that detected drugs during routine traffic stops. 
In another, a dog hit on drugs in airport luggage. A fourth involved 
a drug-laden package in transit.

The difference in this case, the court said, is that Franky was used at a home.

"A drug detection dog is a specialized device for discovering objects 
not in plain view (or plain smell)," Kagan wrote in a concurring 
opinion. "That device here was aimed at a home - the most private and 
inviolate (or so we expect) of all the places and things the Fourth 
Amendment protects. Was this activity a trespass? Yes, as the court 
holds today. Was it also an invasion of privacy? Yes, that as well."

The case was Florida v. Jardines, 11-564.
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