To Sniff or Not to Sniff? Supreme Court to Decide if Drug Dog’s Nose Went Too Far

If a dog smells drugs outside of a private home, should it allow police to get a search warrant? Or is it a violation of Fourth Amendment protections?

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Alan Diaz / AP

Franky's super-sensitive nose is at the heart of a question being put to the U.S. Supreme Court: Does a police K-9's sniff outside a house give officers the right to get a search warrant for illegal drugs, or is it the sniff itself a search that violates the home's sanctity?

Franky the chocolate Labrador probably never thought his nose would cause such a big debate. But it’s opened up an argument that will be heard by the U.S. Supreme Court about when using a dog for a drug search goes too far. Justices decided last week to hear the case of Florida v. Jardines, in which, back in 2006, Franky smelled marijuana growing inside a Dade County, Fla., home with a closed front door. Police officers felt that was enough to get a search warrant, and after obtaining it apprehended the house’s occupant Joelis Jardines, busting him with over $700,000 in weed. But Jardines attorney argued that Franky’s sniff was an unconstitutional intrusion, which violated Jardine’s Fourth Amendment protections against illegal search and seizure.

The trial judge agreed and sided with Jardines, but the case went back and forth through the state’s courts all the way to Florida’s Supreme Court until state attorneys decided to take it to Washington, arguing that with illegal drugs, a person’s privacy is not necessarily protected because a dog’s sniff isn’t a warrant-required search. TIME talked to Rick Garnett, a law professor at the University of Notre Dame who specializes in constitutional law. He says the case brings two very different viewpoints regarding what constitutes a search.

(VIDEO: Your Fourth Amendment Right to Privacy)

What are the pro and con arguments to this being a violation of the Fourth Amendment?

This is at the intersection of two equally settled and valid strands of court precedent. On one side, you’ve got the Kyllo v. United States case, when the court said using a thermal device when you’re standing outside of a house counts as a search. On the other you have a dog’s sniffs detecting illegal activity that you normally wouldn’t be able to see — and the question is, does that count as a search?

Courts have moved from case to case to give us criteria as to what counts as a search. With respect to the dog’s sniffs, the (lower) court in the past may have said the dog isn’t going anywhere he doesn’t have the right to be, and nobody has a privacy interest in what the dog detects, so it’s not a search. Now you’ve got a situation where privacy interests are at their highest in the homes and if a dog has the right to be outside of the house and he’s detecting the scents, why isn’t this like the sniffs at the airports? But let’s say the dog is being looked at like one of those thermal detection devices: if you think of where that device is being deployed, does the cop have the right to be at a place? There are really good arguments going both ways.

But drug dogs are used at airports and other places to find evidence all the time, why wouldn’t that go against the Fourth Amendment?

There were cases where that was challenged. If they take your luggage from you, lock it up and go get a dog, that’s a search. But if a dog is walking through the airport and detects something, the courts say that’s not a search. Nobody owns the smells wafting through an airport. This case is different because the info here reveals information about the inside of the home.

PHOTOS: The Art of the Drug Seizure

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