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?

Should law enforcement officials be made to use more than just a dog’s nose and his reaction to obtain a search warrant? After all, dogs can make mistakes, too.

There always will be questions as to whether a dog’s reaction will count as probable cause. A defendant will challenge it and say that a dog’s sniff is unreliable. But it’s generally thought, maybe not proven, that it will create sufficient probable cause to justify a warrant. It’s case-by-case. Some judges will want more evidence, and normally there is more. If you call the drug sniff itself a search, you have to say what justifies that search. Everything depends on whether the dog’s sniff counts as a search under the Fourth Amendment.

Now, a dog’s nose would only reveal the presence of drugs, and not really anything else. So could it be argued that no privacy is being violated?

You hit it on the head. The government is going to argue that a well-trained dog doesn’t alert to anything other than the presence of illegal drugs. That’s not like a thermal detection device which detects a lot of things. That’s going to weigh in favor of the government. The fact that it’s a house will weigh in favor of the defendant.

From the standpoint of legality, where does that leave police dogs in their use of searching for illicit material?

In other cases, on dogs in airports and cars, the court isn’t going to overrule those. If the government loses here, it will be in a way that’s connected to the house. It wouldn’t undermine the use of drug-sniffing dogs.

For that matter, would this speak to searches for materials used by would-be terrorists like weapons and bomb mechanisms?

You’ve got drug-sniffing dogs that are trained to alert on other suspicious materials, and I think the same principle applies. Just like you can use the dogs to detect drugs, you use them to detect other materials like bombs. The question is, given that we’re dealing with the home, even though the dogs don’t count as a search in other contexts, does using the dog in this fashion cross the line of expectation of privacy?

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