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.

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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.

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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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