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Published in Print: November 7, 2012, as School Impact Possible in Drug-Dog Cases

Supreme Court Takes Up Drug-Sniffing Dog Cases

Supreme Court eyes sniff-search issues, canine training

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The U.S. Supreme Court heard arguments last week in two cases that, while not directly arising from practices in public schools, could alter the landscape for the use of drug-sniffing dogs to battle student drug abuse.

The Supreme Court has not ruled directly on school uses of drug-sniffing dogs, and last week's arguments did not veer into school situations. The issue has, however, led to school-related cases in the lower courts.

In the first of the two cases involving such dogs, Florida v. Jardines (No. 11-564), the question is whether a police dog's sniff at the front door of a home constitutes a search under the Fourth Amendment, and thus must be preceded by a warrant or probable cause. The Supreme Court has held in several contexts, such as for travelers' luggage or vehicles at checkpoints, that drug-dog sniffs are not a search. But the justices have viewed the home as having greater sanctity for privacy purposes.

The second case involves whether courts may impose training and certification requirements on contraband-detecting dogs.

Lawyers for the defendants in both cases have raised concerns about the scope of such dog sniffs, including in the schools.

'Sniff the Students'

Under Florida's view of the Fourth Amendment, public defenders wrote in their brief, "police officers would be free to randomly take a narcotics-detection dog up to the front door of selected houses in a suburban neighborhood, or ... up to the front door of every apartment in an inner-city apartment complex selected by the police, or walk a narcotics dog up and down the halls of a school to sniff the students passing by."

That brief was filed on behalf of Joelis Jardines, whose home was approached in 2006 by a drug-sniffing dog and its handler with the Miami-Dade County, Fla., police department. The dog alerted at the front door, and the police used its reaction as the basis for obtaining a warrant. A subsequent search found numerous marijuana plants and growing equipment inside. The Florida Supreme Court ruled, though, that the use of a drug-detection dog at the door of the home was a search under the Fourth Amendment and had to itself be justified by probable cause.

The second case, Florida v. Harris (No. 11-817), involves a sniff outside a vehicle, and the Florida Supreme Court used that case to require the state to prove a detection dog's reliability by presenting training and certification records, including field-performance records and evidence about the experience and training of the officer handling the dog.

The state of Florida appealed both decisions to the U.S. Supreme Court.

"Humans have relied upon dogs for law-enforcement-related purposes, due to their extraordinary sense of smell, for centuries," Gregory G. Garre, a Washington lawyer who represented Florida in both cases, told the justices.

Lawyers for the defendants argue that such dog sniffs can be unreliable, subject to false alerts, bad days, and conscious or unconscious "cuing" by their handlers.

"Dogs make mistakes," said Glen P. Gifford, an assistant public defender representing Mr. Harris. "Dogs get excited and will alert to things like tennis balls in trunks, or animals, that sort of thing."

Implications for Districts

In a brief, Mr. Gifford cited several school cases in the lower courts, including one in which a dog falsely alerted to a student's perfume and another in Indiana in which a dog alerted to a 13-year-old female student, who did not have drugs but who had recently been playing with her own dog, which was in heat.

In that 1980 Indiana case, Doe v. Renfrow, the U.S. Court of Appeals for the 7th Circuit, in Chicago, upheld drug dragnets of students. The Supreme Court declined to review the decision the next year, prompting a strong dissent from Justice William J. Brennan Jr.

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"I cannot agree that the Fourth Amendment authorizes local school and police officials to detain every junior and senior high school student present in a town's public schools and then, using drug-detecting, police-trained German shepherds, to conduct a warrantless, student-by-student dragnet inspection" for drugs, Justice Brennan wrote.

In 1982, in the Texas case involving the perfume, the U.S. Court of Appeals for the 5th Circuit, in New Orleans, struck down dog sniffs of students but upheld the use of that tactic for searching student lockers and cars.

More recently, a Texas state appellate court in 2010 upheld the use of detection dogs for searches of student belongings, such as backpacks, outside the presence of the students.

Justices' Concerns

At last week's argument in the Jardines case, several Supreme Court justices expressed concerns about where upholding the front-door search might lead.

"The police could take a dog and go down every house on the street, every apartment in the building?" Justice Ruth Bader Ginsburg asked.

Justice Antonin Scalia, who has sided with the court's more liberal members on Fourth Amendment issues involving the home, seemed to be equally concerned about the use of detection dogs at the front door.

"It seems to me crucial that this officer went onto the portion of the house ... [where] there is privacy, and used a means of discerning what was in the house that should not have been available," Justice Scalia said.

Vol. 32, Issue 11, Pages 21-22

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