Justices Weigh Drug Sniffs by Police Dogs

By Mark Walsh — October 31, 2012 6 min read
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The U.S. Supreme Court on Wednesday heard arguments in two cases with potential implications for the use of drug-sniffing dogs in public schools.

The cases before the court involve two separate contexts for the police use of drug-detection dogs—one outside the front door of a suspected marijuana “grow house,” and the other of a vehicle. But the legal issues involved could apply to school uses of such dogs, which have not been extremely widespread but have raised vexing questions in those places where they have been used.

In one case, the question is whether a police dog’s sniff at the front door of a home ever constitutes a search under the Fourth Amendment. The Supreme Court has so far held in various contexts that drug-dog sniffs are not a search for Fourth Amendment purposes. The other involves whether courts may impose training and certification requirements on such dogs.

“Humans have relied upon dogs for law enforcement-related purposes, due to their extraordinary
sense of smell, for centuries,” Gregory G. Garre, who was representing the state of Florida in both cases, told the justices. “Dogs, trained drug-detection dogs and explosive-detection dogs, are invaluable members of the law enforcement community today.”

Public defenders for the criminal defendants in both cases raised concerns about the scope of such dog sniffs, including in the schools.

Under Florida’s view of the Fourth Amendment, one public defender wrote in his 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 take a narcotics detection dog 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.”

Differing Circumstances

That brief was filed on behalf of Joelis Jardines, whose home was approached in 2006 by a drug-sniffing dog and handler with the Miami-Dade County, Fla., police department. The dog, Franky, was trained to detect the odor of marijuana, cocaine, heroin, and other drugs.

Franky alerted at the front door of the house, which the police used as the basis to obtain a warrant to search the house. They found numerous marijuana plants and growing equipment inside. Jardines was arrested, but both a trial court and the Florida Supreme Court, which held 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. That case is Florida v. Jardines (No. 11-564).

The second case is Florida v. Harris (No. 11-817) and involves a 2006 traffic stop of Clayton Harris’s truck outside of Tallahassee, Fla. A sheriff’s department officer had his drug-detection dog, Aldo, sniff around the exterior of the truck. Aldo alerted for the odor of drugs at the door’s handle, and based on that, and the nervousness of Harris, the officer felt he had probable cause to search the cab of the truck, which turned up ingredients to make methamphetamines.

The Florida Supreme Court ruled in Harris’s favor, holding that the search evidence should have been suppressed. The court said probable cause for searches after a dog alerts only may be established after the state has proven the 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.

Florida appealed both rulings to the Supreme Court.

“These dogs have been used and are being used in many settings across the country and across the world today,” Garre said during the Harris arguments. “And the reason they are being used is because the people who work with them know that they are reliable.”

Joseph R. Palmore, an assistant to the U.S. solicitor general, also argued against the Florida Supreme Court’s list of requirements.

“I think it’s critical ... that the courts not constitutionalize dog-training methodologies or hold mini-trials with expert witnesses on what makes for a successful dog training program,” Palmore said. “Because ... the government has critical interests, life and death interests, that it stakes on the reliability of these dogs.”

He noted that there were “39 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy. So, in situation after situation, the government has, in a sense, put its money where its mouth is, and it believes at an institutional level that these dogs are quite reliable.”

The criminal defendants and their allies argue, among other things, that such dog sniffs can be quite unreliable.

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

Implications for Schools

In his brief, Gifford cited several school cases, including one in Texas in which a dog falsely alerted to a student’s perfume because it gave off an odor the dog thought was a drug, and another in Indiana in which a dog alerted to a 13-year-old female student, which led school officials to require the student to disrobe. No illegal drugs were found, and it turned out the student had been playing that morning with one of her own dogs, which was in heat.

That case was back in 1980, and it is less common now for students themselves to be subject to sniffs by drug-detection dogs. But it is more common for school authorities to invite the police and detection dogs into the schools to sniff lockers or parking lots. Another tactic is requiring students to leave their backpacks to be sniffed by detection dogs.

In 2010, a Texas state appellate court upheld the delinquency finding for a student whose backpack contained marijuana. The Austin, Texas, police brought a detection dog into a high school to conduct a classroom-by-classroom sniff of student’s belongings. The detection dog alerted to one student’s backpack, and a search turned up marijauna.

The Texas court held that the dog sniff of the student’s backpack “implicated a relatively minor privacy interest” and that “the seizure effectively addressed the problem of student drug use and served the important governmental interest in protecting the students’ safety and health.”

Justices’ Concerns

The Supreme Court arguments in the Florida cases did not veer into school situations, but several justices expressed concerns about where upholding the front-door search in the Jardines case 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.

Garre said the police could do that, but the court has long recognized that a limit on resources and the potential for community hostility have limited such a wide-ranging tactic.

It appeared that a majority of the court was hostile to Florida’s arguments in the home-search case.

Justice Antonin Scalia, who wrote the opinion for the court in a 2001 case that rejected the police use of thermal-imaging technology to detect powerful lamps used to grow marijuana, 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,” he said.

But in the Harris case, involving the reliability of detection dogs, the justices seemed less inclined to accept the Florida Supreme Court’s broad training and certification mandates.

The police “like to search where they’re likely to find something, and that only exists when the dog is well-trained,” Scalia said to the public defender representing Harris. “It seems to me they have every incentive to train the dog well.”

Decisions in the cases are expected by next June.

A version of this news article first appeared in The School Law Blog.