There may have been more talk about dogs at the U.S. Supreme Court than at the American Kennel Club Wednesday, as the justices heard arguments in two cases involving the state of Florida and drug-sniffing police dogs. Each dealt with the question of whether the use of drug-detecting canines to obtain probable cause for a subsequent search is itself an unreasonable search and a violation of the Fourth Amendment. Attorney Gregory Garre, representing the state of Florida in both cases, argued it is not."Are you for or against the dog this time?" Justice Scalia asked when Garre returned for the second case, Florida v. Harris.
"For it again, Your Honor," Garre replied.
In Florida v. Jardines, heard earlier in the day, Garre argued in defense of a "drug sniff" used by police in the Miami area to obtain probable cause for a warrant to search the home of Joelis Jardines, where they discovered more than 25 pounds of marijuana. Acting on a tip from a citizen "Crime Stopper," police took a Labrador retriever named Franky onto the suspect's property and up to the door of the house, where the dog signaled he had detected the odor or marijuana. The Florida Supreme Court ruled the evidence obtained in the search that followed was inadmissible, finding the warrantless sniffing at the defendant's door to be an "unreasonable government intrusion into the sanctity of the home."
Both Garre and Assistant Solicitor General Nicole Sharasky, appearing on behalf of the U.S. Justice Department in support of Florida, began their arguments by asserting that even in the home there is no reasonable expectation of privacy regarding contraband. The claim did not sit well with Justice Anthony Kennedy, who branded it a "circular argument."
"The argument we're having [is] about whether there is a reasonable expectation in society generally," he told Sharasky. "But this idea that, oh, well, if there is contraband, then all the -- all the rules go out the window, that's just circular, and it won't work for me, anyway. "
| Ginsburg asked if that meant police could take a drug-detecting dog to the door of every house on a street or every apartment in a building. "Your Honor, they could do that, just like the police could go door to door and to knock on the doors and hope that they will find out evidence of wrongdoing that way," Garre replied. |
"Your Honor, they could do that, just like the police could go door to door and to knock on the doors and hope that they will find out evidence of wrongdoing that way," Garre replied. He added the police would effectively be prevented from doing that by "the restraint on resources and the check of community hostility."
Much of the morning's argument centered on the question of a homeowner's "implied consent," as recognized in custom and common law, for someone to approach the door of a home. Garre suggested the police presence at Jardines' door was no more intrusive than that of a door-to-door salesman or someone selling Girl Scout cookies. Justice Antonin Scalia was not buying that argument. Both the house itself and the resident's property surrounding it are protected from unauthorized searches he said.
"I think you cannot enter the protected portion of a home, which is called the curtilage, with the intention of conducting a search, that that is not permitted. I think our cases establish that," Scalia said.
"The reason for the officer going onto protected property, if he's going on just to knock on the door to sell tickets to the Policeman's Ball, that's fine. If he's going on to conduct a search, that's something else." The justices raised questions as to whether the right to approach someone's door applied to dogs as well as humans. Garre answered that the policeman is entitled to bring a dog with him as long the dog is on a leash. What if, asked Justice Ginsburg, there is a "no dogs allowed" sign on the lawn?
"I think that would be different," Garre answered. "Homeowners can restrict access to people who come up to their front door by putting gates or a sign out front."