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On the morning of December 6, 2006, based on an unverified Crime Stoppers tip received a month earlier, Miami-Dade Police Detectives William Pedraja and Douglas Bartlet approached the Princeton, Florida, home of Joelis Jardines, where the tipster had said marijuana was growing. They were accompanied by several DEA agents and Franky, a chocolate Labrador retriever. Bartlet brought Franky up to the entrance of the house, where he sniffed around for a minute or two before sitting down at the front door. After Bartlet announced that Franky had alerted to the house, Pedraja approached the front door and claimed he could smell marijuana, although Bartlet said he did not.
Based on Franky’s alert, Pedraja obtained a search warrant that police executed later that day, finding 179 marijuana plants, growing equipment, and Jardines escaping out the back door. Charged with trafficking in more than 25 pounds of cannabis, a first-degree felony punishable by up to 30 years in prison, Jardines successfully argued that the evidence against him should be suppressed. The Florida Supreme Court concluded that the search of Jardines’ home was illegal because Franky’s inspection of the area near the front door was itself an illegal search.
Since the U.S. Supreme Court has said that using a dog to check luggage at the airport or a car during a traffic stop does not count as a search, you might think that Franky’s sniffing at Jardines’ doorstep would not qualify as a search either. But during oral arguments the justices seemed inclined to agree that homes are different. Jardines’ lawyer, Howard Blumberg, argued that “when a police officer goes up to the front door with a narcotics detection dog” he has “physically trespassed, because there is no consent to do that, onto a constitutionally protected area, the curtilage of the home”—that is, the area immediately surrounding it. That argument appeared to be crafted with Scalia in mind. In U.S. v. Jones, the 2012 decision in which the Court ruled that tracking a vehicle by attaching a GPS device to it requires a warrant, Scalia’s majority opinion emphasized the physical trespass required to install the device. “If you…follow the test set forth in Jones and apply it to what happened here,” Blumberg said, “it is a trespass.”
Scalia signaled that he was receptive to this approach even before Blumberg got up to speak. “Police are entitled to use binoculars to look into [a] house if the residents leave the blinds open,” he told Gregory Garre, who represented Florida in this case as well as Harris, but “they’re not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point.…Why isn’t it the same thing with the dog?…It seems to me crucial that this officer went onto the portion of the house…as to which there is privacy and used a means of discerning what was in the house that should not have been available in that space.…Police officers can come there to knock on the door…[but] when the purpose of the officer’s going there is to conduct a search, it’s not permitted…He’s going there to search, and he shouldn’t be on the curtilage to search.”
Scalia also wrote the majority opinion in Kyllo v. U.S., the 2001 case in which the Court held that using a thermal imager to measure the heat radiating from a home (as evidence of grow lamps) requires a warrant. Justice Ruth Bader Ginsburg read Garre a passage from that decision, which she suggested applies to drug-sniffing dogs as well: “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.”
Garre responded by arguing that “Franky’s nose is not technology,” since he is merely “availing himself of God-given senses.” But in its natural state, Franky’s nose does not tell police when molecules of certain chemical compounds are floating through the air; that requires human intervention, based on technical knowledge, aimed at turning a descendant of wolves into a law enforcement tool. “The dog per se is not a technology,” says Myers, but “the dog is part of a technology that has been applied to a particular use.” The main point, when it comes to expectations of privacy, is that Franky, like a thermal imager, enables police to find evidence they could not detect with their own unaided senses. They can thereby obtain information about what is happening inside a home that they otherwise could get only by entering it.
‘Dogs Are Not Magic’
But dogs do not perform this function inerrantly. The notion that a dog sniff is not a search and the notion that a dog sniff justifies a search are both based on overblown notions of canine capabilities, a fact that makes the implications of those ideas all the more troubling. A cop already has the authority to stop cars for minor (and possibly imagined or invented) traffic violations that people routinely commit. If you give him a dog he can deploy during any stop to justify a search, a dog whose alerts may be imagined, invented, or triggered by deliberate or subconscious cues, he now has the ability to search cars at will.
In Caballes, the decision that gave police this ability, Justice Souter warned that “an uncritical adherence to Place [which held that a sniff is not a search] would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks.” During the oral arguments in Harris and Jardines, Justices Sotomayor and Ginsburg likewise worried aloud about police taking dogs from door to door in an apartment building or from house to house on a street. Garre, Florida’s lawyer, argued that limited resources and “community hostility” would discourage such operations.
But they are already happening. In 2011, for instance, The Roanoke Times reported that police in Pulaski, Virginia, had been using dogs to randomly search for drugs in apartment complexes “for a couple of years.” Last spring the Fargo Housing Authority in North Dakota announced plans for similar sweeps. Students as young as 6 have been randomly subjected to dog sniffs at public schools throughout the country for decades.
Such olfactory dragnets would be disturbing enough with dogs that are 100 percent accurate. But with actual dogs, which could be wrong most of the time or even nine times out of 10, they are little more than pretexts for police to search wherever and whenever they please.
“Dogs can be a very good and useful tool,” Myers says. “But people have gotten both lazy and superstitious about that use. Dogs are not magic.”