Last Friday the Supreme Court agreed to hear Florida v. Jardines, which raises the question of whether police need probable cause to use a drug-detecting dog outside someone's home. As I noted last week, the Court has said that a dog sniff in other contexts—luggage inspection at an airport and car inspection during a traffic stop—does not amount to a "search" under the Fourth Amendment and therefore does not require a warrant. The question is whether that same analysis applies to sniffing a residence, where the expectation of privacy is especially strong. Even if we accept the dubious premise that police dogs infallibly detect the presence of contraband and nothing else, using them immediately outside a home certainly seems more intrusive than using them at an airport or on the side of a road. In ruling that such an inspection requires a warrant, the Florida Supreme Court warned that police otherwise would have complete discretion to subject anyone, for any reason, to the "public spectacle" of cops camped out on their doorstep for hours while Franky and his handler conduct what looks an awful lot like a search of a suspect's private property. Furthermore, courts view a dog's "alert" as probable cause for a warrant, even though that signal can be misperceived, triggered by a handler's subconscious cues, erroneously displayed by a poorly trained dog, or simply faked by an officer determined to get a bad guy. The practical result is that probable cause to search anyone's house can be manufactured at any time, unless the courts insist on real evidence before they let the dogs out.
[via the Drug War Chronicle]