High court rules against drug-sniffing dog search

David Jackson and Richard Wolf, USA TODAY | USATODAY

Correction: A previous version of this post stated an incorrect outcome of the case.

A drug-sniffing dog at your doorstep is a step too far, the Supreme Court has decided.

While the high court had ruled last month that a Florida police officer's use of a drug-sniffing dog to search a truck during a routine a traffic stop was OK, it drew the line Tuesday at the entrance to a private home.

Writing for a 5-4 majority, Justice Antonin Scalia said a dog sniffing at a house where police suspect drugs are being grown constitutes a search under the Fourth Amendment of the U.S. Constitution, and the circumstances did not justify the officers' entry to the home.

"This right would be of little practical value if the state's agents could stand in a home's porch or side garden and trawl for evidence with impunity," Scalia wrote in a majority opinion. "The right to retreat would be significantly diminished if the police could enter a man's property to observe his repose from just outside the front window."

Writing in dissent, Justice Samuel Alito wrote that dogs have long been used for law enforcement purposes, and that the homeowner in this case did not have a reasonable expectation of total privacy.

Wrote Alito: "A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that,while detectable by a dog, cannot be smelled by a human."

The ruling scrambled the court's normal ideological divisions.

Fellow conservative Clarence Thomas signed onto Scalia's opinion against the search, as did three members of the more liberal bloc: Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The dissenters included three of the more conservative court members -- Alito, Anthony Kennedy, and Chief Justice John Roberts -- as well as liberal member Stephen Breyer.

A pair of cases from Florida argued last year hinged on the Fourth Amendment's protection against unreasonable searches -- a protection the high court held in high esteem during its last term, when it ruled unanimously that police should have obtained a warrant before placing a GPS device on a drug suspect's car.

In another dog-sniffing case decided last month, the court ruled in favor of police who used a canine during a traffic stop.

Tuesday's ruling stemmed from a 2006 incident in which Miami-Dade police and the U.S. Drug Enforcement Administration set up surveillance on a house after being tipped to a possible marijuana growing operation. An officer went up to the house with a dog named Franky, who quickly detected the odor of pot. The sniff was used to obtain a search warrant from a judge.

Attorneys for occupant Joelis Jardines, who was arrested and charged with marijuana trafficking, challenged the search as unlawful. A trial judge agreed, and threw out the evidence; the Florida Supreme Court later sided with the trial judge.

During a Supreme Court hearing held on Halloween, justices raised questions about the drug sniffing at a private home, as opposed to a traffic stop.

The justices seemed amenable to the use of the dogs in general, without quarreling about their training and certification. But when the issue arrived on their doorstep, their reaction changed; dogs sniffing at the door, they reasoned, were far more intrusive than trick-or-treaters.

Justices Scalia and Kennedy had appeared to align with the court's four more liberal members against the actions of Franky, the police dog who detected marijuana in a Miami grow house only after spending several minutes sniffing around the front door.

Justice Kagan called that "a lengthy and obtrusive process." Justice Ginsburg said it could lead to random searches of "any home, anywhere."

Although modern technology didn't exist when the Founders wrote the Bill of Rights, dogs certainly did -- and they have been used reliably by police for a number of causes, including the search for victims of Superstorm Sandy, which occurred just days before oral arguments.

"Scotland Yard used dogs to track Jack the Ripper," said Gregory Garre, who represented Florida law enforcement.

"These dogs are quite reliable," agreed Joseph Palmore, representing the U.S. Justice Department, which sided with the state.

But Glen Gifford, an assistant public defender representing one of the defendants, begged to differ. "Dogs make mistakes," he said. "Dogs err."