From Norml

Under the U.S Supreme Court: To sniff or not to sniff

http://www.upi.com/Top_News/US/2012/06/24/Under-the-US-Supreme-Court-To-sniff-or-not-to-sniff/UPI-65491340523000/

WASHINGTON, June 24 (UPI) — The U.S. Supreme Court goes to the dogs next
term in two Florida cases involving police canines named Franky and Aldo,
and the question: To sniff or not to sniff?

Creaky groaners aside, the cases deal with a serious issue. The security of
Americans in their homes and vehicles versus how far police can go when
using dogs to determine the presence of drugs or other contraband.

At stake is not just whether police can use a very effective tool to
investigate and arrest felons, but the limits on law enforcement when it
subjects anyone, guilty or innocent, to invasive sniffing or other types of
surveillance.

Supreme Court precedent on police snooping around the home might appear to
be all over the map, but it does have a certain logic.

In 2001′s Kyllo vs. U.S., the high court ruled 5-4 police intrusion has
limits. A federal government agent used a “thermal imaging device” to scan
a triplex in Florence, Ore., without a warrant to determine whether
marijuana was being grown.

The scan showed Danny Kyllo’s garage was hot compared to the rest of his
home and the neighborhood, consistent with the high-intensity lamps
typically used for indoor marijuana growing. A federal appeals court ruled
the scan constitutional, saying Kyllo had shown no expectation of privacy.

But the Fourth Amendment bans unreasonable searches and seizures.

The Supreme Court majority opinion, written by Justice Antonin Scalia,
reversed the appeals court, saying when the “government uses a device that
is not in general public use, to explore details of a private home that
would previously have been unknowable without physical intrusion, the
surveillance is a Fourth Amendment ‘search,’ and is presumptively
unreasonable without a warrant.”

In 2005′s Illinois vs. Caballes, the high court ruled 5-3 (a seriously ill
Chief Justice William Rehnquist took no part in the case) it was
constitutional to make a vehicle search when a drug-sniffing dog alerts
officers to contraband during a routine traffic stop.

Justice John Paul Stevens, in the majority opinion, said the ruling “is
entirely consistent with our recent decision that the use of a
thermal-imaging device to detect the growth of marijuana in a home
constituted an unlawful search. … Critical to that decision was the fact
that the device was capable of detecting lawful activity — in that case,
intimate details in a home, such as ‘at what hour each night the lady of
the house takes her daily sauna and bath.’ …. The legitimate expectation
that information about perfectly lawful activity will remain private is
categorically distinguishable from respondent’s hopes or expectations
concerning the non-detection of contraband in the trunk of his car. A dog
sniff conducted during a concededly lawful traffic stop that reveals no
information other than the location of a substance that no individual has
any right to possess does not violate the Fourth Amendment.”

Justice David Souter led the dissenters.

“I would hold that using the dog for the purposes of determining the
presence of marijuana in the car’s trunk was a search unauthorized as an
incident of the speeding stop and unjustified on any other ground,” he said.

In one of the canine Florida cases coming up next term, the justices are
being asked to decide whether allowing a dog to drug-sniff at the front
door of a suspected grow house “is a Fourth Amendment search requiring
probable cause.”

“Probable cause” to suspect a crime is the threshold allowing a police
officer to make an arrest, conduct a search or request a warrant from a
judge.

The Fourth Amendment of the U.S. Constitution says: “The right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things
to be seized.”

Florida’s Constitution reinforces that right in almost identical language,
and includes a ban “against the unreasonable interception of private
communications by any means.”

In November 2006, the Miami-Dade Police Department received a Crime
Stoppers tip that Joelis Jardines was growing marijuana in his house. A
month later, a police detective with members of a drug task force that
included several U.S. Drug Enforcement Agency agents conducted surveillance
at Jardines’ house.

A canine officer went up to the front porch with Franky, who alerted by
sitting down. After the dog left, the detective knocked on the door to get
consent for a search, without response. He did smell marijuana, court
records said, and heard the sound of a constantly running air conditioner
– in the officer’s experience, a sign of a drug operation.

Using the dog sniff and his own observations, a detective got a search
warrant. The officers conducted a search and “seized numerous live
marijuana plants. A DEA agent arrested Jardines as he attempted to flee
through a rear door of the house,” the state’s petition to the Supreme
Court said.

Jardines was charged with trafficking in excess of 25 pounds of cannabis, a
first-degree felony, and grand theft for stealing more than $5,000 in
electricity from Florida for the grow lights.

His lawyer argued the dog sniff and the detective’s sniff violated the
Fourth Amendment. The trial judge granted a motion to suppress the
evidence, saying the initial search was illegal.

Though an intermediate court reversed, the Florida Supreme Court also
suppressed the evidence, relying on the Supreme Court’s decision in
Illinois vs. Caballes. Where was the probable cause?

“First, the dog ‘sniff test’ that was conducted in the present case was an
intrusive procedure,” the state supreme court said. ” … [T]he ‘sniff
test’ was a sophisticated undertaking that was the end result of a
sustained and coordinated effort by various law enforcement agencies. On
the scene, the procedure involved multiple police vehicles, multiple law
enforcement personnel, including narcotics detectives and other officers,
and an experienced dog handler and trained drug detection dog engaged in a
vigorous search effort on the front porch of the residence. Tactical law
enforcement personnel from various government agencies, both state and
federal, were on the scene for surveillance and backup purposes. The entire
on-the-scene government activity — i.e., the preparation for the ‘sniff
test,’ the test itself and the aftermath, which culminated in the
full-blown search of Jardines’ home — lasted for hours. The ‘sniff test’
apparently took place in plain view of the general public. There was no
anonymity for the resident.

“Such a public spectacle unfolding in a residential neighborhood will
invariably entail a degree of public opprobrium, humiliation and
embarrassment for the resident, for such dramatic government activity in
the eyes of many — neighbors, passers-by and the public at large — will
be viewed as an official accusation of crime,” the state court opinion
said. “Further, if government agents can conduct a dog ‘sniff test’ at a
private residence without any prior evidentiary showing of wrongdoing,
there is nothing to prevent the agents from applying the procedure in an
arbitrary or discriminatory manner, or based on whim and fancy, at the home
of any citizen. Such an open-ended policy invites overbearing and harassing
conduct. Accordingly, we conclude that a ‘sniff test,’ such as the test
that was conducted in the present case, is a substantial government
intrusion into the sanctity of the home and constitutes a ‘search’ within
the meaning of the Fourth Amendment. As such, it must be preceded by an
evidentiary showing of wrongdoing.”

State officials told the U.S. Supreme Court in a brief besides ignoring
Caballes, the Florida Supreme Court created “a new test for whether
officers’ conduct is a search. Seeking to avoid applying Caballes, the
Florida Supreme Court fashioned a new test which focused on the surrounding
circumstances rather than properly on the dog sniff itself. This new test,
however, violates a plethora of this [U.S. Supreme] Court’s Fourth
Amendment cases. This court should disavow the Florida Supreme Court’s
newly formulated Fourth Amendment test.”

The other Florida dog case involves a valid traffic stop. Clayton Harris
was stopped in Liberty County by a sheriff’s deputy canine officer for
driving on an expired license. The officer’s dog Aldo sniffed and alerted
for drugs on the driver’s side, causing the deputy to search the interior
of the car.

The deputy said he discovered supplies to manufacture methamphetamine,
which Harris admitted to making and using, the state said in a brief. After
his lawyer’s motion to suppress the evidence at trial was denied, Harris
pleaded no contest and was convicted of possessing the restricted chemical
pseudoephedrine with intent to use it to manufacture methamphetamine, in
violation of state law.

But the Florida Supreme Court eventually ruled evidence that a dog has been
trained and certified to detect narcotics, standing alone, is not
sufficient to establish the dog’s reliability for determining probable
cause. State officials said the Florida court relied heavily on law review
articles and an intermediate appellate court’s decision in another case,
which concluded that an officer who knows that his dog is trained and
certified can only suspect that a search based on a dog’s alert will yield
contraband, and mere suspicion cannot justify a search.

By holding a dog alerting to the residual odor of contraband may result in
subjecting a person and vehicle to an invasive search when there are no
drugs actually present, state officials said, the Florida Supreme Court
rejected the U.S. Supreme Court’s interpretation of the Fourth Amendment
that a dog sniff is not a search as it only reveals the presence of
contraband.

The Florida Supreme Court thus effectively negated “the narcotics detection
dog as an important crime fighting tool for law enforcement and society,”
state officials said.

Neither case has been scheduled for argument, but will probably be heard
some time before Christmas.

http://www.upi.com/Top_News/US/2012/06/24/Under-the-US-Supreme-Court-To-sniff-or-not-to-sniff/UPI-65491340523000/