By: Jim McLeod, Junior Editor
On October 31st, 2012, the Supreme Court justices heard oral arguments in two separate cases involving law enforcement’s warrantless use of drug-sniffing dogs. Law enforcement agencies throughout the country have shown an increasing dependency on the use of drug-detecting dogs, and these cases will certainly help to shape the limits on their use. Both cases are coming from the Florida Supreme Court, and it seems likely that the Court will rule against the warrantless use of drug dogs in one case, but not in the other.
In the first case, the Miami-Dade Police Department received an anonymous tip that Joelis Jardines was growing marijuana inside his home. A police officer went to Jardines’ home, without a warrant, and allowed a drug-sniffing dog to smell around the front door for a few minutes. Franky, the chocolate Labrador retriever with an impressive record of discovering drugs, alerted the officer to the smell of drugs inside the home by sitting down. The police used Franky’s alert as justification to attain a search warrant, and subsequently raided the home where they found more than 25 pounds of marijuana.
The question presented to the Court is whether the police officer’s use of a drug-sniffing dog at a private residence constitutes an “unreasonable search” in violation of the Fourth Amendment. A decade ago, in Kyllo v. United States, the Court ruled that officers must have a warrant to use thermal-imaging devices outside a home to detect the presence of marijuana, concluding that it amounted to a search. In that case, the Court stated: “At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.”
Howard Blumberg, attorney for Jardines, argued that drug-sniffing dogs are no different from the thermal-imaging devices in that they are “used to explore details of the home that would previously have been unknowable without physical intrusion.” The Supreme Court justices seemed to agree with Blumberg, noting that if these “searches” were allowed, police could apply the procedure in a discriminatory way by targeting certain areas and sweeping through the neighborhood.
Gregory Garre, attorney for Florida police, argued that there is implied consent for police, salesmen, Girl Scouts or trick-or-treaters to go up to someone’s front door, and that this is no different. The justices replied that there is no implied consent for a policeman to bring a large animal to sniff around the home for the sole purpose of detecting contraband.
In the second case, a deputy from the Liberty County Sheriff Department in Florida stopped Clayton Harris for an expired license plate on his truck. Aldo, a German shepherd, sniffed and alerted the officer to the presence of contraband; the officer then searched Harris’ truck and found over 200 pseudoephedrine pills, which can be used to make methamphetamines. A divided Florida Supreme Court concluded that Aldo’s alert was insufficient to show probable cause, due to questions concerning the dog’s reliability.
In Illinois v. Caballes, the Supreme Court upheld the use of a drug-sniffing dog to establish probable cause during a routine traffic stop. “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.”
The question presented in the Harris case focuses on whether Aldo’s reliability as a drug-detecting dog is sufficient to show probable cause during a routine traffic stop. Aldo’s credentials are not quite as impressive as Franky’s; during his career, Franky discovered more than 2.5 tons of marijuana and 80 pounds of cocaine. Aldo, on the other hand, has received far less training and certification, and has proven to be less reliable in sniffing out drugs. When drugs are discovered only a fraction of the time after a drug-detecting dog alerts an officer, one of two things is happening: either the alert is not an effective tool in detecting contraband, or the officer is signaling the dog to alert because of the officer’s own suspicions. There are currently no national or state certification standards for drug-detecting dogs, but public defender Glen Gifford urges the justices to consider the dog’s track record in determining the propriety of the search.
Many states have sided with Florida law enforcement officials, stating in an amici brief that “all States have a keen interest in combating illegal drugs” and that “drug-detection dogs play a vital role in these efforts.” “[T]he Florida Supreme Court’s decision jeopardizes the States’ ability to use this crucial tool to discover illegal drugs prior to their distribution.”
The Obama Administration has also voiced its opinion on the issue: “[T]his Court should reaffirm that the use of a narcotics-detection dog, whether outside a vehicle, a package, or a home, does not infringe legitimate privacy expectations and therefore does not constitute a Fourth Amendment search.” Both of these cases will have far-reaching implications on the future use of police dogs in discovering contraband in people’s homes and vehicles. While one case could lead to drug-sniffing canines having full discretion in selecting private homes to be searched, the other could require dogs to put together résumés to establish their reliability in sniffing out illegal drugs.
 Kyllo v. United States, 533 U.S. 27 (2001).
 Id. at 31.
 Illinois v. Caballes, 543 U.S. 405 (2005).
 Id. at 410.
 Brief for Texas, et al. as Amici Curiae in Support of Petitioner, Florida v. Jardines (No. 11-564).
 Brief for the United States as Amicus Curiae Supporting Petitioner, Florida v. Jardines (No. 11-564).