16 November 2012

Sniff. Sniff. Search? Supreme Court to Rule Again on Whether Canine Sniff Constitutes a Search Under the Fourth Amendment

by Mary O'Rourke, Staff Writer

On October 31, the Supreme Court of the United States heard oral argument on two cases concerning whether a dog sniff is considered a “search” for Fourth Amendment purposes.  
The Court has ruled on this issue before, and has constantly held that dog sniffs are not searches under the Fourth Amendment, and as a result do not require a warrant or a prior showing of probable cause.  
In United States v. Place (1983), the Court held that it was not a constitutional violation for a police officer to use a drug detecting canine to sniff a defendant’s luggage without a warrant.  More recently, in Illinois v. Caballes (2005), the Court refused to deem a police officer’s use of a drug sniffing dog during a routine police stop a “search.”
© Alan Diaz/Associated Press
Although both cases presented issues concerning the constitutionality of warrantless canine sniffs, the facts differed in each case. 
The first new case the Court heard was Florida v. Jardines, where police officers used a drug sniffing dog to approach a suspected “drug house.” After smelling near the front door, the dog alerted to a scent of marijuana. Based on this sniff, the police obtained a search warrant and searched the home, where they discovered a marijuana growing operation.  
The second case, Florida v. Harris, involved the use of a drug sniffing canine during a traffic stop. In Harris, the defendant was lawfully stopped by a police officer for an expired registration. During the stop, the police officer employed a canine that was trained in sniffing illegal drugs, but not pseudoephedrine. The dog alerted the officer that drugs were present, and the police searched the defendant’s vehicle without a warrant. In the vehicle, police discovered a large number of pills and other supplies used to manufacture methamphetamine. The defendant in Harris argued that because the canine was not trained to alert for pseudoephedrine, the sniff could not have amounted to probable cause for the police to search his vehicle without a warrant. 
                  The oral argument in Jardines revealed many of the Court’s concerns, especially those of Justice Scalia and Justice Kennedy. 
Justice Scalia, a constant advocate of privacy within and around the home, asked many questions about the curtilage of the home and whether it deserves Fourth Amendment protection. Justice Kennedy was transfixed on the government’s argument that a person cannot have a reasonable expectation of privacy in contraband, because of its inherent nature as an unlawful material. Justice Kennedy stated that the fact that something is unlawful does not automatically deprive it of constitutional protections, an argument in direct conflict with the government’s position and much of the Court’s earlier precedent.   
© Christian Escobar Mora/Associated Press
   In the oral argument in Harris, Justices Ginsburg and Sotomayor appeared bothered that dogs trained to identify illegal substances are not subject to uniform training, and that ceritification standards differ throughout the United States. 
Justice Scalia, although critical of the canine search that took place in Jardines, did not seem as opposed to the use of the canine during a traffic stop. 
Justice Sotomayor was critical of the government’s assertion that a dog sniff, by itself, can establish probable cause.
                  The Court will either have to affirm its previous holdings that a dog sniff does not constitute a search and is thus not protected by the Fourth Amendment, or carve out an exception to their canine holdings. It may also overrule these previous decisions and hold that canine searches are indeed a search.  
It is possible that Justice Scalia will distinguish the cases on the basis that Jardines involved the home, whereas Harris involved a vehicle stop andsearch, which historically has received less privacy protection.  
Regardless, the high Court must determine whether the Fourth Amendment offers protection against warrantless canine searches, or whether, on a whim, police may use dogs to sniff any person at any time.