Does a drug dog get a free air sniff? As crude as it sounds, this in large part really depends on where the dog is sniffing. In the last several months, we have had three very important cases – two from the United States Supreme Court and one from the 8th Circuit – involving drug-sniffing dogs that answer this question.
Before launching into these cases lets take a quick look at how and why drug-sniffing dogs figure so prominently in these cases. Of course, it is all about scent and the other traits of particular dogs. Nova says that a dogs smell is “tens of thousands of times as sensitive to odors as yours” “Dogs’ sense of smell overpowers our own by orders of magnitude—it’s 10,000 to 100,000 times as acute.” A dog can detect one part per trillion. Its nose is has a special component that separates the air from the respiratory area into the olfactory area. Certain breeds of dogs are better suited for detecting drugs than other dogs. It is also useful to note that a dog and its handler develop a unique relationship and that your dog becomes part of you with microbial connections to your skin and gut.
In the first Supreme Court case, Florida v. Harris, Aldo, a German Shepherd was trained to detect certain narcotics (methamphetamine, marijuana, cocaine, heroin, and ecstasy). Aldo was with his handler Wheetley, a K–9 officer (Officer) in the Liberty County, Florida Sheriff’s Office who was on routine patrol when he noticed a truck with expired license plates. The Officer pulled over the truck driven by Harris observing as he approached the truck that Harris was “visibly nervous,” unable to sit still, shaking and breathing rapidly. He also noticed an open can of beer in the truck’s cup holder and asked Harris for consent to search the truck, but Harris refused. At that point, the Officer retrieved Aldo from the patrol car and walked him around Harris’s truck for what Justice Kagan, called a “free air sniff.”
Aldo, a German Shepherd alerted at the driver’s-side door handle by signaling through a distinctive set of behaviors that he smelled drugs. The Officer concluded based principally on Aldo’s alert, that he had probable cause to search the truck but his search did not turn up any of the drugs, Aldo was trained to detect. However the search did reveal 200 loose pseudoephedrine pills, 8,000 matches, and a bottle of hydrochloric acid, two containers of antifreeze, and a coffee filter full of iodine crystals, all ingredients for making methamphetamine. The Officer arrested Harris who was charged with possessing pseudoephedrine for use in manufacturing methamphetamine.
A motion to suppress the evidence was filed and was overruled by the trial court leading to the conviction of Harris. The Florida Supreme Court held that the motion to suppress should have been sustained and the case was appealed to the United States Supreme Court, which held that the rules for finding probable cause is not reducible to “precise definition or quantification,” “All we have required is the kind of ‘fair probability’ on which “reasonable and prudent [people,] not legal technicians, act.” In evaluating whether or not this standard has been met we apply, “… practical and common-sensical standard” and “… we have consistently looked to the totality of the circumstances” to determine whether or not an officer had probable cause to search the vehicle based on the drug dog alert. It would seem that the phrase “free air sniff” used by Supreme Court Justice Kagan, will surely be a phrase that will live on forever.
In the second Supreme Court case Florida v. Jardines, a police officer received an unverified tip that marijuana was being grown in the home of the Defendant. The police sent a joint surveillance team to the Defendant’s home. The Police walked to the front porch of the house accompanied by a trained canine handler and his dog who was trained to detect the scent of marijuana, cocaine, heroin, and several other drugs. The dog would indicate the presence of these substances through particular behavioral changes recognizable by his handler. As the dog approached the front porch he apparently sensed one of the odors he had been trained to detect, and began energetically exploring the area for the strongest point source of that odor. The dog sat down at the front door indicating that this was the strongest point. On the basis of what was learned at the home, a warrant was issued to search the residence. A search revealed marijuana plants resulting in the Defendant being charged with trafficking in cannabis.
At trial, Defendant moved to suppress the evidence on the grounds that the canine investigation was an unreasonable search. The trial court granted the motion and the Florida Supreme Court affirmed the trial court’s decision, which was appealed to the United States Supreme Court. Justice Scalia, writing for majority upheld the decision of the Florida Supreme Court based on a property rights analysis. When “…it comes to the Fourth Amendment, the home is first among equals.” At its “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” The area immediately surrounding and associated with the home is the curtilage, which is “part of the home itself for Fourth Amendment purposes.”
In the third case, Burlison v. Springfield Public Schools two deputies from the Greene County sheriff’s department arrived at the school with drug dogs to conduct a brief survey of randomly selected areas in the building. The survey was conducted in accordance with school police services standard operating procedure. All backpacks, purses, and other personal items were to be left behind. When the room was cleared of students, a deputy sheriff took the drug dog into C.M.’s classroom. Video footage shows that the deputy sheriff and drug dog left the classroom after approximately five minutes. During that time the drug dog did not alert to anything. Mellony and Douglas Burlison later filed an action on behalf of their son C.M. under 42 U.S.C. § 1983 and the Missouri Constitution, alleging that Springfield Public Schools and officials violated C.M.’s constitutional rights by briefly separating him from his backpack during a drug dog exercise in his high school classroom. The district court granted summary judgment to the district, its officials, and the sheriff after concluding that the policies used during the drug dog visit appeared to be reasonable and not deprive C. M. of a federal right. Burleson appealed to the 8th Circuit, which affirmed the decision of the trial court. The 8th Circuit noted the strong government interest in preventing drug use by students. Drug problems in schools are “serious in terms of size, the kinds of drugs being used, and the consequences of that use both for our children and the rest of us.” That is because “drug use carries a variety of health risks for children, including death from overdose.” The U. S. Supreme Court has also rejected the idea that all searches or seizures in a school must be supported by individualized suspicion and the 8th Circuit in other cases declined to require a school to find individualized suspicion before drug testing students participating in extracurricular activities because the school was “attempting to prevent and detect drug use by students.”
In Florida v. Harris involving a drug-sniffing dog was alongside a car stopped on a road and in Burlison v. Springfield Public Schools the “free air sniff” took place on public property. In Florida v. Jardines, there was no “free air sniff” because it took place on private property under circumstances strongly suggesting that marching the dog to the front dog was a guise to get evidence for a search warrant. After all, the Justices in Florida v. Jardines were seemingly in agreement that if a postman had walked up to the door to deliver mail and smelled the scent of marijuana that the police could have used the “sniff” of the postman as a legal basis for getting a search warrant. Really, what is the difference? So far as I can tell, what made the search illegal was the intent of the police officers to “spy” based on a suspicion that marijuana was growing in the house and using the dog as a guise to get a search warrant.
What is fascinating about the second case, Florida v. Jardines, is the split between the Justices’ over the legal basis to uphold the motion to suppress evidence obtained from the residence based on the dog alerting at the front door. Florida v. Jardines was a 5 to 4 decision with only Justices’ Scalia and Thomas fully supporting the majority opinion based on the trespass/property theory indicating that there was very little support for the legal reasoning of Justice Scalia. There was a concurring opinion written by Justice Kagan, joined by Justices’ Ginsburg, and Sotomayor that would have decided the case based on a violation of the right of privacy, although all three Justices in the concurring opinion agreed that the Fourth Amendment had been violated by the search, resulting in a five to four decision to uphold the motion to suppress. Four Justices dissented and would have upheld the search based on the analogy that the dog sniff was no different from a mailman or a person delivering pamphlets who smelled the odor of marijuana, which would be sufficient to obtain a search warrant.
You can expect much more sparring between “originalists” (members of the court who look for answers based on the law at the time our constitution was adopted) and other members of the court who recognize that new technology or development and deployment of drug sniffing dogs requires a broader analysis based on the right of privacy. For an earlier Post discussing the right of privacy, see “Search and Seizure in the World Without Walls” posted on February 7, 2012.
This story has not ended. Stayed tuned for one of the great ongoing modern-day debates over the right of privacy.
Howard Wright @ 2013
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