Do Police Need Search Warrants for Drug-Sniffing Dogs?

Drug-sniffing dogs are regulars in law enforcement, but where the dogs can sniff will be decided by the U.S. Supreme Court.

In question in the cases brought before the high court Wednesday (October 31) is whether a police dog is a search tool requiring a warrant. Twenty-eight states and the federal government argue that police should not need a warrant when using dogs to sniff for drugs outside a home or vehicle. The justices, however, did not seem to agree.

Last year, the Florida Supreme Court ruled in two separate cases that using dogs to identify drugs in a private home or vehicle without a warrant violated the Fourth Amendment. But Florida law enforcement officers, supported by amicus briefs from 27 other states and the federal government, were appealing those cases.

“If the Florida Supreme Court’s decision is upheld,” wrote Texas Attorney General Greg Abbott in an amicus brief in Florida v. Jardines, “it could have a profound chilling effect on law enforcement efforts to combat illegal drugs. The Court should instead reverse (the Florida Supreme Court’s decision) to ensure that detection dogs retain their proper place at the forefront of state and federal efforts against the production and distribution of illegal drugs.”

In this case, Florida v. Jardines, police were tipped off that marijuana was being grown in a Miami house. They brought a drug-sniffing Labrador, Franky, onto the porch of the house to sniff for marijuana without a warrant. After Franky identified the marijuana smell at the house, the officers got a warrant and arrested Joelis Jardines for illegally growing the drug. Jardines sued the police, charging they violated his right to privacy by illegally searching his home. The Florida Supreme Court agreed that the dog’s inspection without a warrant was an illegal search.

In the second case, Florida v. Harris, a K-9 police officer in rural northwest Florida stopped a truck with an expired license plate, and the officer thought the driver, Clayton Harris, was on drugs. When Harris refused the officer’s request to search the truck, the officer used his drug-sniffing dog, a German Shepherd named Aldo, to inspect the outside of the truck for drugs. Aldo detected chemicals used to make methamphetamines, and Harris was charged with narcotics possession. The Florida Supreme Court also ruled that Aldo’s sniff of the outside of the truck was an illegal search.

In Wednesday’s court session, even Justice Antonin Scalia, a usual defender of law enforcement tactics, did not seem to accept Florida’s argument in Jardine that coming to the door with a drug-sniffing dog was accepted police practice. Scalia compared it to standing on the porch using binoculars to peer into a house.

“When the purpose of the officer's going there is to conduct a search,” Scalia said, “it's not permitted (to come to the door and use binoculars).”

Justice Ruth Bader Ginsburg went further. There is, Ginsburg said, “not implied consent for the policeman to come up with the dog. The only purpose of the dog is to detect contraband. So you can say, yes, there's an implied invitation to the Girl Scout cookie seller, to the postman, even to the police officer, but not police officer with dog, when the only reason for having the dog is to find out if there's contraband in the house.”

A change in how police may use drug-sniffing dogs could significantly affect state police operations. In Texas, according to Attorney General Abbott’s brief, “the Department of Public Safety deploys more than 20 dog-handler teams across the state, and these teams routinely perform more than 1,000 sniff tests annually. Arizona’s Department of Public Safety likewise deploys more than 25 canine teams. And in 2010, the Virginia State Police Department’s 18 narcotic teams led to 118 arrests and 127 drug seizures.”

The Court will issue a decision sometime in 2013.

Reprinted courtesy of Stateline, a nonpartisan, nonprofit news service of the Pew Center on the States that provides daily reporting and analysis on trends in state policy.