The Supremes are about to hear several aspects on this, and just how qualified a dog must be do a “legitimate” sniff. We can’t help but think that if we applied this to the illegal seizures we have seen, apparently the attorney that sets up the seizure need not be qualified at ALL, because any damn fool can submit bogus paperwork.
Click here (to Findlaw blog on Supremes hearing case)
Essentially, Florida law in the case, when applied to the defendant, found that the government’s check off list of required items concerning the canine sniff dog, was missing something, and therefore, there was inadequate probable cause as to the 4th amendment seizure using the dog. The Supremes found that the Florida law check off as to the sniffer dog was not proper in that if an element [such as field trial results] for the dog was missing, then the dog’s record was incomplete, and thus could not be used as the complete ‘reliability’ of the dog. This meant that a dog’s sniffing, without the exact record specs would not be sufficient to meet the probable cause required. Excerpt:
” To assess the
reliability of a drug-detection dog, the court created a
strict evidentiary checklist, whose every item the State
must tick off. Most prominently, an alert cannot establish probable cause under the Florida court’s decision
unless the State introduces comprehensive documentation
of the dog’s prior “hits” and “misses” in the field. (One
wonders how the court would apply its test to a rookie
dog.) No matter how much other proof the State offers of
the dog’s reliability, the absent field performance records
will preclude a finding of probable cause…”
Puppies, Privacy, and Probable Cause: SCOTUS Goes to the Dogs
Franky and Aldo are the fuzzy-eared pawns in a legal showdown over dog-sniff searches. Franky is a chocolate Lab. Aldo is a German shepherd.
Wednesday, the two canine officers will dominate oral arguments in Florida v. Jardines and Florida v. Harris, two cases examining the relationship between dog sniff searches and the Fourth Amendment.
The cases involve distinctly different issues, Reuters reports: whether a dog can sniff outside a home without a warrant, and how qualified a dog must be to do a legitimate sniff.
In Jardines, police officers brought Franky to Joelis Jardines’ home in response to a crime stoppers tip that there was marijuana was growing inside. Franky sniffed the house and alerted his handlers, which was sufficient evidence for the cops to obtain a search warrant. Jardines’ was later arrested for possessing more than 25 pounds of marijuana.
The Florida Supreme Court called Franky’s sniff an “unreasonable government intrusion into the sanctity of the home,” likening it to the warrantless infrared thermal imaging that the U.S. Supreme Court rejected in 2001’s Kyllo v. U.S.
In Harris, the cops enlisted Aldo to conduct a “free air sniff” around Clayton Harris’ truck after discovering the Harris had an expired tag and an open container. (The cops had asked for permission to search the vehicle, but Harris refused.) After Aldo alerted, police search Harris’ vehicle and found 200 pseudoephedrine pills and 8,000 matches, (which are ingredients for methamphetamine), according to Reuters.
Once again, Florida’s highest court stepped in, this time tossing Aldo’s search because the state had not demonstrated Aldo’s reliability as a drug detector with evidence of his training, certification and performance, and his handler’s experience.
Law enforcement generally argues that using a drug-sniffing dog is not a “search,” because the dog only alerts to something that is illegal; they claim that no one has a privacy right in illegal activity, SCOTUSblog explains.
Florida Attorney General Pamela Jo Bondi argued in the state’s Jardines brief that law enforcement will be significantly hampered if required to develop probable cause without the assistance of dog, noting that the Florida Supreme Court’s decision requires that the officers have probable cause before employing a dog. It is the dog’s alert, she claims, that often provides the probable cause to obtain the search warrant, Wired reports.
How do you feel about police using dog-sniff searches to establish probable cause for a search? Are you comfortable with dog sniffs taking a bite out of privacy as long as they take a bite out of crime?
- Florida v. Jardines (FindLaw’s CaseLaw)
- Should Courts Apply Padilla Retroactively? (FindLaw’s Supreme Court Blog)
- Fourth Amendment Violation Turns on Who Let the Dogs Out (FindLaw’s Sixth Circuit Blog)