Supreme Court: Cops Need A Warrant To Use Drug Dogs Outside A Home

The Supreme Court ruled 5-4 on Tuesday that using a drug-sniffing dog right outside a home to alert police to marijuana growing inside is unconstitutional. It's a violation of the homeowner's Fourth Amendment protection against a search without probable cause.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.

Today, the country turns its attention to the Supreme Court where arguments began at a pair of same-sex marriage cases. But that's not all the court did this morning. Just before they got to the day's big arguments, the justices issued an important decision in an unrelated case. This one was about searches and the right to privacy.

NPR's Ari Shapiro has the story.

ARI SHAPIRO, BYLINE: The key player in this case is a four-legged investigator named Franky. Franky's a dog with a nose thousands of times more powerful than his human companions. So when Franky and his handler walked up to a house in Florida on a tip, Franky could tell what his handler could not. There were drugs inside. One search warrant later, the police uncovered 25 pounds of marijuana, and arrested Joelis Jardinas.

Today, the justices said Franky's visit to the front porch was a search, violating the fourth amendment right to privacy.

HOWARD BLUMBERG: It's very important for privacy issues because we're dealing with people in the place where they live and that's where they have the highest degree of privacy interests.

SHAPIRO: Howard Blumberg is the public defender who represented Jardinas. Courts have long said that an officer can walk up to a house, knock on the door and question the person who answers. If the cop sniffs pot, no problem. But this ruling says a dog is different.

BLUMBERG: They cannot come up to the front door of a house and conduct a search. And when they come up to the front door of a house with a narcotics-detection dog, there's no question that that is what they're doing.

SHAPIRO: Writing for the majority, Justice Antonin Scalia acknowledged that police can walk onto a person's front porch, quote, "But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else." Scalia was joined by an unusual alignment of justices, Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The Florida Attorney General's office prosecuted Jardinas. They declined an interview request, but released a statement expressing disappointment in the decision. Former prosecutors say this is a setback.

PAUL MCNULTY: I think this case makes it a little more difficult for police to do their job.

SHAPIRO: Paul McNulty was deputy attorney general under President Bush and he's now in private practice.

MCNULTY: The idea that outside the house on the front porch or on a driveway that these would be areas that would carry an expectation of privacy raises some really difficult questions.

SHAPIRO: The four dissenting justices made that point. Samuel Alito wrote the minority opinion, joined by Anthony Kennedy, Stephen Breyer and Chief Justice John Roberts. Alito said when officers walk up to the front door of a house, they are permitted to see, hear, and smell whatever can be detected from a lawful vantage point. Alito points out that the visits took only a minute or two and he writes that Franky is hardly a new technology. Quote, "Dogs have been domesticated for about 12,000 years."

Yet there are new technologies that make this a much more sensitive subject. Ryan Calo studies privacy and technology at the University of Washington School of Law.

RYAN CALO: There are very sophisticated chemical sensors or other sorts of sensor technology that permit you to do what the dog-sniffing cases pretty much allow, which is only detect contraband.

SHAPIRO: In 2001, the justices held that a heat sensor aimed at a house is an unconstitutional search, but part of their reasoning was that the heat sensor can detect much more than marijuana grow lights. So imagine a mechanical dog with a nose so powerful that it can sniff drugs and only drugs from across the street. Calo says unless the sniffer is physically on your property, this ruling does not offer clear guidance.

CALO: This case does not reach a circumstance where, say, a drone with a chemical sensor flies over a house or even, frankly, where a dog simply walks down a hallway in an apartment building. The holding of this case is pretty narrow.

SHAPIRO: Justice Elena Kagan would have gone bigger. In a concurring opinion, she said police should not be able to use a sense-enhancing device to examine a home without a warrant, regardless of whether that device is on the property or not. Justices Ginsburg and Sotomayor joined that concurrence, but it was not enough to make a majority. Ari Shapiro, NPR News, Washington.

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