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The Supreme Court was the only branch of the federal government that did not shut down here in Washington on Monday as Hurricane Sandy approached. It's at work again today, considering whether police can take a trained drug-detection dog up to a house to smell for drugs inside, and if the dog alerts, use that to justify a search of the home. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The four-legged cop was named Franky, and as a result of his nose, his human police partner charged Joelis Jardines with trafficking in more than 25 pounds of marijuana. In the fall of 2006, police got an anonymous tip that there was illegal drug activity at the Jardines home. A month later, they took Franky to the house, walked him up to the front porch. And when the dog alerted for drugs by sitting down, they got a warrant, found marijuana growing inside and arrested Jardines.
The Florida State Supreme Court ruled the dog sniff was an illegal search that couldn't be used to justify a search warrant. Now the state has appealed to the U.S. Supreme Court, and the case poses tricky issues for law enforcement and for privacy advocates.
First, the legal history. The Supreme Court has, in the past, ruled that dog sniffs do not constitute an illegal search. But those decisions involved cars stopped for other reasons and luggage in public places, not homes. Jardines lawyer, Howard Blumberg.
HOWARD BLUMBERG: The entire history of the Fourth Amendment, really, is based on the fact that the home is different. It goes all the way back to the early 1600s and the famous saying that a man's home is his castle.
TOTENBERG: Indeed, in 2001, the Supreme Court, in a decision written by the conservative Justice Antonin Scalia, ruled that police could not use heat-detection devices outside the home to detect marijuana grow lights inside the home. Said Scalia, not only does the device violate the home dweller's expectation of privacy by using a device to learn what's inside, but the technology could detect many other innocent details of the homeowner's life, like the hour at which the lady of the house takes her bath.
Florida, however, contends that using drug-detection dogs is not the same thing, since there is no right to possess illegal drugs. Lawyer Gregory Garre.
GREGORY GARRE: And what's different and fundamentally distinct about dog sniffs is they only detect unlawful activity, specifically the contraband that the dog has been trained to detect.
TOTENBERG: The state also contends that the police were doing nothing more than the postman or the trick-or-treater.
GARRE: There's no question that the officer and the dog were lawfully there. They did the same thing that millions of Americans will do on Halloween, which is to walk up the front steps and knock on the door. While they were there, they took in the air, and the dog alerted to the smell of illegal narcotics.
TOTENBERG: But public defender Blumberg sees that reasoning as pushing the envelope beyond the Constitution's ban on unwarranted searches. If a dog sniff at the front door is not deemed to be an illegal search, he argues, the real-life consequences could be profound.
BLUMBERG: Then the police are free to walk up and down suburban neighborhoods, go up to the door of every house with a dog and see if the dog alerts the contraband. The police are free to walk through housing projects in the inner city and go door to door based on nothing, or based on an anonymous tip, or just because that's what they want to do that day.
TOTENBERG: The state replies that it doesn't have the resources to do that. Greg Garre.
GARRE: They have far too many things to do to waste their time with that sort of indiscriminate searching.
TOTENBERG: The dog sniff case leads inevitably back to the question of how much technology the government can use to determine what's going on inside the home. If a warrantless dog sniff is permissible, why not develop some new and cheaper technology that detects the smell of drugs from outside the home, a detection device that could easily be used, going home to home or apartment to apartment?
The state's Greg Garre replies this way.
GARRE: Well, I think the fundamental difference is we recognize that there are limits to one's God-given senses, whereas with technology, there's always the possibility, as we've seen, of advances that would be tantamount to X-raying houses.
TOTENBERG: Last year, the Supreme Court balked at technology like that, barring the use of a GPS tracking device without a warrant to keep tabs on a criminal suspect. The question here, at rock bottom, is whether walking a drug-detection dog up to a house is more acceptable, involving, as it does, man's best friend. Nina Totenberg, NPR News, Washington.