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Herb Ninja

Justices Decline to Rule on Limits for Drug-Sniffing Dogs

4-5-2005 | LINDA GREENHOUSE | The New York Times

WASHINGTON, April 4 - The Supreme Court in recent years has drawn constitutional rules for the use of newly popular law enforcement techniques. The police need a warrant before aiming a heat-detecting device at a private home in an effort to find out whether marijuana is growing inside under high-intensity lights. The police do not need a warrant before permitting a trained dog to sniff a car, or a piece of luggage at an airport, in order to detect drugs.

Those precedents converged in a case from Texas that posed this question: Can the police bring a trained dog to stand outside a private home and sniff for drugs?

The lower courts have disagreed, and the Supreme Court decided on Monday to let the confusion linger. The justices did not take the case.

The court offered no explanation for declining to hear an appeal from a Houston man, David G. Smith, whose supply of methamphetamine in his garage was detected by a trained dog.

After the dog was walked up Mr. Smith's driveway and signaled the presence of drugs behind the lower corner of the garage door, the Harris County Sheriff's Department obtained a search warrant and found the drugs and other criminal evidence. A state appeals court rejected Mr. Smith's appeal, upholding his conviction and his sentence to 37 years in prison.

The Texas Court of Appeals issued its ruling in February 2004. That was nearly a year before the Supreme Court, in a ruling in January, upheld the use of a trained dog to sniff a car that had been stopped for a non-drug-related traffic violation. But the Texas court did cite a 1983 Supreme Court decision, the first to address the use of drug-detecting dogs, that upheld the sniffing of luggage at an airport.

The constitutional question in all such cases is whether the canine sniff is, under the circumstances, a search within the meaning of the Fourth Amendment; if so, it requires probable cause or a warrant. The court has never categorically held that a sniff is not a search, and although the justices on Monday made no law, the case itself offered a window into the growing use of trained dogs and some of the legal issues the practice raises.

In its 1983 airport decision, United States v. Place, the court suggested that the sniff was not a search in that setting because it "discloses only the presence or absence of narcotics" without requiring that the suitcase be opened. In the decision two months ago, Illinois v. Caballes, the court said that a dog's sniff of an automobile that had been lawfully stopped for speeding did not "implicate legitimate privacy interests."

In the appeal the court turned down on Monday, Smith v. Texas, No. 04-874, Mr. Smith argued that the most important precedent for understanding his case was one that did not involve dogs at all, but rather a thermal imaging device that the police use to detect distinctive patterns of heat produced by the indoor cultivation of marijuana.

In a 2001 decision, Kyllo v. United States, the court held that the use of this device, when trained on a private home, was a search that required a warrant. In his majority opinion, Justice Antonin Scalia said that the heat patterns could also reveal other kinds of personal behavior behind a home's walls. Justice Scalia noted that the home was what the framers of the Fourth Amendment had in mind when they barred "unreasonable searches."

In the appeal on Monday, Mr. Smith's lawyers told the court: "No distinction exists between a thermal-imaging device and drug-sniffing dog in that they are both sense-enhancing and permit information regarding the interior of a home be gathered which could not otherwise be obtained without physical intrusion into a constitutionally protected area."

In urging the justices to reject the appeal, the Harris County district attorney, Charles A. Rosenthal Jr., argued that the thermal imaging case was off the point. "The use of a drug detection dog does not constitute the use of any technology, let alone advanced technology," he said.

The district attorney's brief cited a variety of lower-court precedents that had upheld canine sniffs as not amounting to searches: in the common corridor of a hotel, outside an Amtrak sleeper compartment, outside an apartment door, at the exterior of a home. These activities were found not to "implicate Fourth Amendment concerns," he said, because "society clearly is not willing to recognize as reasonable or legitimate an expectation of privacy in the possession of narcotics."

One decision from the federal appeals court in New York that reached the opposite conclusion in 1985 should be ignored as a precedent, he said, because that decision "is 20 years old, yet it stands alone" and has not been adopted by other courts.

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vladimir

personal opinion, no legal background: getting information on what is going on inside someones personal property, besides talking to neighbors or friends, is a search.
and if they took the dog up his driveway without a warrant, thats trespassing as far as im concernced. if i was him and had a gun, i would have shot them immediately.

edit: im completely anti-gun. i just hate the idea of cops being able to check out what im doing without anyone knowing it.

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If a drug (or technique or process) were ever to be discovered which would consistently produce a plus four experience in all human beings, it is conceivable that it would signal the ultimate evolution, and perhaps the end of, the human experiment.

frolic

While living on the street in Bakersfield I used to frequent (hang) in international park where Santa Fe railroad passed through the city. International park is where the Homeless and people traveling by rail gather right on Baker Street. One evening after work I was hanging in the park with some old friends. A little dog was loose in the park, a cute little dog that looked like Benji. The dog came up to me wagging its tail and I petted the dog which moved along and went to another casual laborer. After a little petting the dog moved on and I lost track of where it went.

All of a sudden, (aren't you excited) six BPD cars pull up switching on lights as doors fly open and expel riot officers. A SWAT team disgourges on SF property and 4 officers who have crawled up behind a low wall leap to thier feet unholster their guns.

Everyone in the park, all the farm workers, bums, hobos and good citizens of city freeze in the field of drawn weapons. As everyone relaxes and takes a seat to seem less dangerous to an excited PD two officers move through the people asking several to empty pockets. Being counter to such draconian tactics, and possessing a nickel bag (marijuana in a measure that will satisfy and not stupify - how I desire stupifaction)), the two officers come to serve and protect me. When I inquire as to their "Probable Cause" to search me they direct my attention to the street where a very attractive woman holds a leash to little "Benji (not his real name)" who is now wearing a badge on a collar. I remove the nickel bag and hand it to the officer throwing my hands into the air confessing my mortal sins and placing my life in the clean though well caloused beneficial hands of my accuser, who with a thumb and forefinger grinds the little nickel bud into dust which drifts toward the mission on a puff of wind (phew). Is that beef stew I wonder. "Get out of my way", the officer growls directing me toward the sidelines where a number of fans have gathered to watch the game. I slip away and enter the mission for a meal.

In the news paper at breakfast the next morning (I didn't see any reporters) a detailed account (with a picture of me) is presented. The account was detailed but not accurate. I was not cited. Only one man was arrested and that for assualting an officer (he was drinking a beer and fell against a server and protector). This use of a trained search dog was never challenged in court, nor were any of such searches for crack houses.

Ob-La-Di, Ob-La-Da, life goes on.

Buzzby

On that basis, if a cop saw someone being strangled through a window as he walked by he would have no legal recourse to stop the crime. All evidence would be excluded and no valid warrant could be issued.


But not as far as the law is concerned. Ordinary citizens on your property are not trespassing unless you have your property posted. Police officers have considerably more latitude than ordinary citizens when investigating the possibility of criminal activity, i.e. even if the property was posted the cops wouldn't be trespassing.


Are you related to that Canadian wacko who murdered four Mounties a couple of weeks ago? (Gee, maybe marijuana does cause violent ideation in some people.) In every state but Colorado, the only justification for using deadly force is to protect your life or the lives of other innocents. If you've got a grow op or illicit drugs in your house and you kill people to protect it, I don't think any jury in the world would find you innocent.

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