Future of drug detection dogs is questionable

Is an "alert" from a drug sniffing dog enough to justify a search of a home or car? That question is under review by the U.S. Supreme Court. The court has long held that the sniff of a drug detection canine is not a search under the Fourth Amendment, which protects against "unreasonable searches and seizures." However, two Florida cases before the nation's High Court could change the parameters of the law and either limit or expand the privacy rights of everyone in the United States.

Florida v. Harris

The first case, Florida v. Harris, goes directly for the jugular of drug detection dogs by challenging their reliability in sniffing out drugs. In that case, the defendant Clayton Harris, was stopped by a Liberty County Sheriff's deputy canine officer for driving on a suspended license. The deputy ran the dog around Harris' car and it alerted on the driver's door.

With probable cause accompanied by the automobile exception to the warrant requirement, the deputy searched the interior of Harris' vehicle. The deputy claims he found supplies for manufacturing methamphetamine and said Harris admitted to using them for such. Harris pleaded "no contest" and was convicted of possession of pseudoephedrine with the intent to manufacture methamphetamine.

Harris appealed and the Florida Supreme Court held that a dog's training and certification to detect drugs is not enough, by itself, to establish the dog's reliability in detecting drugs to establish probable cause. Officials for the State of Florida argued that the Florida Supreme Court misinterpreted the U.S. Supreme Court's rulings that a dog sniff is not a search under the Fourth Amendment. State officials complained that the Florida Supreme Court's ruling eliminated "the narcotics detection dog as an important crime fighting tool for law enforcement and society."

Florida v. Jardines

In a companion case, also from Florida, the U.S. Supreme Court will decide whether the Florida Supreme Court correctly ruled that a dog sniff conducted at the front door of a suspect's "grow house" constitutes a search for Fourth Amendment purposes and violates its protections.

In Florida v. Jardines, the Miami-Dade Police Department got a tip that the defendant, Joelis Jardines, was growing marijuana inside his home. A task force of officers, including agents from the federal Drug Enforcement Agency, surveyed the home one month later. A drug detection canine sniffed the defendant's front door and after sniffing, alerted to the presence of drugs. An officer knocked on the door trying to get consent to search the home, but he received no answer. However, he did smell marijuana and heard the sound of a constantly running air conditioner.

Armed with this information, officers obtained a search warrant and seized several live marijuana plants, as well as the defendant who ran out the back door. Jardines was charged with trafficking more than 25 pounds of cannabis, a first-degree felony, and grand theft for stealing over $5,000 in electricity for the lights used to grow the marijuana.

The Florida Supreme Court said the dog sniff in this case "was an intrusive procedure," reasoning that "if government agents can conduct a dog 'sniff test' at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen."

The court held that a 'sniff test,' like the one in the Jardines case, is "a substantial government intrusion into the sanctity of the home and constitutes a 'search' within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing."

The United States Supreme Court granted review in both cases and recently heard oral arguments. The cases also generated lots of briefs from non-parties taking positions for or against the use of drug dogs. A group of law professors argue that "alerts" by dogs aren't reliably accurate because it is not the drugs themselves, but certain molecules they are detecting - and those molecules are shared by many innocent substances.

Cocaine, for instance, shares components of snapdragons and petunias, and heroin has components of vinegar and aspirin. This may account for some studies that show a drug dog's so-called "alert" results in no drugs being found more than 50 percent of the time in traffic stops. One study even put the accuracy of drug sniffing dogs to only 12 percent, and that's hardly enough to conclude that drugs are "probably" contained in a particular house or car.

It is unclear which direction the U.S. Supreme Court will go in its decision on dog sniffs based on these two cases. It is likely that government will have a harder time convincing the Court to allow drug dog sniffs of people's front door. A person's home has always been given greater protection under the Fourth Amendment than motor vehicles.

Whichever side of the issue the Court falls, an experienced criminal defense attorney can help protect your rights if you face drug charges.