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Supreme Court Devotes Day to Hear Cases on Drug-Sniffing Dogs and Privacy Rights

October 31, 2012 at 12:00 AM EDT
The Supreme Court heard two cases on police use of drug-sniffing dogs for criminal searches. At the heart of the debate is if officers can search a car or house without a warrant if a dog detects alleged drugs. Judy Woodruff talks to The National Law Journal's Marcia Coyle for a breakdown of the Supreme Court's recent session.
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JUDY WOODRUFF: Is an alert from a drug-sniffing dog enough to justify police searching a home or a car? That’s the question the Supreme Court explored today in two cases.

Marcia Coyle of “The National Law Journal” was in the courtroom this morning to hear the arguments. And she’s here with us tonight.

Welcome back.

MARCIA COYLE, “The National Law Journal”: Thanks, Judy.

JUDY WOODRUFF: So, I imagine it’s not that often that the court hears a case about a dog, much less two cases.

MARCIA COYLE: Well, it is a little unusual.

And, in a sense, we have gone from high-tech questions under the Forth Amendment, like the attachment of GPS devices to cars, to very low-tech questions under the Fourth Amendment. These two cases come in two very different factual situations.

The first case that was argued this morning, a police officer was acting on an anonymous tip that marijuana was being grown in a house. He took his narcotics-trained dog up the driveway to the front door of the house. After a time, the dog alerted by sitting at the base of the front door. The police officer left the dog with another officer to go get a search warrant.

The question for the Supreme Court is, should he have had a search warrant with him before he allowed the dog to sniff? Was the dog’s sniff a search under the Fourth Amendment?

The second case doesn’t involve a house. It involves a pickup truck. A police officer stopped the pickup truck for a traffic violation, noticed that the driver was sweaty and very nervous. And when he went to check the driver’s license, he brought out his dog, Aldo, a German shepherd, and had him do a sniff around the truck.

The dog alerted on the handle of the door. And the police officer used that to search the truck. The question for the court is whether the dog sniff itself gave the police probable cause in order to search the truck.

The Florida Supreme Court ruled against law enforcement in both cases, so it was the state of Florida that brought the cases to the Supreme Court today.

JUDY WOODRUFF: So the justices heard these different — heard these separately.

MARCIA COYLE: Yes.

JUDY WOODRUFF: And what kinds of questions were they asking, the first about the case involving the house?

MARCIA COYLE: The house, right. Well, the state of Florida was actually represented by the same lawyer in both cases, former Solicitor General Gregory Garre.

And he told the justices that in prior cases at the Supreme Court, the court had found that dogs — drug-sniffing dogs were rather unique and they could search luggage, open containers because we don’t have a reasonable expectation of privacy in contraband. And he said this was really no different here.

But he ran into trouble across the bench from justices. The home, it appears, is different in the eyes of the court.

Justice Ginsburg, for example, said, under your theory of the case, couldn’t police then take drug-sniffing dogs into neighborhoods that have drug problems and go door by door, having the dog sniff the front door, or into an apartment building and go door by door?

Justice Scalia pointed out that there is a rule that police cannot come within the curtilage of a home — that’s the area immediately surrounding the home — in order to get a better view of what’s inside of the house with their binoculars. And why, he said, is a dog any different?

So there was a lot of skepticism about Florida’s position.

JUDY WOODRUFF: And how did the Florida attorney respond?

MARCIA COYLE: Mr. Garre said, you know, under court precedents, under the law, police officers alone can walk up to front door, knock on the door and talk to the resident in order to uncover evidence of a crime. It’s no different with a dog.

JUDY WOODRUFF: Now, what about in the other case, Marcia? Again, this was the dog — on the handle of the door of the car, the dog smelled something.

MARCIA COYLE: Right. And there the question is, was that probable cause for the search?

And probable cause has to be more than a suspicion. And the courts, when they try to determined whether there was probable cause because a criminal defendant is challenging the search, looks at all the circumstances.

Here, the Florida Supreme Court looked at the reliability of the dog, Aldo, and wanted the government and law enforcement to produce evidence that this dog was reliable. How was it trained? Was the handler trained? Was it certified?

And Mr. Garre for the state of Florida said that these were extraordinary requirements. And he was supported by the Obama administration’s lawyer, who also said what would happen if the court constitutionalized these requirements was that you would start having mini-trials with expert witnesses, and dogs would be put on trial to determine their reliability, and it just wasn’t necessary.

The court seemed to have trouble trying to find what kind of requirements would ensure reliability and therefore probable cause for a search?

And Justice Sotomayor, for example, noted that there have been some recent studies that show these dogs aren’t infallible. There’s one that she noted that had a 12 percent accuracy rate.

And she said she was a little troubled by that. But it wasn’t as clear in the house case that the justices were going to have a problem.

JUDY WOODRUFF: We’re going to focus on the accuracy or the track record for those dogs.

MARCIA COYLE: Right, and it’s just hard to measure how reliable a trained dog is.

JUDY WOODRUFF: And just quickly, Marcia, so there’s a precedent here, but the court is taking a whole other look at these two cases?

MARCIA COYLE: Yes, it is. It’s never really confronted head on a dog-sniff of the front door of the house…

(LAUGHTER)

MARCIA COYLE: …believe it or not, in this day and age.

(LAUGHTER)

JUDY WOODRUFF: All right, an interesting day in the court, Marcia Coyle of “The National Law Journal.”

MARCIA COYLE: Thank you. It was my pleasure.