Sunday, November 4, 2012

The Nose Knows--But is it Probable Cause?

The U.S. Supreme Court is currently hearing arguments over two cases in Florida in which police justified their search because a narcotics dog gave an alert.

Case #1*: Joelis Jardines was running a profitable little business growing pot inside his house. But someone tipped off the cops. They took their dog, Franky, for a walk around Jardines's front porch. He alerted, the cops rushed in, find 25 pounds of ganja, and hauled Jardines off to jail.
Jardines's lawyer objected, saying that his client had a reasonable expectation of privacy in his own home, which the cops violated by bringing Franky onto his property without permission. The Florida Supreme Court agreed.

Case #2*: The cops pulled Clayton Harris over for driving his truck with expired tags. He acted nervous and refused to let the cops search the truck, so they called in Aldo, a German Shepherd, to do a "free air" sniff around the truck. He alerted. The cops declared that they now had probable cause to justify a search and found the ingredients for making methamphetamine. Two months later, the same thing happened again, but this time they didn't find any drugs.
Where's Aldo? This Might Just Be a Look-Alike
Harris's lawyer claimed that Aldo's nose was not sufficiently reliable to justify the searches, and the Florida Supreme Court agreed.

Dogs have been sniffing for narcotics since the 1960's, when the Israelis started using them to sniff out the narcotics that financed guns and bombs for terrorists. France followed suit in 1965, and the United States in 1970.

The Supreme Court has upheld the right of law enforcement to use narcotics dogs at airports and checkpoints, and up until recently in other cases where their use has been challenged.

Early indications are that this time it might be different.

The cases hinge on two different questions:
     What are the limits on a homeowner's right to privacy and on the cops' right to snoop?
     What criteria must police use to decide whether the dog's alert is reliable?

Some of the questions the Justices are asking include:
     Is using a dog the same as using a thermal imager to look inside the house (which was ruled unconstitutional in 2001)?
    Does it matter that Jardines had put mothballs around his house to mask the odor of marijuana?
     Is there a "magic number" of correct alerts needed to prove that a dog is reliable?
     Might the handler's expectation of finding contraband influence the dog's likelihood of giving an alert?
     Would police prefer a dog who gave more alerts, thus justifying more searches?

The Court is expected to hand down a ruling by the end of June next year.

*The cases are Florida v. Jardines, U.S. Supreme Court, No. 11-564; and Florida v. Harris, U.S. Supreme Court, No. 11-817.