The Supremes' Good And Also Awful Decision On Drug-Sniffing Dogs
Great! The U.S. Supreme Court upheld the ruling by the Florida Supreme Court that drug-sniffing dogs violate the Fourth Amendment ban on unreasonable searches. Not-so-good -- awful, in fact -- as Steve Chapman writes at reason:
But for some reason Scalia, who wrote the court's latest opinion as well, shied away from extending his impeccable logic. Instead, he said the dog-sniffing was out of line because it involved trespassing on private property. Once the officers ventured into the area owned by Jardines without his permission, the Fourth Amendment limited what they could do.The trespass rationale worries Christopher Slobogin, who directs the Criminal Justice Program at Vanderbilt Law School. "If the next case involves a drug-sniffing dog smelling an apartment that abuts a public sidewalk, presumably Scalia would say there is no search because there is no trespass," he says. "But the privacy invasion of the home would still be just as significant." Plenty of urban residences are within a few feet of a sidewalk, making them vulnerable to an accusatory Labrador retriever.
Justice Elena Kagan agreed, in a concurring opinion. In her view, cops violate privacy rights "when they use trained canine assistants to reveal within the confines of the home what they could not otherwise have found there"--even if they do it from a public way.
Why does it matter? Because dogs are the least of the ways in which the government will eventually be able to monitor spaces that once afforded sanctuary to anyone who wants to be left the hell alone.
It is not the role of the Supreme Court, or an individual justice to extend their logic (impeccable or otherwise) to the next hypothetical case or controversy.
Their job is to decided the case before them, on the narrowest grounds possible.
Usually they start with jurisdiction. If there is none, they don't even get to the merits of the arguments.
If there was trespass, meaning that the police needed a warrant to get onto the property (and didn't have one)then it ends there. What the drug dog turned up was fruit of the poisonous tree.
Justice Scalia decided the case before him, not some hypothetical future case, that the author of this article thought he should be taking on, which I believe was perfectly appropriate.
Why does this whole article come off as a politically motivated attack on Scalia for doing the right thing?
I think the author was just looking for something to whine about.
Isab at March 28, 2013 9:28 PM
Seems like the SCOTUS did the right thing. Even if the cops merely walked up to the door to ask for permission to search, they brought the dog with them.
Look at it this way: if they were looking for stolen gold coins and brought a metal detector with them, and the thing was turned on, wouldn't that be a search? Even if they weren't actually conducting the wide sweeps and doing a thorough search, leaving the metal detector turned on is their coy attempt to turn up something that would justify a warrant.
Since a drug-sniffing hound can't reasonably be "turned off," they keep the mutt in the car while they ask.
Patrick at March 29, 2013 3:00 AM
The thing to watch out for here is that nebulous, "probable cause". The DOG can be cued to "alert", and a lie-detector test can be manipulated, too.
Do not believe what you see on TV.
Radwaste at March 29, 2013 8:04 AM
"Look at it this way: if they were looking for stolen gold coins and brought a metal detector with them, and the thing was turned on, wouldn't that be a search?"
That does seem to be the way the SCOTUS is leaning: if it involves using an instrument or detector of some kind that exceeds the capability of the unaided human senses, it's a search. That seems like a reasonable standard. If you're walking down the street openly smoking a joint, and I can see and smell it, then if I'm a cop I have obtained probable cause without performing a search. On the other hand, if you have a joint in your pocket and I discovered it by taking your photo with an infrared camera, I performed a search, and I'd better have had a warrant first.
Cousin Dave at March 29, 2013 9:23 AM
"The thing to watch out for here is that nebulous, "probable cause". The DOG can be cued to "alert..."
The SCOTUS just precluded that, in the case of a home search, at least from the way I read it. Even if they cue the dog to alert as a pretense for obtaining probable cause to search, the dog being there was itself a search, which means that unless they already had a warrant, the probable cause was obtained illegally.
Cousin Dave at March 29, 2013 9:29 AM
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