Is Sniffing A Search? Canine Search Case To Supreme Court
Wendy McElroy posts at Future of Freedom foundation on Florida v. Jardines and Florida v. Harris, scheduled to be heard by the United States Supreme Court on Wednesday, October 31:

The cases pivot on whether the use of police dogs to detect illegal drugs violates the Fourth Amendment privacy rights of the person being sniffed.

K-9 units are commonplace across America. (K-9 is shorthand for "canine.") Police dogs are used to pursue suspects, to locate victims, and to detect banned goods like bombs or cocaine. A detection dog "alerts" his handler either by sitting down or by barking. The dogs are trained intensively to identify specific odors; the police handlers receive special instruction as well.

In the field, the handler uses the dog's alert as probable cause to conduct a search. (Probable cause is a reasonable belief based on sufficient facts.) But does the sniffing constitute a search in the first place? If it does, then probable cause must exist before the sniffing itself is allowed under the Constitution.

The Fourth Amendment provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Florida v. Jardines involves a 2006 arrest. The police received an unverified and anonymous tip that Joelis Jardines was growing marijuana in his home. After the police surveilled the house and witnessed no activity, a handler took his detection dog up to the front door, where the dog alerted to a drug odor. Thereafter, a detective went to the front door and claimed to smell marijuana. On that basis, a warrant was obtained, and Jardines was arrested. But Jardines has sought to have the evidence against him suppressed on the grounds it had been obtained through an illegal search.

Florida v. Harris involves a 2006 traffic stop for expired tags. The officer noticed the driver, Clayton Harris, was nervous and had an open beer in his truck. When Harris refused to consent to a search of his vehicle, a detection dog did a "free air sniff" and alerted to drugs. In the ensuing search, the officer discovered over 200 pseudoephedrine pills and other precursors of methamphetamine. Interestingly, the dog had not been trained to detect pseudoephedrine. Charged with the intent to manufacture meth, Harris sought to suppress the evidence, but he was denied.

Two aspects of these cases are worth examining closely. First, does the sniff of a dog constitute either a search or a probable cause for one? Second, how reliable are the alerts given by detection dogs?

From Institute for Justice, which has filed an amicus brief in the Harris case, "Upcoming Dog-Sniffing Cases Raise Serious Civil Forfeiture Concerns":

Increasingly ... police have been using drug-sniffing dogs to establish probable cause to seize, and ultimately keep through civil forfeiture, cash, cars and other property on the grounds that the property may be linked to a drug crime.

"Using a police dog alert as the sole justification to search and seize private property violates constitutional guarantees," said IJ Attorney Darpana Sheth, who authored the Institute for Justice's amicus brief in the Florida v. Harris case, which will be heard on October 31, 2012, before the U.S. Supreme Court. "First, numerous studies, including a recent one by the University of California-Davis, have shown that drug-sniffing dogs are unreliable because, all too often, they are alerting due to cues from their handler or residual odors, rather than the actual presence of drugs. Second, police dog handlers work in departments that are often funded through forfeiture funds, giving them a direct financial incentive to 'police for profit' rather than pursue the neutral administration of justice. These are two serious concerns the Court should not ignore as it hears this case."