U.S. Supreme Court

Chemerinsky: The Fourth Amendment Goes to the Dogs


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Erwin Chemerinsky

Franky and Aldo, two drug sniffing dogs, will be key canines in the U.S. Supreme Court Oct. 31, when the court hears two cases concerning whether police use of such dogs violates the Fourth Amendment. The cases are likely to be important in clarifying the law regarding this ubiquitous police practice and, more generally, for what they say about what constitutes a search.

Both cases come from Florida. In Florida v. Jardines, the court will consider whether the use of a drug sniffing dog at a person’s home is a search under the Fourth Amendment. Police received a crime stopper’s tip that Joelis Jardines was growing marijuana in his house. Officers took a drug sniffing dog, Franky, to the front door of Jardines’s home. Franky signaled the presence of drugs and the police used this as the basis for obtaining a search warrant.

A search occurred and marijuana plants were found. Jardines was charged with drug trafficking and other crimes. The trial court granted his suppression motion and the Florida Supreme Court affirmed. excluding the evidence gained from searching Jardines’s home on the ground that the use of the drug sniffing dog was itself a search without the necessary probable cause or warrant.

There have been only three prior Supreme Court cases concerning the use of such dogs and both arose in very different contexts. In United States v. Place, the court in 1983 rejected a Fourth Amendment objection to the use of a drug sniffing dog used for a piece of luggage in an airport. When Place’s behavior in the airport raised suspicion, the police took his suitcase and had a dog sniff it. The dog signaled the presence of drugs, the suitcase was opened, and cocaine was found.

The Supreme Court rejected a Fourth Amendment challenge and held that the use of the drug sniffing dog was not a search. The court stressed that the luggage was in a public place and that the use of the drug sniffing dog was less intrusive than opening the suitcase and exposing non-contraband to view. In language that might be relevant in Jardines, the court said: “Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item.”

In 2000’s City of Indianapolis v. Edmond, the court held that it violated the Fourth Amendment for the police to create a checkpoint at which they stopped cars to have a drug sniffing dog detect the presence of drugs. The court explained: “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Although the court found the checkpoint to violate the Fourth Amendment, it also said, relying on Place, that the use of the dogs was not a search because there was no entry into the car and was not designed to reveal any information other than the presence of illegal drugs.

Finally, in Illinois v. Caballes, the court ruled in 2005 that a sniff by a drug detection dog of the exterior of a vehicle during the course of a lawful traffic stop did not constitute a Fourth Amendment search. The court once more emphasized that there was no infringement of the reasonable expectation of privacy in the use of such dogs to reveal only the presence of contraband.

Florida understandably relies on these cases, while Jardines points to the court’s 2001 ruling in Kyllo v. United States, which held that police use of a thermal-imaging device to scan a private home was a search. The court said that the thermal-imaging device, which detects the presence of heat consistent with the use of high-intensity lamps used in growing marijuana, infringed the reasonable expectation of privacy. The court emphasized the special status of the home under the Fourth Amendment, but also stressed that such devices are not in widespread use and could detect more than the presence of contraband; they could see the outlines of a body and the activities in which a person is engaged.

Jardines also relies on the Supreme Court’s decision this year in United States v. Jones, which held that it violated the Fourth Amendment for the police to place a GPS device on a car without a valid warrant and then track its movements for 28 days. The court said that placing the device on the car was a trespass and that a trespass is sufficient for a search within the meaning of the Fourth Amendment. Jardines contends that it was a trespass when the officers and Franky came to his front door.

The other dog case to be argued on Oct. 31, Florida v. Harris, involved a traffic stop and Aldo. In 2006, Clayton Harris was stopped by police officers for driving with expired license plates. One of the officers thought Harris seemed drug impaired and had Aldo sniff the outside of Harris’s truck. At one of the door handles, Aldo signaled the presence of illegal drugs. Based on this, Harris’s truck was searched and the components for making methamphetamines were found.

The issue is when will a drug detection dog’s alert to the exterior of a vehicle provide an officer with probable cause to conduct a warrantless search of the interior of the vehicle. The Florida Supreme Court said that “because a dog cannot be cross-examined like a police officer on the scene, whose observations often provide the basis for probable cause to search a vehicle, the [s]tate must introduce evidence concerning the dog’s reliability.”

The court was concerned about the “mythic reliability” of drug sniffing dogs and imposed a heaving burden on police wishing to use such drugs as a basis for a search. The court stated: “Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the [s]tate must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability in being able to detect the presence of illegal substances within the vehicle.”

The underlying issues in these cases transcend the use of drug sniffing dogs. What if police had a device that could detect the presence of drugs from the air outside a home or a car? Would that be a search? Is a police officer’s presence on a person’s front doorstep a trespass, and therefore always a search when done for law enforcement purposes? How much must police show in order to establish the reliability of the basis for their search?

Franky and Aldo, of course, won’t be in the courtroom, but they likely will play an important role in shaping the law of the Fourth Amendment.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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