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Drug-Sniffing Dogs Need Warrants Outside House

WASHINGTON (CN) - Cops who led a drug-sniffing dog around the outside of a private home should have obtained a warrant, the U.S. Supreme Court ruled Tuesday.

During a 2006 visit to a suspected marijuana grow house, two Miami-Dade detectives led a drug-sniffing dog named Franky around the property on a leash. After Franky gave a positive alert for narcotics, Detective William Pedraja obtained a warrant to search the property. Its tenant, Joelis Jardines, was arrested as he attempted to flee, and officers quickly found marijuana plants in the home.

Jardines was charged with trafficking in cannabis, but the Florida Supreme Court suppressed the evidence as inadmissible in April 2011 because it found that the warrantless "sniff test" violated the Fourth Amendment.

The U.S. Supreme Court took up the case last year and affirmed Tuesday.

"At the amendment's 'very core' stands 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion,'" Justice Antonin Scalia wrote for a five-member majority. "This right would be of little practical value if the state's agents could stand in a home's porch or side gar­den and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man's property to observe his repose from just outside the front window.

"We therefore regard the area 'immediately surrounding and associated with the home' - what our cases call the cartilage - as 'part of the home itself for Fourth Amend­ment purposes.'"

It is also apparent that Jardines did not give the police an implicit license to look around the outskirts of the home, according to the ruling.

"This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave," Scalia wrote (parentheses in original). "Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the nation's Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is 'no more than any private citizen might do.'

"But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invita­tion to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detec­tor, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to - well, call the police. The scope of a license - express or implied - is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer's checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search."

Justice Elena Kagan highlighted the interest of privacy in a brief concurring opinion.

"Detective [Douglas] Bartelt's dog was not your neighbor's pet, come to your porch on a leisurely stroll," wrote Kagan, who was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. "As this court discussed earlier this term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners. They are to the poodle down the street as high-powered binocu­lars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home - the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the court holds to­day. Was it also an invasion of privacy? Yes, that as well.

"The court today treats this case under a property ru­bric; I write separately to note that I could just as happily have decided it by looking to Jardines' privacy interests."

Justice Samuel Alito wrote the dissent, joined by Chief Justice John Roberts and Justices Anthony Kennedy and Stephen Breyer.

They argued that the "otherwise lawful visit" to a suspect's front door does not become trespass simply because a visitor is accompanied by his dog.

"Where is the authority evidencing such a rule?" Alito asked. "Dogs have been domesticated for about 12,000 years; they were ubiquitous in both this country and Britain at the time of the adoption of the Fourth Amendment; and their acute sense of smell has been used in law enforcement for centuries. Yet the court has been unable to find a single case - from the United States or any other common-law nation - that supports the rule on which its decision is based. Thus, trespass law provides no support for the court's holding today."

The dissent also challenged the privacy issues from the concurring opinion.

"A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human," Alito wrote.

He insisted that Franky the dog's visit to the Jardines property was not the "far-flung exploration" described in the majority opinion.

"A critical fact that the court omits is that, as respond­ent's counsel explained at oral argument, this entire process - walking down the driveway and front path to the front door, waiting for Franky to find the strongest source of the odor, and walking back to the car - took approxi­mately a minute or two," the dissent states. "Thus, the amount of time that Franky and the detective remained at the front porch was even less. The court also fails to mention that, while Detective Bartelt apparently did not personally smell the odor of marijuana coming from the house, another officer who subsequently stood on the front porch, Detective Pedraja, did notice that smell and was able to identify it."

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