On Oct. 31, the U.S. Supreme Court will hear two cases about drug-sniffing dogs that have implications about our right of privacy. Michael Kelley, writing in Business Insider, says, “One case [Florida v. Harris] will ask the court to clarify how accurate a drug dog must be to establish probable cause for the search of a vehicle. The second case [Florida v. Jardines] asks if police may take a drug dog to the porch of a house to sniff for evidence of marijuana inside.”
The United States has filed a “friend of the court” brief for Florida v. Jardines, arguing that a dog sniffing for illegal drugs outside a home, at the front door, is not a “search” prohibited by the Fourth Amendment. For Florida v. Harris, the United States has filed a more narrowly worded friend of the court brief, stating that in this particular instance, “the drug-detection dog’s alert provided probably cause to search” the truck. The National Police Canine Association has also filed friend of the court briefs for both cases indicating that they believe the dogs and their police handlers to have been in the right.
In a New York Times op-ed, Jeffrey Meyer recounts his experience with a bomb-sniffing dog. “The officer coldly instructed me to open the trunk of my car,” Meyer recalls. He opened the trunk as instructed, and the German Shepherd rose and pulled one of Meyer’s dog’s prized tennis balls from the trunk. Besides his anecdote, Meyer gives an overview of the questions facing the Court.
He says that in the past “the court has always accorded special privacy protection for people’s homes.” Will that prove true in the Florida v. Jardines decision? In regard to Florida v. Harris where the accuracy of a dog’s sense of smell is an issue in establishing probable cause, Justice Souter once dissented in another case, Illinois v. Caballes, writing that “The infallible dog … is a creature of fiction.” Souter’s opinion in Florida v. Harris will be interesting. Certainly Jeffrey Meyer’s experience with the drug-sniffing dog showed fallibility.
My husband had a firsthand experience with a drug-sniffing dog. He and friends drove our small motor home to the great chili cook-off in Terlingua, Texas. Their chili didn’t win, by the way. When they had some time on their hands, they made a trip across the Mexican border.
On the return trip, a drug-sniffing dog was on duty at the crossing. His handler asked for permission to do a drug search of the motor home. The guys piled out of the motor home, and the dog entered. He found no evidence, and then the dog’s handler asked if he could plant some marijuana in the motor home for a training exercise for the dog.
My husband, always cooperative, agreed. The agent planted the weed, and then instructed the dog to do his thing. The dog eagerly searched underneath the vehicle and then inside, where he successfully found the “plant.”
It is encouraging to think that training for drug-sniffing dogs is ongoing to increase their reliability and maybe the bomb-sniffing dog that “alerted” on Meyer’s trunk was insufficiently trained. But the more my husband thought about his own experience with the dog at the border, the more unnerving, in retrospect, the experience became.
The chili-cooking friends he was traveling with could easily have had some pot with them, given their lifestyles. Another thought occurred to him as well: what if the plant was just a vehicle for doing a more thorough search because these guys looked like a bunch of druggies in their hairy and unkempt condition? Or what if the border guard had a quota of arrests to make? What if the whole thing had been a set-up? What evidence would he and his friends have that they were innocent? His thoughts began running away with him (too many John Grisham novels perhaps). The experience made him think about how easily one’s rights could be compromised — especially if you don’t know what your rights are in the first place.
My German Shepherd, Tucker, has quite a nose on him, and he can ferret out some pretty smelly stuff to roll in. But is his nose infallible? And do our privacy rights begin or end at our front door? Interesting questions.
To learn more, read “The dog-sniffing cases: Made simple” on the Supreme Court of the United States blog (SCOTUSblog).