The Supreme Court Goes to the Dogs

Among the cases scheduled for argument this week are Florida v. Jardines and Florida v. Harris, two criminal cases involving the constitutionality of dog sniffs.  The question in Jardines is whether a dog sniff at the exterior of a home is a "search" within the meaning of the Fourth Amendment.  That question, in turn, depends on whether the occupant of the house has a "reasonable expectation of privacy" against the dog's detection of the odors emanating from the home.

This one isn't hard (at least if we accept precedent): Jardines should lose.  Jardines will analogize dog sniffs to thermal imagers, the use of which was held in United States v. Kyllo to be a search), but the analogy fails because of the limited information dog sniffs reveal.  In past cases, notably United States v. Place (see esp. at pp. 706-07) and Illinois v. Caballes, the Court held that dog sniffs of luggage and cars were not "searches."  Those cases relied on more than the reduced expectation of privacy individuals have in those areas (although the location of the search was noted); rather, the Court argued that the key fact about dog sniffs was that they disclosed only the presence or absence of contraband.  Thermal imagers, by contrast, are capable of providing far more details about the area searched, including the time at which the lady of the house takes her nightly sauna and bath.  At least until now, the Court's position has been that individuals have no reasonable expectation of privacy in the possession of contraband, and so a dog sniff that reveals only that information is not a "search."  The fact that the sniff occurred here at a home, as opposed to a car or at an airport, should make no difference.

Harris is a bit tougher.  This time the dog sniff took place at Harris's truck.  The dog sniffed the outside of the truck, alerting to the presence of contraband.  The resulting search of the interior of the truck's cab turned up materials for manufacturing methamphetamine.  The Florida Supreme Court nevertheless suppressed the evidence, for two reasons.  First, the state court held that the sniff could not justify a search of the interior of a vehicle.  Second, the court held that the dog sniff did not yield probable cause because there was insufficient evidence presented about the dog's training and reliability.

The Florida court's first argument is clearly wrong.  If the police have probable cause they may search the entire vehicle, including the interior and including containers inside the vehicle.  California v. Acevedo.  Whether there was probable cause, however, is a more difficult issue for the government.  If training and experience of human officers are relevant to assessing probable cause (and they are), the same matters should be relevant in assessing whether the dog's alert gives us probable cause to believe that contraband is being concealed.  Whether the police officer is human or canine, we have to assess the likelihood that the officer has correctly inferred criminal activity from his/her/its sensory observations, and the observer's training and experience are valuable indicators of reliability.  Still, I can imagine some hesitancy about turning probable-cause hearings into complicated examinations of police departments' dog-training procedures.