Are Dogs 'Scientific Devices'?

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No one disagrees that police canines are noble. But are they reliable? And can cops use them on private homes without a warrant?

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Jessica Rinaldi/Reuters

Not since 1870 have American dogs faced such an important day in court.

As every schoolchild knows, our most famous dog trial occurred on September 23 of that year, when Senator G.G. Vest defended the worth of Ol' Drum, a wandering foxhound killed by a sheepfarmer, by delivering to a Johnson County, Missouri, courtroom his famous Eulogy of the Dog: "The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog," Vest said. Unable to resist such eloquence, the jury found for the dog-owner.

The stakes Wednesday are considerably higher than the statutory $50 in damages Vest won for Ol' Drum's owner. Wednesday's cases concern the professional reputations of Franky, a drug-sniffing K-9 officer of the Miami-Dade Police Department, and Aldo, the drug-sniffing pride of the Liberty County, Florida, Sheriff's Department -- and, beyond them, of all dogs in law enforcement.

Unlike the Ol' Drum case, no one disputes that Franky and Aldo are valuable. Instead, the Supreme Court is being asked to decide whether drug-sniffing dogs are (1) never intrusive and (2) always reliable. The answers will help shape the role dogs play in police work for years to come.

Franky's tale began in 2006, when Miami police and federal drug agents, acting on a "crime stoppers" tip, staked out the home of Joelis Jardines. Franky and his handler took point: As other officers guarded the perimeter, they walked onto the front porch of Jardines' house. There Franky, the state of Florida says, "altered by sitting down immediately after sniffing the base of the front door." Franky's alert formed the basis for a search-warrant affidavit, and when officers served the warrant, they found a marijuana grow and arrested Jardines as he tried to run away.

Earlier that same year, Liberty County Sheriff's Canine Deputy William Wheetley stopped a truck driven by Clayton Harris for expired license plates. Aldo, Wheetley's trained dog, also "alerted" by deeply sniffing the door handle of Harris's truck. Wheetley searched and found the ingredients for making mass quantities of meth.

At their trials, both defendants challenged the use of the dogs as a violation of their Fourth Amendment rights to be free of "unreasonable searches and seizures." The Florida Supreme Court reversed both convictions on Fourth Amendment grounds.

At this point, we need to separate the two issues. With Jardines, the Florida court held, the use of a dog to enter his front porch area was itself a "search," meaning that police should have had enough evidence to get a warrant before the sniff. The Supreme Court has held that dog sniffs in public -- for example, of luggage in an airport -- are not "searches" for Fourth Amendment purposes. In part, that's because dogs supposedly only sniff for illegal drugs, and no one has a "privacy interest" in illegal drugs.

But, said the Florida court, the home is different. Officers approaching a residence with a K-9 dog create a spectacle that is neither brief nor unobtrusive, and that compromises genuine privacy interests:

Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity -- i.e., the preparation for the "sniff test," the test itself, and the aftermath, which culminated in the full-blown search of Jardines' home -- lasted for hours. The "sniff test" apparently took place in plain view of the general public. There was no anonymity for the resident. Such a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident . . . for such dramatic government activity in the eyes of many -- neighbors, passers-by, and the public at large -- will be viewed as an official accusation of crime.

If the courts approve such tactics, the Florida court warned, police may soon be going door to door with dogs, or applying the home sniff test "in an arbitrary or discriminatory manner, or based on whim and fancy."

As for Harris's truck, the question was not whether a warrant was needed before Aldo could sniff; the truck was in public and the sniff was thus not a search. But the Florida court suppressed the evidence against Harris because the state had not submitted proof that Aldo was a properly trained, reliable sniffer dog. If Aldo's "alert" was unreliable, the officer had no probable cause to search the truck.

A dog may "alert" for a number of reasons -- including smelling residue of drugs that were once present, smelling chemicals that smell like drugs but aren't, or the simple desire to please a handler. Scientists agree that dogs are complicated, sensitive animals, not finely calibrated molecular gauges. Dogs, of course, cannot be cross-examined in court about their reasons for alerting in a given case. Unless the state submits detailed records to support the dog's reliability -- including figures on the number of times the dog has "alerted" when no contraband was later found -- courts can't assess whether the "alert" gave officers "probable cause" to search Harris's truck.

Florida, along with the federal government and dozens of state governments as "friends of the Court," is asking the court to hold that (1) a dog sniff at a door is never a search as long as the officers are lawfully present in the first place, and (2) courts should "defer" to the determinations of dog-training companies and police that their dogs are reliable, without any inquiry into the record of the individual dog. Public defenders representing Jardines and Harris argue that such blanket rules will authorize neighborhood sniffs and permit searches based on nothing more than canine eagerness to please.

The irony is that, if dogs are highly sophisticated scientific devices, the state might win Harris's case but lose Jardines's. That's because, in a 2001 case called Kyllo v. United States, the Supreme Court held that use of a scientific device (in that case, a thermal-image device that pictured heat on a screen) to "see" inside a home is a "search" and requires a warrant. The court has also dueled in recent years over how much evidence the prosecution must put on when DNA evidence is introduced. Scientists and technicians who conducted the tests need to explain something about how the tests are conducted, although the court is hopelessly split over how much.

True, as Senator Vest might have said, DNA will never "kiss the hand that has no food to offer" or "guard the sleep of his pauper master as if he were a prince." But that very loyalty and enthusiasm may lead dogs, like their masters, astray.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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