October 31, 2012
They’re already allowed to search your car, your crotch and your luggage. Now, man’s best friend is about to be allowed to sniff around outside your home, too. And if they smell something they don’t like, you’re going to jail. Your Constitutional right to secure your home against unreasonable search and seizure is about to be erased.
Gregory Garre, an attorney representing the state of Florida, argues that it’s perfectly legal to use drug-detection dogs to sniff around your outside house and if the dog alerts they can use that to justify entering your home to conduct a search. He compares it to Trick-or-Treaters on Halloween night:
“The police ‘did the same thing that millions of Americans will do on Halloween night, which is walk up to the front steps, knock on the door, and while they were there, they took in the air and the dog alerted to the smell of illegal narcotics.’”
The difference is, Americans don’t have to open their doors to Trick-or-Treaters if they don’t want to, but we all know what happens if you deny entry to a cop.
At issue is a 2006 case involving Joelis Jardines. After receiving an anonymous crime-stoppers tip that Jardines was conducting illegal drug activity in his home, police officers showed up on his doorstep with Franky, their drug-sniffing dog. When Franky alerted for drugs – outside the home, on the front porch – police officers got a warrant, searched Jardines’ home, found marijuana, and arrested him.
Jardines’ lawyer, Public Defender Howard Blumberg, argued that the dog sniff constituted illegal search and seizure and the Florida Supreme Court agreed.
“The entire history of the Fourth Amendment really is based on the fact that the home is different,” says Jardines’ lawyer, Howard Blumberg. “It goes all the way back to the early 1600s and the saying that a man’s home is his castle.”
The case now stands before the US Supreme Court where justices will be asked to decide if allowing a dog to perform a drug-sniff at the front door is a Fourth Amendment search requiring probable cause. Blumberg warns that if the use of drug-sniffing dogs outside the home is not deemed to be a search the “real-life consequences could be profound.”
“Police would be free ‘to walk up and down suburban neighborhoods, go up to each door, and see if the dog alerts to contraband.’ And they could do the same thing in apartment houses, checking out each apartment door ‘based on nothing, or on an anonymous tip, or because that’s what they want to do that day.’”
The Fourth Amendment of the U.S. Constitution says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In 2001 Justice Antonin Scalia ruled that police could not use heat-detection devices outside a home to detect marijuana grow lights, calling it an invasion of privacy because the technology could also detect innocent details of the homeowner’s life, such as “the hour at which the lady of the house takes her bath.”
Of course, the state argues that the police have much better things to do with their time than walk their drug-sniffing dogs around homes and apartment buildings if they don’t have probable cause. They also argue that their dogs only alert to drugs, so what’s the problem?
The problem is, when it comes to drug sniffing dogs you’re damned if you do and damned if you don’t. If you don’t allow the search you’re automatically assumed guilty. If you do, those dogs are going to find something and you’re either going to jail or the cops are going to confiscate whatever they find.
Under current laws, law enforcement agencies are allowed to seize assets they suspect are tied to illegal activity. Once the property has been seized it’s up to the owner to prove he obtained those assets legally. In about 80 percent of forfeiture cases the property owner is never charged with a crime, and he never gets the property back.
Consider the 2010 case of Jerome Chennault who lost $22,870 in a traffic stop. While traveling between South Carolina and his home in Henderson, Nev., Chennault was pulled over in Edwardsvill, Ill. for following another car too closely. The officer thought he had an “inappropriate laugh” and asked Chennault if he could search his car. Of course, Chennault said yes, what else could he say?
The officer found $22,870 in a side pocket of Chennault’s travel bag. A narcotics dog was called to the scene and the dog gave a positive alert when it sniffed the cash.
When Chennault was questioned further, he told officials that he had withdrawn $28,000 from an account in Las Vegas “and had left home with it three or four months prior intending to buy a house in South Carolina while staying with a nephew,” according to the complaint.
Chennault then had to spend more than $2,000 in court and attorney fees to get his money back. Madison County Public Defender John Rekowski said, “To forfeit when there is a crime is one thing. To say that you have to come in and post, in this case, more than $2,000 with the court to get back the $22,000 that they took from you because they felt like taking it, is ridiculous.”
In a 2005 case, Illinois v. Caballes, the U.S. Supreme Court ruled that having a K9 cop sniff the outside of a vehicle during a routine traffic stop does not violate the Fourth Amendment. However, Justice David Souter dissented, pointing out the mounting evidence that drug-sniffing dogs aren’t always reliable, noting that an Illinois study found the dogs failed 12.5 to 60 percent of the time.
Dogs are bred and trained to please their human owners and they can easily be manipulated to alert whenever their handler wants them to. Even the most conscientious handler can inadvertently use body language that he’s suspicious of something and the dog will alert simply because that’s the way he’s been trained.
In 2011, the Chicago Tribune published a review of drug searches which found that, over a 3-year period, only 44 percent of dog alerts led to the discovery of actual illegal drugs. The report also stated that for Hispanic drivers the success rate was only 27 percent, making it even more obvious that drug-sniffing dogs are responding to the biases of their handlers.
The Huffington Post showed video of a traffic stop to K-9 expert, Gene Papet, the Executive Director of K9 Resources.
“Just before the dog alerts, you can hear a change in the tone of the handler’s voice. That’s troubling. I don’t know anything about this particular handler, but that’s often an indication of a handler that’s cuing a response.” In other words, it’s indicative of a handler instructing the dog to alert, not waiting to see whether the dog will alert.”
“You also hear the handler say at one point that the dog alerted from the front of the car because the wind is blowing from the back of the car to the front, so the scent would have carried with the wind,” Papet says. “But the dog was brought around the car twice. If that’s the case, the dog should have alerted the first time he was brought to the front of the car. The dog only alerted the second time, which corresponded to what would be consistent with a vocal cue from the handler.
The Florida case is expected to be presented to the U.S. Supreme Court in December.