Today the United States Supreme Court struck down the use of a drug dog to sniff the front door of a home. You can read more detail about the case from Reuters here. In other news, this is one of the rare instances when The Law Office of Brian Jones agrees with Justice Scalia.What does this mean? It means that police can’t show up to your house and tell their drug dog to sniff the air coming out under your door. In this case, Florida police received an anonymous tip that Mr. Jardines was growning marijuana. Several weeks later, police decided to bring their labradore, “Franky” along to see if he could smell drug odors coming from the house. Franky alerted and police then obtained a warrant based on his sniff. And that is where the case now falls apart for the state of Florida.Writing for a majority of the court, Scalia reasoned this case was similar to that of Kyllo v. United States, which dealt with police using infrared, heat detecting equipment to discern whether someone was growing marijuana in their house. That case is famous for Scalia’s line regarding the legality of infrared technology when he stated that such equipment could reveal when the lady of the house “takes her sauna” for the evening. (Note to my wife: we’re not getting a sauna.) Under normal circumstances I think the Ohio Associative of Criminal Defense Lawyers would revoke my membership for saying this but, Scalia is right. When police equipment or tactics reveal intimate activity in the home that conduct should be illegal.The most puzzling aspect of this case is how the justices voted. This case was decided by a close-as-can-be 5-4 decision. Voting down Franky’s sniff with Scalia were justices Clarence Thomas (Scalia’s bff), Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg. Voting to uphold the dog sniff were justices Samuel Alito, Anthony Kennedy, Stephen Breyer, and Chief Justice John Roberts. In the prevailing side, two of the most conservative justices (Scalia and Thomas) were joined by 3 of the most liberal. People forget that Ruth Bader Ginsburg was previously a big time criminal defense lawyer in Delaware for the ACLU securing many victories regarding women’s rights. So it’s not everyday you see these 5 justices voting together, especially on whether a dog sniff should be upheld.And I say “dog sniff” because a majority of the court did not consider this a search under the 4th Amendment. (For more analysis on what is a search see last month’s blog post about drones.) Only in the concurring opinion, written by Elena Kagan and joined by Sotomayor and Ginsburg, did any plurality of the Court decide that police action in this case arose to a search. So this case does still leave questions even as it restricted the actions of police and their dogs.
Lastly, TLOBJ would like to give props to public defender Howard Blumberg, who successfully fought this case for his client and no doubt spent hundreds of hours litigating it.