Does K-9's Sniff Violate Constitution?

[MJS]

http://www.policeone.com/legal/articles/4912749-Supreme-Court-ponders-Fla-drug-dogs-sniff/

MIAMI — The U.S. Supreme Court is being asked to decide whether a Florida police K-9's sniff outside the front door of a marijuana grow house violates the Constitution.
Florida's attorney general wants the justices to reverse a state Supreme Court ruling that the dog's sniff violates the sanctity of the home


The nation's high court has previously said a home deserves special protection from law enforcement searches. Lawyers for Florida say a dog's nose is different because it detects only illegal activity that's not entitled to privacy.
The justices could decide later this month whether to take the case.
Law enforcement officials say a finding against the use of K-9s outside the home could jeopardize an essential police tool. But the state Supreme Court said police cannot cross that constitutional line.

The comments in the article are pretty interesting. So...what are your thoughts on this?

 

[Bill Mattocks]

Off the cuff, I can't see how it can violate the right to privacy. If you want to keep dogs from sniffing, keep your smells inside.

This reminds me of the issue of garbage. A warrant is not needed to paw through your trash looking for evidence of illegal activity. The courts have held that you have abandoned it - it's not your property anymore. If you wanted to keep it private, you had that choice; don't put it in the trash.

"Plain view" is kind of the same way. If you get pulled over and the officer sees something he or she believes is contraband (say drugs or open containers of alcohol, perhaps weapons) inside the vehicle in plain view, they don't need consent to search at that point. Same thing if they pull you over and smell the odor of metabolized alcohol or the odor of burning marijuana emanating from your vehicle. None of these things are considered a violation of privacy.

Is a dog's superior nose different from a human's nose? Sure. And in what way is that an invasion? The odor, slight thought it is, still escapes the house, and there is no crime in sealing the house such that no smell can escape.

If this were ruled an unconstitutional invasion of privacy, no dogs (or machines) could sniff cars at border crossings for drugs, or explosives, etc. I think the state Supreme Court messed up.

 

[MJS]

Off the cuff, I can't see how it can violate the right to privacy. If you want to keep dogs from sniffing, keep your smells inside.

This reminds me of the issue of garbage. A warrant is not needed to paw through your trash looking for evidence of illegal activity. The courts have held that you have abandoned it - it's not your property anymore. If you wanted to keep it private, you had that choice; don't put it in the trash.

"Plain view" is kind of the same way. If you get pulled over and the officer sees something he or she believes is contraband (say drugs or open containers of alcohol, perhaps weapons) inside the vehicle in plain view, they don't need consent to search at that point. Same thing if they pull you over and smell the odor of metabolized alcohol or the odor of burning marijuana emanating from your vehicle. None of these things are considered a violation of privacy.

Is a dog's superior nose different from a human's nose? Sure. And in what way is that an invasion? The odor, slight thought it is, still escapes the house, and there is no crime in sealing the house such that no smell can escape.

If this were ruled an unconstitutional invasion of privacy, no dogs (or machines) could sniff cars at border crossings for drugs, or explosives, etc. I think the state Supreme Court messed up.

I was thinking the same thing. Pretty much just like dogs that are brought in to sniff the outside of lockers. While some may think the lockers are private, the students don't own them, the school does. If, during the sniff, the dog hits on something, just like an officer that smells something inside the car, is enough PC, I'd imagine, to search.

Then again, I think there have been discussions on whether or not a LEO who is chasing someone on foot, could enter the home of the suspect to make an arrest. Just because the badguy ducks into an apartment, doesnt mean the cop should have to take that as a loss.

 

[punisher73]

There are a couple of things that I think are important to distinguish. I have heard people supporting this decision as unconstitutional and talking as if the police were just going up door to door with their dogs smelling the houses looking for drugs in neighborhoods. That is not whar happened...

In this case, the police were CALLED to the house to investigate something ele, and the police do have the right to go up and do a knock and talk. It was at this point the dog smelled the drugs.

 

[Razor]

As Bill says above, it is passive sensation. The molecules are coming out of the house into the open air and into the dog's olfactory system. It would be different if they were actually violating contained privacy. Just my opinion in general, I don't know if courts view it in the same way.

Punisher, even if they were going door to door would it make a difference? Police officers patrol on the look-out for crime and if they see it that's the same as having dogs sniffing around isn't it? Just to be clear, those aren't rhetorical questions, I'm not very familiar with US law and am interested

 

[ballen0351]

I was a K-9 handler for 3 years. I was always taught If an officer can legally be there so can the dog and if the dog alerts then it counts. For example I couldnt just walk up into a random yard fo no reason and scan a house but I could walk thru and apartment building and sniff doors as long as I stayed in the common areas that the public have access to. If the apartment needed a code or key to get inside then I couldnt go in. Cars were the same if it was on a public street or parking lot I could scan all the cars I want. If they were parked in a private driveway I couldnt.
As for traffic stops I couldnt make a person wait an unreasonable amount of time to do the scan but the courts have never ruled what unreasonable amount of time is.

 

[MA-Caver]

Since a K-9 trained police dog is just that... a dog and their sense of smell is thousands of times more sensitive than any human, and it is considered an officer of the law, just as it was mentioned same as if a human cop gets a whiff of something that he/she knows is an illegal substance then they got PC right there. Any advantage police can have in busting criminals is a plus.
A K-9 officer gets a whiff of something it's been trained to react to and notifies his "partner" (the human element), is no different than a patrolman seeing/smelling something illegal and informing their Sargent.

 

[punisher73]

As Bill says above, it is passive sensation. The molecules are coming out of the house into the open air and into the dog's olfactory system. It would be different if they were actually violating contained privacy. Just my opinion in general, I don't know if courts view it in the same way.

Punisher, even if they were going door to door would it make a difference? Police officers patrol on the look-out for crime and if they see it that's the same as having dogs sniffing around isn't it? Just to be clear, those aren't rhetorical questions, I'm not very familiar with US law and am interested

It's a tough question. If I am in the common area like a parking lot, no problem walking my dog around. Walking in people's yards close to their house for the sole purpose of finding drugs, probably not. There was a previous case where police used a helicoptor and IR goggles to see heat signatures from the grow lamps. It was found to be unconstitutional as an invasion of privacy. So who knows how the courts would rule. For me personally as an LEO and a citizen, I don't like the idea of cops walking around the edge of my house trying to sniff what they can sniff with no reason to be there. It is a fine line legally. For example, "plain view" if I go to a house for a reason and while there see drug items through the window etc. I can act on it. but, it would be an invasion of privacy for me to walk around the house or just walk up and look through the windows for no reason.

 

[chinto]

yes an agent of the state brought the animal to that location to sniff. If they have no warrant I would say its unlawful and Illegal with out question. walks up to the front door and sees through the window obvious marijuana plants with out walking around to peek through windows... hay bust them!

but the constitution is clear no search with out a warrant issued by a judge or on provably cause not involving a search for that cause. things in plain sight, you chased him in to the structure.. etc.