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Drug dog case nips at justices’ heels

Was K-9’s sniff outside home an illegal search?

- Associated Press - Tuesday, January 3, 2012

MIAMI — The super-sensitive nose of Franky the drug dog is at the heart of a question that has now reached the doorstep of the U.S. Supreme Court: Does a police K-9's sniff outside a house give officers the right to get a search warrant for illegal drugs, or is the sniff itself an unconstitutional search?

Florida's highest state court said Franky's ability to detect marijuana growing inside a Miami-area house from outside a closed front door crossed the constitutional line. State Attorney General Pam Bondi, an elected Republican, wants the nation's justices to reverse that ruling.

The Supreme Court could decide this month whether to take the case, the latest in a long line of disputes about whether the use of dogs to find drugs, explosives and other illegal or dangerous substances violates the Fourth Amendment protection against illegal search and seizure.

"The Florida Supreme Court adopted a very broad reading of the Fourth Amendment that is different from that applied by other courts. It's an interpretation that a majority of the U.S. Supreme Court will question," said Tom Goldstein, who publishes the widely read SCOTUSblog website and also teaches at the Harvard and Stanford law schools.

The case, Florida v. Jardines, is being closely monitored by law enforcement agencies nationwide, which depend on dogs for a wide range of law-enforcement duties.

"Dogs can be a police officer's best friend because they detect everything from marijuana or meth labs to explosives," said Kendall Coffey, a former U.S. attorney in Miami now in private practice. "They are an essential tool for law enforcement."

The 8-year-old Franky retired in June after a seven-year career as a K-9 dog with the Miami-Dade Police Department. He's responsible for the seizure of more than 2.5 tons of marijuana, 80 pounds of cocaine and $4.9 million in drug-contaminated money. And because he's an amiable chocolate Labrador, he was used extensively in airports, sports arenas and other places where people congregate.

"He's a friendly, happy dog," said his former handler, Detective Douglas Bartelt, who kept Franky after he retired.

The U.S. Supreme Court has approved drug dog sniffs in several other major cases. Two of those involved dogs that detected drugs during routine traffic stops. In another, a dog hit on drugs in airport luggage.

The difference in the Florida case is that it involved a private residence. The high court has repeatedly emphasized that a home is entitled to greater privacy than cars on the road or a suitcase in an airport. In another major ruling, the justices decided in 2001 that police could not use thermal imaging technology to detect heat from marijuana-growing operations from outside a home because the equipment could also detect lawful activity.

"We have said that the Fourth Amendment draws a firm line at the entrance to the house," the court ruled in that case, known as Kyllo v. United States.

On the morning of Dec. 5, 2006, Miami-Dade police detectives and U.S. Drug Enforcement Administration agents set up surveillance outside a house south of the city after getting an anonymous tip that it might contain a marijuana operation. Detective Bartelt arrived with Franky, who quickly detected the odor of pot at the base of the front door and sat down as he was trained to do.

That sniff was used to get a search warrant from a judge. The house was searched and its lone occupant, Joelis Jardines, was arrested trying to escape out the back door. Officers pulled 179 live marijuana plants from the house, with an estimated street value of more than $700,000.

Mr. Jardines, now 39, was charged with marijuana trafficking and grand theft for stealing electricity needed to run the highly sophisticated operation. He pleaded not guilty and his attorney challenged the search, claiming Franky's sniff was an unconstitutional law enforcement intrusion into the home.

The trial judge agreed and threw out the evidence seized in the search, but that was reversed by an intermediate appeals court. In April a divided Florida Supreme Court sided with the original judge.

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