Today at least, Gregory Garre is dog’s best friend in the Supreme Court.
The Court heard two cases involving when dogs can use their noses to help fight the war on drugs. Garre argued both – back to back – for the State of Florida. Fresh on the heels of his representation of Texas in the recent affirmative action case, it was an impressive morning.
The first case presented the question of whether a dog – here, named Frankie – brought to the front door of a house, can sniff at the front of the house for drugs.
Garre came out of the box asserting that there is no legitimate expectation of privacy in contraband. That didn’t go so well….
Garre ran straight into a wall of opposition from Justice Kennedy. The most frequent swing vote told Garre he just wasn’t buying such a broad statement of law.
Rather, Justice Kennedy, and his eight life-tenured friends, preferred to while away the morning talking about who can come to your front door and when.
The basic rule is that anyone coming up to your house is a trespasser.
Clearly, though, there is implied permission for trick-or-treaters (Garre’s nod to Halloween) and Girl Scouts selling cookies.
The rest of the conversation revealed, yet again, how deeply unique the Justices’ America is.
Police officers selling tickets to the policemen’s ball are allowed to walk up to your door. Are there still policemen’s balls? Are those tickets sold door to door?
Traveling salesmen can walk up to your door. Again, Willy Loman’s profession is long gone.
Justice Kennedy noted that an officer can approach you — either at your home or on the street — for questioning, without doing violence to the Fourth Amendment. Here is what he imagines a police officer’s questions would be:
“Hello, are you coming from the park? Are these your children? Did you have a nice time at the park? Is this where you live? What do you do for a living? Do you work at home?”
What officer would ask these questions? Is there no way we can amend the Constitution to require the Justices to watch Breaking Bad?
Eventually most of the folks in the room (except perhaps for Justice Scalia) seemed to think that a police officer can walk up to your door as a part of a crime investigation and that this isn’t a trespass; it’s a part of implied consent.
Justice Breyer advanced the conversation by including that the officer can breathe while on the doorstep – which is what would allow the officer to smell any contraband inside.
So, assuming that much is clear, can the officer bring his dog with him? Does the implied consent to allow an officer to come to your door broad enough to allow a dog to come along on the visit?
There seemed to be agreement with Justice Sotomayor’s assertion that the dog would have to be on a leash.
Justice Sotomayor also noted that many people have allergies.
Garre parried that such a person could always put up a “no dogs allowed on my doorstep” sign.
In the case at issue — yes, right, this is still about a case — the dog was on the doorstep for between five to ten minutes examining the house with its nose. It bounded on a long leash at the front of the house while it smelled and tried to find the source of the smell it was alerting to. Justice Kagan described it as a “lengthy and intrusive process.”
Perhaps we all agree that a docile dog on a short leash can visit our stoops, but maybe we draw the line at a bounding and intrusive dog?
Lurking behind all of this is the Court’s 2001 opinion in Kyllo v. United States. There, in an opinion by Justice Scalia, the Court rejected the use of heat imagery to allow the police to see when there are unusual heat signatures (such as from grow lights) in a house.
Scalia recoiled at the idea that the police could use technology to learn “at what hour each night the lady of the house takes her daily sauna and bath.”
So how is a dog different from a heat-imaging thing? Garre pointed out that dogs have been used for thousands of years. Justice Ginsburg noted that it’s only been since the 70s that they’ve been used to find drugs.
Justice Kagan imagines that the police could use a Smell-o-matic, which would be exactly the same as a dog in its ability to alert on smells. What would the constitutional difference be between a dog and the Smell-o-matic?
Everyone agrees that dogs have better noses than humans. No one yet seems to know how the Fourth Amendment lets police use them.
A decision on this case — and the second, involving challenges to the reliability of an individual dog’s alerts — will come out later in the Term.
Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.