Does it violate the Fourth Amendment when police use drug dogs to sniff out contraband inside a person’s home, without a warrant?
North Dakota is the latest state to challenge the contentious use of drug-sniffing dogs, which some say violates a person’s constitutional rights, specifically the Fourth Amendment. Civil liberties groups such as the American Civil Liberties Union are questioning the use of drug-sniffing dogs and whether or not the use of the dogs violates a person’s constitutional rights, whether it be at an airport, traffic stop, schools or a person’s home.
Most recently, the North Dakota Supreme Court has taken up a case involving the legality of a drug-sniffing dog after Cass County District Judge Wickham Corwin ruled earlier this year that police cannot bring drug-sniffing dogs to look for evidence without first getting a warrant, reasoning that doing so would be a violation of a person’s Fourth Amendment rights.
In his decision, Corwin cited a March 2013 decision from the U.S. Supreme Court that ruled in a 5-4 decision that police must first get a warrant before they can use a drug-sniffing dog to search for drugs, explosives or other hidden items.
In its March 2013 ruling regarding police dogs, the U.S. Supreme Court examined a Florida case from 2006, Florida v. Jardines, in which the Miami-Dade Police Department said they received a tip that Joelis Jardines was growing marijuana in his house. About a month later, detectives with the department’s drug task force, which included Drug Enforcement Agency (DEA) agents, conducted surveillance at Jardines’ house.
The department’s drug-sniffing dog Franky was led up to the home’s front porch by a canine officer, Detective Douglas Bartelt. Franky alerted the team that he smelled something by laying down at the base of the front door. Alleging he could smell marijuana and hear the “sound of a constantly running air conditioner,” which he said was a sign of a drug operation, Bartelt knocked on the door hoping to search the home without a warrant, but there was no answer.
Using information based on the dog’s alert and his own observations, Bartelt obtained a warrant and went back to Jardines home. When the officer’s searched the home they found and seized 179 live marijuana plants, which have an estimated street value of more than $700,000.
A DEA agent arrested Jardines, who was attempting to escape the home through the back door. Jardines was charged with trafficking in excess of 25 pounds of marijuana, which is a first-degree felony, and grand theft for stealing more than $5,000 worth of Florida electricity for his grow lights.
However, the Florida Supreme Court ruled that the search evidence should be suppressed, and the U.S. Supreme Court agreed. Unlike other recent Supreme Court decisions that have OK’d the use of dogs to find drugs, explosives or other illegal and/or dangerous substances during routine traffic stops, airports or mail, the Supreme Court said this case was different because a dog was used at a person’s home.
“The police cannot, without a warrant based on probable cause, hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the home,” Justice Antonin Scalia said for the majority. “And the officers here had all four of their feet and all four of their companion’s, planted firmly on that curtilage – the front porch is the classic example of an area intimately associated with the life of the home.
“We think a typical person would find it ‘a cause for great alarm’ to find a stranger snooping about his front porch with or without a dog,” Scalia said. “The dissent would let the police do whatever they want by way of gathering evidence so long as they stay on the base path, to use a baseball analogy – so long as they ‘stick to the path that is typically used to approach a front door, such as a paved walkway.’ From that vantage point they can presumably peer into the house with binoculars with impunity. That is not the law, as even the state concedes.”
In a concurring opinion, Justice Elena Kagan wrote, “A drug detection dog is a specialized device for discovering objects not in plain view (or plain smell). That device here was aimed at a home – the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the court holds today. Was it also an invasion of privacy? Yes, that as well.”
Apartment exception to Fourth Amendment?
In the North Dakota case, Judge Corwin’s ruling meant that any evidence collected against 19-year-old Matthew Nguyen, who had marijuana in his apartment, was inadmissible in the court because officers from the Fargo Police Department had police dogs search for drugs in his apartment building without first obtaining a warrant.
According to court documents, the Fargo police officers entered the building wearing plain clothes and without a warrant. To gain access to the building, the court documents say the officers asked a woman leaving the building to hold the door open for them, which according to local news reports is a tactic that has been used in several pending drug-related cases in order to obtain search warrants.
Reports say that the officer who entered the building via the woman leaving did not know if the woman was a tenant or if she had authority to allow him into the building, and didn’t tell her he was going to have a dog sniff the building. The officer also never contacted the apartment building’s owner beforehand, did not obtain a search warrant of any kind or have any kind of permission to bring the dog into the building.
The apartment building was reportedly one of several that were being visited by the drug-sniffing dogs, but what’s worrisome for some is that the list of properties in Fargo that were searched in this manner was compiled by Fargo police officers who claim they had obtained information about “possible drug use or odors” at those residences.
Once inside the building, the two officers and the drug-sniffing dog, Earl, conducted a search of the building. According to the appellant brief, Earl is trained to detect marijuana, cocaine, crack cocaine, ecstasy, methamphetamine, psilocybin mushrooms and heroin. Whenever he smells drugs, he lies down or sits, depending on where the odor is coming from.
Earl reportedly alerted the officers he smelled something outside of Nguyen’s door by laying down three or four inches from the door, but never touched the door. After Earl’s alert, the officers obtained a search warrant for Nguyen’s apartment and found marijuana and drug paraphernalia.
Nguyen’s lawyer, Mark A. Friese of the Vogel Law Firm, said that the evidence against his client should be thrown out because Earl alerted the police about the possible presence of a drug in the portion of the hallway right in front of his door, which he said was an extension of Nguyen’s home.
Citing the Supreme Court’s ruling earlier this year that a person has the Fourth Amendment right to be free from unreasonable search and seizures not only inside their home but in the area surrounding it, which is known as the curtilage.
“The present case is an ‘easy’ case,” Friese wrote in his appellate brief. “This Court should refrain from complicating the issue and creating an ‘apartment exception’ to the Fourth Amendment property test, and instead credit the district court’s finding that police trespassed upon curtilage and go no further.”
Accuracy of a drug-dog’s snout
As Mint Press News previously reported, dogs are often used to help police officers find prohibited substances such as marijuana, since dogs have about 200 million scent receptors in their nose — 15 million of which have infrared capability. A human, on the other hand, has fewer than five million scent receptors, none of which exhibit infrared capability.
“That means a dog can literally smell heat,” wrote Barry Cooper, a former narcotics interdiction agent and police drug-dog trainer who decided to leave his job after he saw that prohibition of marijuana was not working.
In a post in the marijuana magazine Cannabis Culture (which is owned by the “Prince of Pot” Marc Emery) Cooper shared information ranging from why police choose to use dogs, how the animals are trained and how to best hide marijuana from police.
He said that in order to train a police dog, a trainer “simply scents a toy with marijuana.” Balls scented with many different odors are thrown into fields with tall grass and a K-9 cadet is tasked with finding the ball. “The dog will locate the ball using its nose to seek out the odors attached to it. By repeating this process, the dog learns to associate the toy with marijuana,” he explained.
“The truth is – and many expert K-9 trainers agree – that only one out of ten K-9 teams in America are efficient enough to reliably detect contraband,” Cooper wrote. “When a baggie of marijuana is hidden in a drawer and the dog passes the scent cone, the dog thinks his toy is nearby and begins to scratch near the location. To encourage a stronger scratch, the handler begins using verbal commands such as, ‘Get it, get it, get it – get it out of there!’ This training process is very easy, resulting in most dogs learning to alert on the scent of marijuana in one day.”