Boo! SCOTUS dog-sniff cases will be heard on Halloween

It's fall, and that means it's the time of year for the US Supreme Court to further strip away the Fourth Amendment to the Bill of Rights as though it was so much bourgeois furniture being destroyed for kindling in the aftermath of an apocalypse. A column in the New York Times points out a pair of Fourth Amendment cases at SCOTUS that bear watching. The op ed by law prof Jeffrey Meyer opened:

THIS Halloween, the United States Supreme Court will devote its day to dogs. The court will hear two cases from Florida to test whether “police dog sniffs” violate our privacy rights under the Fourth Amendment to the Constitution. These two cases have not yet grabbed many headlines, but the court’s decisions could shape our rights to privacy in profound and surprising ways.

The Fourth Amendment protects the right of the people to be free from “unreasonable searches and seizures.” Ordinarily, unless the police trespass or otherwise intrude upon a reasonable expectation of privacy, they need not have probable cause or a warrant to justify their investigative activity. For decades now, the court has struggled with what it means for a person to have a “reasonable expectation of privacy” — especially when the police investigate with sense-enhancing means or technology.

One of the new cases asks the court to clarify how accurate a dog must be in terms of its past identification of contraband — for, as Justice David H. Souter once warned in dissent, “The infallible dog, however, is a creature of legal fiction.” ...

The second of the court’s new dog cases asks if the police may take a drug-sniffing dog to the front porch of a home to sniff for evidence of marijuana inside. The court has always accorded special privacy protection for people’s homes. In 2001, the court ruled, in an opinion written by Justice Antonin Scalia, that police officers violated a homeowner’s privacy when they parked across the street from a home and, without a warrant, used a thermal imaging device to scan the outside of the house for signs of unusual heat inside that might be caused by high-intensity lighting, which is often used to grow marijuana.

If the police can’t thermal-scan your home from the street, why let them dog-scan it from your front porch? 

The government argues that a dog is alerted only by illegal contraband, while a thermal imager is set off more generally by “innocent” and “guilty” heat of all kinds coming from a home — whether from grow lights or from, as Justice Scalia noted in the thermal imager case, “the lady of the house” as she “takes her daily sauna and bath.” 

But, arguably, this distinction is misplaced. If the court rules for the government in the home-sniff case, it is hard to see why the police could not station drug-sniffing dogs outside the entrances to every school, supermarket and movie theater as a routine form of drug interdiction. Dog sniffs would never involve a privacy intrusion and therefore would not trigger the requirement that the police obtain a warrant or have individual suspicion.

BTW, may Grits just say "bravo" at the excellent internal linking to primary sources, which we don't see enough of in the MSM, even in the NY Times. Or perhaps the kudos go to the good professor, but the links contain most of what you'll need to know about the two cases. Visit the SCOTUSBlog pages for Florida v. Harris and Florida v. Jardines to learn the rest.

See related recent Grits posts:

• SCOTUS to consider what training, credentials needed for drug-dog alert probable cause
• Poor training, low-quality certification and high error rates dog police units