November 1, 2012

Do drug-sniffing dogs pass smell test? Justices to decide

Justices hear arguments on the legality of searches by drug dogs and whether the results are reliable.

The Associated Press

WASHINGTON — Can you trust what a dog's nose knows? Police do, but the Supreme Court on Wednesday considered curbing the use of drug-sniffing dogs in investigations after complaints of illegal searches and insufficient proof of a dog's reliability.

Franky
click image to enlarge

A detection of drugs by the Miami-Dade police dog Franky, above, is at the center of a case before the U.S. Supreme Court on the legality of outside-the-home searches.

The Associated Press

U.S. willing to let college reopen health care law challenge

WASHINGTON - The Obama administration told the Supreme Court on Wednesday that it does not object to reopening a Christian college's challenge to President Obama's health care overhaul.

In court papers, the Justice Department said it does not oppose allowing a federal appeals court in Richmond, Va., to consider the claim by Liberty University in Lynchburg, Va., that the law violates the school's religious freedoms.

A federal district judge has already rejected Liberty's claims, and the 4th U.S. Circuit Court of Appeals ruled that the lawsuit was premature and never dealt with the substance of the school's arguments. The Supreme Court upheld the health care law in June in a ruling that also said the appeals court was wrong not to decide the issues.

The justices used lawsuits filed by 26 states and the National Federation of Independent Business to uphold the health care law by a 5-4 vote, then rejected all other pending appeals, including Liberty's.

The school made a new filing with the court over the summer to argue that its claims should be fully evaluated in light of the high court decision. If the justices agree, they probably would formally throw out the 4th Circuit's ruling and order it to take a new look at Liberty's case.

Liberty is challenging both the requirement that most individuals obtain health insurance or pay a penalty, and a separate provision requiring many employers to offer health insurance to their workers.

The appeals court would have the option of asking the government and the college for new legal briefs before rendering a decision.

Justices seemed concerned about allowing police to bring their narcotic-detecting dogs to sniff around the outside of homes without a warrant, and seemed willing to allow defense attorneys to question at trial how well drug dogs have been trained and how well they have been doing their job in the field.

"Dogs make mistakes. Dogs err," lawyer Glen P. Gifford told the justices. "Dogs get excited and will alert to things like tennis balls in trunks or animals, that sort of thing."

But Justice Department lawyer Joseph R. Palmore warned justices not to let the questioning of dog skills go too far, because they also are used to detect bombs, protect federal officials and in search and rescue operations. "I think it's critical ... that the courts not constitutionalize dog training methodologies or hold mini-trials with expert witnesses on what makes for a successful dog training program," he said.

"There are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy," Palmore noted. "So, in situation after situation, the government has in a sense put its money where its mouth is, and it believes at an institutional level that these dogs are quite reliable."

The arguments on Wednesday revolved around the work of Franky and Aldo, two drug-sniffing dogs used by police departments in Florida.

Franky's case arose from the December 2006 arrest of Joelis Jardines at a Miami-area house where 179 marijuana plants were confiscated. Miami-Dade police officers obtained a search warrant after Franky detected the odor of pot from outside the front door. The trial judge agreed with Jardines' attorney that the dog's sniff was an unconstitutional intrusion into the home and threw out the evidence.

A Florida appeals court reversed that ruling, but the state Supreme Court sided with the original judge.

The Florida Supreme Court also threw out work done by Aldo, a drug-sniffing dog used by the Liberty County sheriff. Aldo alerted his officer to the scent of drugs used to make methamphetamine inside a truck during a 2006 traffic stop, and Clayton Harris was arrested. But two months later, Harris was stopped again. Aldo again alerted his officer to the presence of drugs, but none were found.

The Florida Supreme Court justices ruled that saying a drug dog has been trained and certified to detect narcotics is not enough to establish the dog's reliability in court.

The state of Florida appealed both cases to the U.S. Supreme Court.

Harris' lawyer Gifford asked the court to uphold the ruling against Aldo and require police to provide proof that the dog is able to do its job correctly. "There is no canine exception to the totality of the circumstances test for probable cause to conduct a warrantless search," Gifford said. "If that is true, as it must be, any fact that bears on a dog's reliability as a detector of the presence of drugs comes within the purview of the courts."

Lawyer Gregory Garre, who represented the state of Florida in both cases, said they shouldn't have to prove what kind of training and classes Aldo had, "the same way that when an officer provides evidence for a search warrant, we don't demand the training of the officer, what schools he went to or what specific courses he had in probable cause."

(Continued on page 2)

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