[There have been some interesting topics flitting about the blogosphere in the past weeks but I’ve been too busy with other stuff to comment. To eliminate some of the backlog, I’ve decided to try and do a few quick takes. First up: Franky the chocolate lab.]
There is a Florida legal case winding its way through the court system that pits the skills of a drug sniffing police dog named Franky against the Fourth Amendment rights of alleged marijuana grower Joelis Jardines. Back in 2006, Franky’s keen nose detected the smell of $700,000 in marijuana plants wafting out of a Dade County home while he and his handlers were standing on the front porch. Franky signaled the police who subsequently obtained a warrant, searched the home, found the pot, and arrested Jardines. The question is does a dog sniffing the air outside a privately-owned house represent an illegal search?
The variables make it interesting. Use of a thermal imaging device to look into the interior of someone’s home constitutes a search and is not legal without a warrant. However, the use of dogs in airports and other public places is allowed under the law because people in those locations do not necessarily have an expectation of privacy. (This is similar to recent arguments favoring the warrantless use of a GPS tracking device on a private vehicle.) Complicating matters is the fact that a dog is trained to detect only one thing (drugs) while a mechanical device like thermal imaging might show other things (like you sitting naked on the toilet).
All of this becomes more interesting if you start to think about the trends in miniaturization and computing power that could be applied to today’s surveillance drones. How soon before these things migrate from the skies of Afghanistan to the air space above your own neighborhood?
Other questions that spring to mind:
- Does it matter that Franky’s talent is a natural one? Would the case be any different if this involved a drug sniffing machine?
- What would happen if the police themselves were augmented in some way (genetically? cybernetically?) that would allow them to detect drugs without the aid of anything else? Will robocops get more legal leeway when it comes to searches just because of their “innate” talents?
- How fast will police be able to get search warrants in the future? Will judges allow instantaneous decisions on these matters?
- Does the fact that people are willing to provide detailed personal information to their social networks change our society’s expectations of privacy?
The U.S. Supreme Court will hear the case later in the year. Given the pace of development of modern technology, constitutional scholars could be reading about the exploits of Franky the dog for years to come.
- October 31, 2012 – Franky’s case goes before the Supreme Court today! (link: http://www.csmonitor.com/USA/Justice/2012/1030/Supreme-Court-to-consider-how-and-when-police-can-use-drug-sniffing-dogs)
- November 7, 2012 – Transcript of the hearing: http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-564.pdf
- February 20, 2013 – The U.S. Supreme Court unanimously ruled that “a court can presume” an alert by a drug-sniffing dog provides probable cause for a search “if a bona fide organization has certified a dog after testing his reliability in a controlled setting” or “if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.” (Link: http://reason.com/blog/2013/02/19/scotus-approves-search-warrants-issued-b) No ruling on Florida v. Jardines yet.
- March 29, 2013 – The Supreme Court announced their decision on this case on Tuesday (3/26/2013) and Jardines won (5-4) because of the special expectations of privacy the Constitution provides for someone’s home. According to Justice Scalia, the Fourth Amendment’s special protection against police intrusion into the home extends to the porch. (In legalese, it counts as “curtilage,” or the area immediately surrounding a house.) Since the police had no search warrant to be on Jardines’ porch, there was no valid search. Interestingly, a similar case suggests that this privacy protection does not necessarily extend to a car. (Link: http://slate.com/articles/news_and_politics/jurisprudence/2013/03/supreme_court_police_dogs_can_t_sniff_for_drugs_on_your_porch.html)