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Feb 1, 2011
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WASHINGTON — An anonymous tipster reports that you're growing marijuana in your home. Police bring a drug-sniffing dog to your doorstep with no other evidence and without first obtaining a warrant. Has your privacy been invaded?
The U.S. Supreme Court will decide whether the dog sniff is an illegal search, hearing the case of a Miami man who was arrested after a dog alerted to the smell of marijuana from outside his home.
The case is expected to provide a pivotal decision on the definition of privacy.
It could clear the way for police to more routinely bring drug dogs to a home with no other evidence of a crime. Or, law enforcement officials say, it could stifle the use of an important tool in crime fighting.
"This is a genuinely important question for the court to address," said Anita L. Allen, a professor of law and philosophy at the University of Pennsylvania and an expert on privacy. "In our homes, our expectations of privacy are the strongest."
While the defendant, Joelis Jardines, was found to have 179 pot plants growing inside his home at the time of the 2006 search, his guilt or innocence is not really the point.
"Most people would be troubled by the thought that police, based on nothing, could come to the front of your door with a drug-sniffing dog," said Howard K. Blumberg, the public defender who will argue before the court that the search was unconstitutional. "That's why (the decision is) important to basically anybody."
But Jenn Meale, a spokeswoman for the Florida attorney general, said if the justices deem the doorstep dog sniff an illegal search, it will severely limit the ability of police to do their job.
"Law enforcement is significantly hampered if required to develop probable cause without the assistance of drug-sniffing dogs," she said.
The Supreme Court has a mixed record when it comes to search cases. It has permitted dog sniffs at airports and traffic stops. Because the dogs are trained only to find contraband, the court has said their use is appropriately limited. It also upheld a search of a citizen's property using a plane to photograph it after receiving a tip that he was growing marijuana plants in his yard.
But the court struck down the use of thermal imaging from outside a home without a warrant, deeming the technology too intrusive and a violation of the Fourth Amendment protection against unreasonable searches and seizures. While the technology can detect heat from grow lamps, it also can detect a resident taking a bath.
The court has agreed to hear another search case this term, the Jones case, which will decide whether it's permissible for law enforcement to place a GPS tracking device on someone's car without a warrant and track their motions for weeks. The fact that the high court has decided this term to take two search cases indicates to some experts that the court might be reconsidering its views on permissible searches.
During oral arguments in the Jones case, even some conservative justices, including Chief Justice John Roberts, seemed to have some discomfort with the idea of police being able to attach a tracking device to one's car.
"We may be seeing a shift in the (views) of justices in searches and seizures," said Christopher Slobogin, a legal expert and criminal law professor at Vanderbilt University. "If they decide Jones and this case against the government, it will mark a sea change in Fourth Amendment law."
Some experts see this case as closer to previous drug-sniffing dog decisions, in which the court has said a sniff is not a search. Florida's 3rd District Court of Appeal, which ruled the sniff constitutional, found that a dog's nose is not technology, as in the thermal imaging case, and noted that the dog and officer "were lawfully present at the defendant's front door" - just as a salesman would be.
But other experts believe the fact that the sniff test was conducted at a home means the court might apply a higher standard of privacy.
In the Jardines case, along with two detectives and the dog, the operation included members of the Miami-Dade Police Department, who established a perimeter around the residence, and federal drug enforcement agents . The sniff test and subsequent search of the home lasted several hours.
That dramatic scene outside the home is part of what caused the state Supreme Court to strike down the search.

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