Is this dog violating the Fourth Amendment? (photo used under Creative Commons by State Farm)
By Robert Bradley
Amidst the media frenzy concerning the oral arguments on Prop 8, a Supreme Court decision made in the morning before the start of the Prop 8 arguments received little press attention.
The question raised in the case was whether a drug-sniffing dog going alert on the front porch of a home constituted a search within the scope of the Fourth Amendment? The Court ruled yes, and stated that the actions by the drug-sniffing dog were a trespass of private property, and thus violated the Fourth Amendment.
There are a number of important points to consider in regard to the Court’s decision.
- Justices Scalia and Thomas, two well-known conservatives on the Court, ruled that Fourth Amendment protection could be extended to cover an alert by a drug-sniffing dog on a front porch. The two justices went against the interests of law enforcement by ruling in the favor of the suppression of seized evidence. So much for the commonly shared conception of a conservative justice.
-The Court’s decision in the case was 5-4. A single change of mind by a justice of the majority would have been sufficient to allow police to bring a drug-sniffing dog on a homeowner’s property without a warrant, and if the dog alerted, that would be enough for the police to acquire a warrant and search the home.
- In regard to Fourth Amendment protection, a substantial difference exists between a home and a car. In another decision made by the Court about a month ago, the justices ruled unanimously that an alert by a drug-sniffing dog established probable cause for a search of a car that had been stopped for a routine traffic violation. Upon the search, the officer found ingredients used to make methamphetamine. The Court ruled that the evidence was admissible in a criminal trial.
- A majority of justices treat drug-sniffing dogs as infallible, and believe that when they go alert illegal substances will always be found. If illegal substances are always found, then the Fourth Amendment does not apply because no expectation of privacy exists. This infallibility belief continues despite the dog in the case involving a car going alert at the first stop and nothing was found that the dog was trained to go alert on. Then at the second stop the same dog went alert and nothing was found that was illegal. But the Court still held that the seizure was permissible.
- Drug-sniffing dogs are becoming an increasingly important part of the police effort to deal with illegal drugs. The federal Drug Enforcement Agency and the U.S. Customs Service, and a majority of the states, are expanding their use of trained dogs to confiscate a greater quantity of drugs.
So it is quite likely that there will be more Court rulings on the legality of searches by drug-sniffing dogs, and that those rulings will become an important part of the Court’s jurisprudence on the Fourth Amendment.
Bob Bradley is solely responsible for the opinions expressed above. These opinions do not necessarily reflect those of WJBC, Radio Bloomington or Cumulus Media staff or management.
Bradley was a full-time professor in the Department of Politics and Government at Illinois State University where he has been since 1982. He has received several recognitions including: Carnegie Scholar for Civic Engagement, Constitution Trail Friend of the Year, and Faculty Star distinction by ISU Athletics. He dearly loves his wife, Reenie, of more than 25 years, and his daughter, Erin. He is an avid reader, devout sports enthusiast, gardener, golfer, and bird watcher.