Howard K. Blumberg, who is arguing for Jardines and against Franky, does his best to keep the justices focused on the sacrosanct nature of privacy in the home. Scalia goes Rear Window on Blumberg, conjuring up a murderer who leaves the body inside his house and forgets to pull down the blinds. “The policeman at a great distance has a telescope and he looks through the blinds and he sees the corpse,” he says. “Can the police go into the home?” Blumberg says yes, because the body was knowingly exposed, and Scalia says no, the murderer was just careless. From here they move to the mothballs that Joelis Jardines left outside his door, ostensibly to mask the smell of the marijuana he was growing inside. Roberts picks up the thread: “It seems to me that you may have an expectation of privacy in the marijuana plants, but you don’t have an expectation of privacy in the odor, because you’re emitting it out, out into the world.” Roberts, unlike Scalia, doesn’t seem to care about curtilage. Neither does Justice Samuel Alito. “You know, we’ve had hundreds of trespass cases in this country and in England,” he says. “Do you have a single case holding that it is a trespass for a person with a dog to walk up to the front door of a house?”
Blumberg doesn’t have such a case. But he does refute Saharsky’s assertion that Jardines conceded that the dog was sitting lawfully at his front door. He says that the cops can come up to the door, and they can take a sniff with their own noses. But a dog and its superior nose cannot.
After more wrangling, Gregory Garre comes back to the podium for the second case of the morning. This time, the Florida police deployed a dog named Aldo to sniff the truck of Clayton Harris after he was pulled over for driving with an expired license plate and started shaking and breathing fast. Harris challenged Aldo’s detection of methamphetamine residue on his truck’s door handle and won at the Florida Supreme Court. “Are you for or against the dog this time?” Scalia asks Garre, who assures him that he is still on Team Dog. There’s no curtilage and no privacy of the home at issue for Harris. Instead, the problem for Garre is that Aldo’s certification expired 16 months before his handler sicced him and his nose on Harris. If dogs don’t have to carry proper papers to do detection work, can’t any old mutt show up for the job?
Garre says no, “the most important thing is successful completion of proficiency testing.” Aldo passed once upon a time and that’s good enough. Sotomayor and Ginsburg don’t think so, but this time Scalia tries to bail Garre out. “You know, I suppose that if the reasonableness of a search depended upon some evidence given by a medical doctor, the Court would not go back and examine how well that doctor was trained at Harvard Medical School, and, you know, what classes he took and so forth,” he wagers.
Actually, that is exactly what Ginsburg wants to examine. She asks how the state can establish that a dog is reliable in detecting drugs without showing that it, together with its handler, had current narcotics-detection certification. Sotomayor brings up research that makes Aldo’s reliability seem downright suspect: “The studies presented to the Court, particularly the Australian one, where, under a controlled setting, one dog alerted correctly only 12 percent of the time.” What about the dogs that frequently blow it and what about dogs that get old? Garre basically says that if the police keep the dogs in service, courts should defer to their judgment. In general, the reason dogs are being used “is because the people who work with them know that they are reliable.”
Hmmm, sounds suspect. Kagan asks about cueing—the ways in which handlers tip off dogs about their own suspicions. She’s not suggesting the police do this on purpose, just wondering if “there are different ways of training that make that less or more of a problem.” Garre says that a defense lawyer can ask about cueing at trial, and, mercifully, he gets to sit down.
For the Obama administration, Joseph R. Palmore emphasizes that Aldo “performed perfectly in a controlled setting” two days before sniffing the meth residue on the door handle of Harris’ truck. The Florida Supreme Court was wrong to demand any more evidence of the dog’s reliability, Palmore argues. He says that in 30 or 40 years of rulings on dog sniffing, no other appeals courts “have imposed these kinds of requirements on law enforcement.”
Palmore also mentions that “there are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy.” This has nothing to do with sniffing for drugs, I hope. But it does remind us who our best friends are. I bet Aldo and Franky will still work hard, even if the Supreme Court makes their handlers get a warrant.