Justices Decline To Rule on Limits for Drug Dogs

  Justices Decline To Rule on Limits for Drug Dogs

Posted by CN Staff on April 05, 2005 at 18:46:48 PT
By Linda Greenhouse 
Source: New York Times 

Washington, D.C. -- The Supreme Court in recent years has drawn constitutional rules for the use of newly popular law enforcement techniques. The police need a warrant before aiming a heat-detecting device at a private home in an effort to find out whether marijuana is growing inside under high-intensity lights. The police do not need a warrant before permitting a trained dog to sniff a car, or a piece of luggage at an airport, in order to detect drugs. Those precedents converged in a case from Texas that posed this question: Can the police bring a trained dog to stand outside a private home and sniff for drugs?
The lower courts have disagreed, and the Supreme Court decided on Monday to let the confusion linger. The justices did not take the case.The court offered no explanation for declining to hear an appeal from a Houston man, David G. Smith, whose supply of methamphetamine in his garage was detected by a trained dog. After the dog was walked up Mr. Smith's driveway and signaled the presence of drugs behind the lower corner of the garage door, the Harris County Sheriff's Department obtained a search warrant and found the drugs and other criminal evidence. A state appeals court rejected Mr. Smith's appeal, upholding his conviction and his sentence to 37 years in prison.The Texas Court of Appeals issued its ruling in February 2004. That was nearly a year before the Supreme Court, in a ruling in January, upheld the use of a trained dog to sniff a car that had been stopped for a non-drug-related traffic violation. But the Texas court did cite a 1983 Supreme Court decision, the first to address the use of drug-detecting dogs, that upheld the sniffing of luggage at an airport.The constitutional question in all such cases is whether the canine sniff is, under the circumstances, a search within the meaning of the Fourth Amendment; if so, it requires probable cause or a warrant. The court has never categorically held that a sniff is not a search, and although the justices on Monday made no law, the case itself offered a window into the growing use of trained dogs and some of the legal issues the practice raises.In its 1983 airport decision, United States v. Place, the court suggested that the sniff was not a search in that setting because it "discloses only the presence or absence of narcotics" without requiring that the suitcase be opened. In the decision two months ago, Illinois v. Caballes, the court said that a dog's sniff of an automobile that had been lawfully stopped for speeding did not "implicate legitimate privacy interests."In the appeal the court turned down on Monday, Smith v. Texas, No. 04-874, Mr. Smith argued that the most important precedent for understanding his case was one that did not involve dogs at all, but rather a thermal imaging device that the police use to detect distinctive patterns of heat produced by the indoor cultivation of marijuana.In a 2001 decision, Kyllo v. United States, the court held that the use of this device, when trained on a private home, was a search that required a warrant. In his majority opinion, Justice Antonin Scalia said that the heat patterns could also reveal other kinds of personal behavior behind a home's walls. Justice Scalia noted that the home was what the framers of the Fourth Amendment had in mind when they barred "unreasonable searches."In the appeal on Monday, Mr. Smith's lawyers told the court: "No distinction exists between a thermal-imaging device and drug-sniffing dog in that they are both sense-enhancing and permit information regarding the interior of a home be gathered which could not otherwise be obtained without physical intrusion into a constitutionally protected area."In urging the justices to reject the appeal, the Harris County district attorney, Charles A. Rosenthal Jr., argued that the thermal imaging case was off the point. "The use of a drug detection dog does not constitute the use of any technology, let alone advanced technology," he said.The district attorney's brief cited a variety of lower-court precedents that had upheld canine sniffs as not amounting to searches: in the common corridor of a hotel, outside an Amtrak sleeper compartment, outside an apartment door, at the exterior of a home. These activities were found not to "implicate Fourth Amendment concerns," he said, because "society clearly is not willing to recognize as reasonable or legitimate an expectation of privacy in the possession of narcotics."One decision from the federal appeals court in New York that reached the opposite conclusion in 1985 should be ignored as a precedent, he said, because that decision "is 20 years old, yet it stands alone" and has not been adopted by other courts.Complete Title: Justices Decline To Rule on Limits for Drug-Sniffing DogsSource: New York Times (NY)Author:  Linda GreenhousePublished: April 5, 2005Copyright: 2005 The New York Times Company Contact: letters Website: Related Articles: Lawmaker Wants To Keep Drug Dogs on a Leash Let The Dogs In? for Life in a Police State Uphold Use of Drug-Sniffing Dogs 

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Comment #2 posted by observer on April 06, 2005 at 09:21:08 PT
fascist dogs
Totalitarian, fascist regimes love to try to imtimidate a cowed population with dogs, don't they?Individual Heroism and Inventiveness.When it became evident that large numbers of Danish Jews were escaping to Sweden by boats, the Germans used police dogs to sniff out human cargo aboard the ships. To overcome this Danish scientist in Malmo concocted a powder made up of dried human blood and cocaine, which dusted on the decks of the ships, completely deadened the dogs' sense of smell. In addition, small amounts of the powder were placed in carefully folded handkerchiefs, which were distributed to the key Danish Seamen. When the Germans came aboard the ships with their dogs, the seamen pretending to blow their noses with their handkerchiefs, would let the powder fall to he decks in the vicinity of the dogs. The Germans never found out why their highly trained police dogs were completely ineffective.
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Comment #1 posted by FoM on April 05, 2005 at 19:46:39 PT

News About Texas MMJ Bill from
Medical Marijuana Bill In Legislature
April 5, 2005It's a subject that can be a political taboo. Using medical reasons as a legal defense for having marijuana got its first hearing in the Texas Legislative session.There was a House committee hearing on it Tuesday. Supporters say all they want is medical use of marijuana to be a valid defense in court if someone's arrested for possession.Steve "I went to sniper school in 1993, went to Ranger school in 1991"News 36 is hiding his identity, but around Steve's apartment in Austin you signs of high level discipline."I spent 11 years in the military travelling all over the world. I was a jump master, Ranger, sniper," "Steve" said.He also worked undercover narcotics. So it's ironic a man who has a marijuana eradication patch, would now own a bong.He says he uses pot because of cyclic vomiting syndrome that once dropped his weight to 98 pounds."Vomiting in cycles from 10, 15, to 20 times an hour, non stop for 13 days," "Steve" said, "Marijuana doesn't alleviate the symptoms or completely circumvent the problems that I have, but it gives me a sense of relief I can't find in any other way."At a committee hearing, there was a litany of testimony from people who've used marijuana to lessen pain and spasms or increase appetite from sickness.They want a law allowing medical use to be a court defense if someone's arrested with pot."It does not legalize anything. It creates an affirmative defense to let the jury decide if this is a legitimate medicinal use of medicinal marijuana," bill sponsor State Rep. Elliott Naishtat said.There are critics.Governor Rick Perry doesn't support the bill. His office says the bill would encourage illicit drug use, and the state needs to focus on curbing that."I'm not a criminal. I'm not. I'm somebody that wants to live," "Steve" said.Another critic of the bill is the conservative group Texas Eagle Forum. Their president said patients should be given an actual remedy for their condition and that lessening a potential penalty for pot possession is going in the wrong direction.The bill was left pending in the committee.
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