In this day of information, acceleration and subsequent overload, it's comforting to learn that the latest technology for sniffing out drugs is, well, a dog's nose.
So, how did it come to be that the canine olfactory system is the latest and greatest technology for locating drugs? The Jan. 4 Press-Republican had an article entitled, "Supreme Court ponders drug dog's sniff" which, if you missed or cannot recall the details, let me summarize:
On an anonymous tip and without a search warrant, the Miami-Dade Police Department had its chocolate Labrador retriever, Franky, sniff just outside the house of Joelis Jardines to detect an illegal marijuana operation. After Franky had signaled that he sensed drugs inside the house, the police used that evidence to get a search warrant from a judge and confiscated 179 plants from the house with an estimated street value of more than $700,000. Jardines pleaded not guilty, and his attorney challenged the search, claiming Franky's sniff outside the front door was an unconstitutional law-enforcement intrusion into his home, which is protected by the Constitution.
The Florida Supreme Court ruled that the arrest of Jardines violated the Fourth Amendment protection against "unreasonable search and seizures" and has been challenged by the state attorney general of Florida. The U.S. Supreme Court will decide this issue this year.
This new twist tests the Fourth Amendment once again. Is it a violation of our constitutional rights for a police dog to sniff outside our house for the presence of drugs inside? Before you answer that question, let's review some of the history of some prominent Fourth Amendment Supreme Court cases involving technology.
In a previous column celebrating Constitution Day, I described two cases that dealt with this issue: Olmstead vs. United States in 1928, in which a bootlegger's phone was tapped and the court ruled for the U.S. government, although Judge Brandeis, in a dissenting opinion, argued that the Fourth Amendment's protection should extend to electronic communications. He pointed out that when a phone is tapped, the control of personal information at both ends of the connection is compromised — not just the suspect's privacy. In this fashion, "the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him."
Brandeis's view was upheld, and Olmstead was overturned in 1967 (Katz vs. United States), in which a bookie was apprehended placing illegal bets in a bugged phone booth. Katz won, and Judge Potter Stewart summarized the court's decision when he wrote, "The Fourth Amendment protects people, not places."
It appears that the Jardines/dog-sniffing case will be settled in Jardines's favor also, especially in light of the Supreme Court's recent decision on Jan. 23, 2012, (United States vs. Jones), where the court ruled that police violated the constitutional rights of Jones when, as part of a drug operation, they secretly attached a GPS device to his SUV without a warrant. The majority of the justices ruled that placing the GPS device on Jones's vehicle for the purpose of tracking his movements constituted a search of his property and therefore required a warrant. Thus, the ruling was about protecting citizens' property rights and not their privacy.
The court purposely deferred ruling on whether technology like surveillance cameras or cellphones, which can track users, is a protected right of privacy under the Fourth Amendment. However, the worrisome issue seems to be how technology manages to worm its way into our private lives. In fact, Chief Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the "contemporary reasonable expectation of privacy."
If you're curious about the fate of Mr. Jardines, lower courts can re-prosecute but cannot use the evidence gathered from the illegal intrusion into his home. It would have been more thoughtful for the cops to have secured a search warrant before they utilized the services of their drug-sniffing dog, Franky. What Franky thinks about all this has not been disclosed.
Dr. Stewart A. Denenberg is an Emeritus Professor of Computer Science at Plattsburgh State, retiring recently after 30 years at the institution. Prior to that he worked as a technical writer, programmer and consultant to the U.S. Navy and private Industry. Please send comments and suggestions to his blog at http://tec-soc.blogspot.com where there is additional text and links. He can also be reached at denenbsa@gmail.com.
