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Drug-sniffing dogs: a Fourth Amendment sequel?

The Supreme Court spent little effort on a recent decision allowing police, who have stopped a car for a traffic violation, to walk a drug-detection dog around the vehicle to check for illegal narcotics. It took less than five full pages to decide the case of Illinois v. Caballes on January 24. But that 6-2 ruling raised deeper questions under the Fourth Amendment about using a drug-sniffing canine when the scene switched from a roadside traffic encounter to a similar search of a private home, from the outside. The Court is already showing some interest in that question – presumably because of a conflict in the lower courts.

A week after the Caballes decision, the state of Texas was asked to file a response to the petition in Smith v. Texas (04-874). In that case, and another arising out of the same canine search (Stauffer v. Texas, 04-825), the state had waived its right to oppose the petitions. The Court is expected to act on the Smith case sometime in March, after the state’s brief is in.

In the Caballes decision, Justice John Paul Stevens contrasted the sniff search of a car’s trunk with the use of a heat-sensing device to detect marijuana growing inside a home – the situation that the Court found a violation of the Fourth Amendment in the 2001 decision in Kyllo v. U.S. “Critical to that decision [in Kyllo},” Stevens wrote, “was the fact that the device was capable of detecting lawful activity…The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from [Caballes’] hopes or expectations concerning the nondetection of contraband in the trunk of his car.”

The new petitions in the Smith and Stauffer cases from Texas – filed before the Court decided the Caballes case – rely heavily upon the Kyllo decision, arguing that the sanctity of the home is entitled to greater protection against a sniffing dog being used by police to find out what is going on inside. A Texas Court of Appeals found the canine search in the Smith and Stauffer cases was not a search under the Fourth Amendment – a direct conflict with, among other rulings, a decision by the Nebraska Supreme Court in October 1999 in State v. Ortiz. That case involved a canine search outside an apartment door.

The new petitions in the Texas cases grew out of a use of a drug-detection dog at a private home in Houston on October 4, 2000. A local police officer recruited a sheriff’s deputy, who specialized as a narcotics dog handler, to take a dog named Rocky for a walk around the exterior of the home of David Gregory Smith. There was no warrant for that search. As Rocky sniffed at the door of a garage that was a part of the residence, the dog gave a positive alert that there were drugs inside. Based on that indication, police obtained a search warrant, and found some 660 grams of methamphetamine. The drugs were found in a rear corner bedroom, well away from the garage. Smith and Kristian Lehr Stauffer, who was in the home when the search was carried out, were charged with and convicted of possession of methamphetamine with intent to distribute. They petitioned the Supreme Court for review after the Texas Court of Criminal Appeals refused to hear their appeals.