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Supreme Court limits search using drug dogs

WASHINGTON -- The Supreme Court ruled yesterday that police cannot take drug-sniffing dogs onto a suspect's property to look for evidence without a search warrant, a decision that may limit how investigators use dogs' sensitive noses to search out drugs, explosives and other items hidden from human sight, sound and smell.

The high court split 5-4 in upholding the Florida Supreme Court's ruling throwing out evidence seized in the search of Joelis Jardines' Miami-area house. That search was based on an alert by Franky the drug dog from outside the closed front door.

Justice Antonin Scalia said a person has the Fourth Amendment right to be free of the government's gaze inside their home and in the area surrounding it, which is called the curtilage.

"The police cannot, without a warrant based on probable cause, hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the home," Scalia said for the majority. "And the officers here had all four of their feet and all four of their companion's, planted firmly on that curtilage -- the front porch is the classic example of an area intimately associated with the life of the home."

He was joined in his opinion by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Dissenting were Chief Justice John Roberts, Justice Stephen Breyer, Justice Anthony Kennedy and Justice Samuel Alito.

It's not trespassing when a mail carrier comes on a porch for a brief period, Alito said. And that includes "police officers who wish to gather evidence against an occupant."

Alito said the ruling stretches expectations of privacy too far.

It was not the dog that was the problem, Scalia said, "but the behavior that here involved use of the dog." "We think a typical person would find it 'a cause for great alarm' to find a stranger snooping about his front porch with or without a dog," Scalia said.

Miami-Dade police and federal DEA agents acted Dec. 5, 2006, on a tip of a possible marijuana growing operation. Det. Douglas Bartelt's dog Franky quickly detected the odor of pot and sat down as he was trained to do.

That sniff was used to get a search warrant. Jardines was arrested after officers found 179 live marijuana plants. His attorney challenged the search, claiming Franky's sniff outside the door was an unconstitutional law enforcement intrusion into the home.

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