By Jonathan Stempel
(Reuters) - The U.S. Supreme Court on Tuesday limited the ability of police to use a trained dog to sniff around the outside of a home for illegal drugs that might be inside.
By a 5-4 vote, the court said the use by law enforcement authorities of trained police dogs to investigate a home and its immediate surroundings was a "search" within the meaning of the Fourth Amendment of the U.S. Constitution, and required a warrant.
"A police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do," Justice Antonin Scalia wrote for the majority.
"But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else," he added. "There is no customary invitation to do that."
For purposes of the Fourth Amendment, Scalia said, "the home is first among equals."
The decision upheld a 2011 ruling by the Florida Supreme Court suppressing evidence uncovered at Joelis Jardines' home with the help of Franky, a chocolate Labrador retriever with a strong record of sniffing out drug stashes.
Howard Blumberg, a public defender who argued Jardines' appeal, said he was pleased with the decision.
"It's a very important decision for all citizens, because it helps ensure their right of privacy in the places where they live," he said in a phone interview.
TWO DOG SNIFF CASES
Franky's handler, Detective Douglas Bartelt, had let the dog smell near the base of the front door of the home near Miami after receiving an anonymous tip about marijuana growing inside.
Only after the dog sat down, signaling an "alert" that something was amiss, did the police obtain a warrant to search inside.
The tip proved accurate and more than 25 pounds (11.3 kilograms) of marijuana were found inside, leading to Jardines' arrest.
Blumberg said Jardines is now in a Florida state prison on unrelated charges, but that Tuesday's decision ends the case stemming from the dog's search.
The decision is the court's second this term addressing whether law enforcement complied with the Fourth Amendment in obtaining drug evidence based on a sniffer dog's "alert."
On February 19, in another Florida case, the court unanimously allowed a search of Clayton Harris' pickup truck, saying the handler of a dog that signaled the presence of drug ingredients inside could reasonably believe that the dog was reliable.
A spokeswoman for Florida Attorney General Pam Bondi said her office is disappointed with the Jardines decision, but that the Harris decision allows police in other cases to rely on dogs to alert them to the presence of illegal drugs and to arrest people who possess them.
IDEOLOGICAL DIVIDE BREACHED
Tuesday's vote did not follow the Supreme Court's usual ideological divide.
Joining Scalia's opinion were Justice Clarence Thomas, who is one of the more conservative justices, and the more liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
In a concurring opinion, Kagan, joined by Ginsburg and Sotomayor, wrote that the search violated Jardines' reasonable expectation of privacy, an issue Scalia did not reach.
The search dog Franky "was not your neighbor's pet," Kagan wrote.
Justice Samuel Alito dissented, joined by Chief Justice John Roberts, Justice Anthony Kennedy and Justice Stephen Breyer.
The latter is part of the court's more liberal wing, but sometimes votes more conservatively in criminal cases.
Alito noted that law-enforcement authorities have employed dogs' acute sense of smell for centuries and the use of Franky was not a trespass and did not violate Jardines' privacy rights.
"A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public," Alito wrote. "A reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human."
Scalia said using the dog was no different from using thermal imaging technology from afar to peer inside homes without a warrant, which the court voided in a 2001 decision he also wrote.
"The antiquity of the tools that they bring along is irrelevant," Scalia wrote, referring to police.
Scalia also wrote a 2012 decision that limited the police's use of GPS vehicle-tracking devices.
The case is Florida v. Jardines, U.S. Supreme Court, No. 11-564.
(Reporting by Jonathan Stempel in New York; Editing by Christopher Wilson)