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Release the Hounds

By Randall Grantham Community Columnist April 23, 2013

Run fast for your mother, run fast for your father. Run for your children, for your sisters and brothers Leave all your love and your longing behind. You can't carry it with you if you want to survive

Dog Days Are Over - Florence + The Machine

You may not know it, but Florida is Ground Zero in the War on Drugs "Dog Offensive". The front lines of law enforcement and the freedom-loving-lefties of the ACLU duking it out over how far cops can ride the puppy into our homes and rights.

A couple of Florida cases have made it to the USSCt recently, allowing the high judges to weigh in on the validity of, and protections against, the use of dogs as enhanced drug-sniffer machines in our homes, cars and private areas. (Down boy!)

We all know that dogs have much more sensitive noses than us and can smell things that we don't, in levels that we can't detect, from areas too far away from us in our normal course of business.  But, despite my wife's best efforts, animals still cannot speak English, or Spanish, or Latin. They seem like they can communicate with us in their own ways, but can you ever be sure? Is that dog wagging his tail because he's glad to see me, or because he's looking forward to biting me when I come into his yard? Is he just "glad to see me" or is he humping my leg for some other reason?

Animals, in general, and dogs, in specific, can be hard to read. They can also be misread, intentionally, or purposefully. Is that dog sitting down because he's tired, because his trainer subconsciously gave him signals to do so , or because he smells drugs where he's standing? You can never know and his trainer and handler can be right, wrong or deceitful and even have ulterior motives in his/her read of the signal. That brings me to the decisions recently handed down by The Supremes.

Both were from Florida, and though I disagree with the first, it may have been integral and necessary to the second, and potentially more important, one.

In the first, the citizen accused challenged the search based on a dog sniff of his car under rather unusual circumstances. He had been stopped and the drug dog had been walked around his car, and "alerted" to portions of the vehicle. The pup had been trained to recognize the odors of marijuana, cocaine and some other drugs, but none of them were found in the car. Instead the cops found precursor components of methamphetamine. Things like ephedrine, a component of (now) prescription and limited supply OTC cold medications.

The dog was not trained to find those compounds.

Then the same guy was stopped again by the cops and the same dog sniffed up his car again, alerting again to the vehicle. This time nothing was found. It made him, his lawyer, and the Florida Supreme Court wonder. The Florida high court held that, without substantial documentation and verification-testing, the dog sniff was not enough for a search of the vehicle without a warrant.

Overruling our high court, the USSCt held that the sniff was up to snuff. The fact that the dog was "trained" for this stuff was good enough, even though both of the sniff alerts were wrong.

In the second case, the cops had a tip that Jose was growing pot in his house. They got their dog out and went over to Jose's house. They walked up to the front door, where, if they, themselves, had smelled growing marijuana, they could have been able to get a warrant, but, because of the sniff-deterrent actions of the home-owner, only Fido was able to sniff out the smell of sanitized sativa.

Once he alerted to the doorway, the cops went and got a warrant and searched Jose's house, finding his stash of growing smoke. Our Florida Supreme Court held that the use of the dog, on the front porch of the house, was a search and the cops needed to have a warrant to do such a thing. This was a bit of a stretch, as the USSCt had previously held that a dog sniff was not a search, because the dog would only alert on illegal drugs and the person had no expectation of privacy if they held such drugs and that makes no sense because you would expect privacy if you've hidden illegal stuff anywhere, but whatever.

So, what did our highest high court do?

They cited the argument used in the previous case, holding that the use of this recognized animal-equivalent of an electronic scientific super-sniffer at the threshold of your house IS a search. But they based it on a trespass theory.

You see, you implicitly consent to people walking up to your front door to knock on it, whether they're friends, or Girl Scouts selling cookies, or there to convert you to Mormonism. But you do not give an implied consent to them bringing a super-sniffer up to your doorstep, whether it be animal or machine. Fifi from next door, maybe. Adolf, the German Shepard K9 police dog? No!

Therefore, it's like the cops bringing an X-Ray machine to your house, but they're trespassing when they do that and that's illegal without a warrant.

So, what do we learn from these decisions?

Apparently, dogs are so accurate, they're right even when they're wrong. And, because they are so accurate, you can't walk up on somebody's front step with one. But if the guy is stupid enough to leave the house, he's yours. Even if he doesn't have any of what the dog is trained to detect.

Are we all clear on that?

(Randall C. Grantham is a fifth generation Floridian and lifelong resident who practices law from his offices on Dale Mabry Highway in Lutz . He can be reached at Copyright 2013 RCG)