Supreme Court Justices wary of use of drug-sniffing dogs outside homes

[Jenna]

It is "not implied consent for the policeman to come up with the dog," said Justice Ruth Bader Ginsburg.Scalia agreed. "When the officer's going there to conduct a search, it's not permitted," he said.Garre was defending a Miami police officer who took his drug dog, Franky, to the front of a house searching for evidence of marijuana. When Franky gave his signal near the front door, the officer obtained a search warrant and found marijuana growing inside.The Supreme Court took up the case to decide whether such an action violates the 4th Amendment's ban on unreasonable searches."In my neighborhood, neighbors can bring their dog up on the leash when they knock on your front door, and I think that's true in most neighborhoods in America," Garre said. "Homeowners that don't like dogs and want them off their property [can] put a fence around it to say, 'No dogs allowed.'"
"So now we tell all the drug dealers: Put up a sign that says 'No dogs'?" asked Justice Sonia Sotomayor.Justice Stephen G. Breyer said a homeowner "would resent someone coming up with a large animal sitting on a front step … and sniffing for five to 15 minutes."
Ginsburg said that if the court were to approve this law enforcement tactic, police could "just go down the street, have the dog sniff in front of every door, or go into an apartment building."

Supreme Court skeptical of police drug dogs on porches - latimes.com

[Jks9199]

I haven't read the full facts of the case -- but this did strike me as a bit more than walking a dog around a car. Lots of rulings have reduced the expectation of privacy in vehicles, and others have made it clear that homes are one of the areas of the highest privacy protection. I think it might be different if the officer was walking the dog through an apartment building's shared hallways, or if the dog alerts more-or-less spontaneously and essentially guides the officer in. I think it would one thing if a K9 handler responds to a house for a particular reason, say backing up another officer, or doing a canvass, and happens to have his dog with him -- then we're in essentially a plain view/plain smell situation. But in this case, it seems as if the officer was looking for evidence of marijuana use or possession; he was using the dog to probe into an area he can't observe himself. There are limits to whether we can walk up and peek in a window; this is much the same thing, it seems to me. I won't be surprised if the court rules that you must find justification to enter into the curtilage of a residence, whether it's to peek in a window or let a dog sniff the air coming out.