Calling Off the Dogs

The Supremes Preserve Your Privacy

The Court ruled 5-4 that it is unconstitutional to bring a drug dog along when officers lawfully approach the front door of your house

Written for this blog by “Mango Chutney”, a former commercial cannabis grower in California, who litigated similar case issues for six years.

Drowned out in the news crush about U.S. Supreme Court oral arguments on gay marriage last Tuesday, March 26th was the announcement of the Court’s decision in a cannabis search case, Florida v Jardines, which was argued last November.

It was a close case. The Court ruled 5-4 that it is unconstitutional to bring a drug dog along when officers lawfully approach the front door of your house. Had it gone the other way the police would be forever free to bring a drug-sniffing dog right to your front door with no suspicion or greater cause than a desire to check you out. They could even do random sweeps of whole neighborhoods, just as they do random sweeps of school hallways sniffing student lockers.

Somewhat surprisingly the majority was composed of two of the most conservative court justices, Antonin Scalia and Clarence Thomas. Scalia authored the opinion. They were joined by both of Obama’s appointees, Elena Kagan and Sonia Sotomayor, and Clinton’s first appointee, Ruth Bader Ginsburg.

Clinton’s second appointee, Stephen Breyer, joined with the other conservatives, as he often does in search and seizure questions, but it wasn’t enough for them to prevail. Writing the dissent for the Dark Side was Bush II appointee, Samuel Alito, who will be a threat for many years to come.

The case came out of Florida from the 2006 arrest of defendant Joelis Jardines, who was found with a 179-plant grow operation in his Miami area house. He was charged with growing more than 25 pounds of marijuana—which certainly included the full weight of all the wet and dry plant material in his house, perhaps including the root balls. Although the U.S. DEA participated in the raid, Jardines was not charged with a federal crime. The initial case was so small that they left it to the state for prosecution. Any amount of marijuana is a federal crime, but the usual start point for federal prosecutions is above 100 pounds.

Jardines’ case only reached the U.S. Supreme Court after going through all three levels of the Florida state court system. The trial court decided in his favor; the appeals court overturned the trial court, and finally the Florida Supreme Court overturned the appeals court in 2011.

This small case could have stopped there, but the state appealed the decision to the U.S. Supreme Court. The U.S. Supremes didn’t have to take the case. They receive some 7000 appeals a year, but in the current 2012-2013 term they have only accepted 75 cases. Supreme Court justices have their clerks sifting through those thousands of appeals looking for cases to make important new rulings and push the law in directions they want it to go. If four out of the nine justices vote to hear a case, then it’s on for a decision by the full court. Jardines’ little case cleared the nearly one-in-a-hundred odds of being accepted because four Supreme Court justices want to push harder for a police state, making all Americans liable for dog sniffs right outside their front doors.

It wasn’t just four Supreme Court justices who wanted to overturn the Florida Supreme Court ruling. “Amicus” briefs supporting the dog search were filed by numerous others who had no need to file, but volunteered themselves as interested parties. They were:

· Obama’s own U.S. Justice Department,

· Attorneys General for the of Texas, Alabama, Arizona, Colorado, Delaware, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Michigan, Nebraska, New Mexico, Tennessee, Utah, Vermont, Virginia, and the territory of Guam. (That includes seven medical marijuana states.)

· Wayne County, Michigan

· The National Police Canine Association and Police K-9 Magazine

They were opposed in amicus briefs filed by

· The National Association of Criminal Defense Lawyers

· The Cato Institute (a libertarian think tank)

· Fourth Amendment Scholars (law professors)

· The Rutherford Institute (an international civil liberties organization)

Only a few of the few cases the Supremes hear each year attract this kind of attention. It was a big deal. But because five of the nine Supremes ruled that bringing the drug dog created an unconstitutional search, all the evidence against Jardines was suppressed, he will remain free, and you won’t see a police dog at your door sniffing for evidence.

(End of Part 1)

Mango Chutney will entertain any questions you might have about this case, or general constitutional privacy issues keeping unwanted visitors away from your home. Send them as comments to this blog.

See Also: HuffPost VIDEO Drug Dog’s Sniff Is An Unconstitutional Search, Rules U.S. Supreme Court


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