By Adam Liptak
Published in The New York Times on March 26, 2013
The case concerned Franky, a chocolate Labrador retriever who detected the smell of marijuana outside a Florida house used by Joelis Jardines. Based on Franky’s signal, the police obtained a warrant to search the house, and they found a marijuana-growing operation inside.
Mr. Jardines moved to suppress the evidence, saying that using Franky to sniff around his residence was an unreasonable search barred by the Fourth Amendment. The Florida Supreme Court agreed, and so did a majority of the United States Supreme Court.
“To find a visitor knocking on the door is routine (even if sometimes unwelcome),” Justice Scalia wrote. “To spot that same visitor exploring the front porch with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.”
Justice Scalia grounded his opinion in property rights. In a concurrence, Justice Kagan, joined by Justices Ginsburg and Sotomayor, said she would also have relied on a second rationale. “I would just as happily have decided it,” she said of the case, “by looking to Jardines’s privacy interests.” In dissent, the Justices said neither rationale was sufficient to convert a visit by a man and a dog into a search.
“A reasonable person understands that odors emanating from a house may be detected from locations that are open to the public,” Justice Alito wrote, “and a reasonable person will not count on the strength of those odors remaining within the range that, while detectable by a dog, cannot be smelled by a human.”