WASHINGTON – The U.S. Supreme Court on Wednesday appeared troubled by police use of drug sniffing dogs that point their noses too close to the front doors of homes.

The justices heard back-to-back arguments in two Florida cases, raising Fourth Amendment issues about trained narcotics-detection dogs. The state of Florida is asking the Court two relatively straightforward questions: Is a dog sniff at the front door of a suspected marijuana grow house a search that requires probable cause, and is a dog alert to possible drugs sufficient to establish probable cause to search a vehicle? Law enforcement lost both cases in the Florida Supreme Court.

Read the transcripts  in Florida v. Jardines and Florida v. Harris.

Gregory Garre, head of the Supreme Court and appellate practice at Latham & Watkins, argued both cases on behalf of the state. In Florida v. Jardines, the house case, he told the justices that in three of their prior cases, they had held that a dog sniff is unique for both the manner in which information is obtained and the nature of the information revealed.

Read briefs in Jardines.

 ”As to the latter point, this Court has emphasized that a drug detection dog reveals only the presence of contraband, and that no one has a legitimate expectation of privacy in that,” he said.

Garre immediately ran into a skeptical Justice Anthony Kennedy who said, “That just can’t be a proposition that we can accept across the board. Nobody under that view has an interest in contraband in their home. The question is, can you find out the contraband? It’s just a circular argument.”

Justice Ruth Bader Ginsburg asked if police could go into a drug dealing neighborhood and go down the streets with their dogs sniffing in front of every door, or go into an apartment building.

Garre responded, “They could do that just like the police could go door to door and to knock on the doors and hope that they will find out evidence of wrongdoing that way.” However, he sought to reassure her that her scenario was unlikely because of the “restraint on resources” and “check on community hostility.”

Justice Antonin Scalia, who wrote a 2001 decision finding an unconstitutional search by police using a thermal imaging device aimed at a home to detect heat lamps for marijuana plants, told Garre that police may use binoculars to look into a house if the blinds are open, but if they can’t see clearly enough from a distance, they cannot go into the house’s curtilage (area immediately surrounding it) and use the binoculars from that vantage point.

“Why isn’t it the same thing with the dog?” he asked Garre. “This dog was brought right up to the door of the house.”

Garre acknowledged the curtilage rule, but he told Scalia and Justices Ruth Bader Ginsburg and Sonia Sotomayor, who also pursued Scalia’s question, that it was “well settled” that police can come up to a home’s front door and knock and ask questions, or even smell marijuana at the door.

“I think if it wasn’t a search for the police officer to walk up there and sniff and report smelling live marijuana, then it wasn’t a search when Franky [the dog] walked up there and alerted to the presence of an illegal narcotic,” said Garre.

Ginsburg renewed her question about wider use of drug sniffing dogs in neighborhoods and apartment buildings when Assistant to the Solicitor General Nicole Saharsky spoke in support of Florida. Saharsky agreed with Garre that it would not violate the Fourth Amendment, but, she added, “That’s not happening.” All the dog sniff allows, she explained, is for police to go to a neutral magistrate and establish probable cause to get a warrant.

Assistant Public Defender Howard Blumberg of Miami told the justices that using a drug-sniffing dog at the front of a house is a Fourth Amendment search “because that is a physical trespass upon the constitutionally protected area of the curtilage of the home.”

In the second case, Florida v. Harris, the justices struggled to define, as the state supreme court did, the requirements that would make a dog alert reliable as probable cause to search a vehicle.

Read brief in Harris.

Garre told the justices that the state high court had erected “an extraordinary set of evidentiary requirements that, in effect, puts the dog on trial in any suppression hearing in which defendant chooses to challenge the reliability of the dog.”

Ginsburg said she saw “nothing improper” about the lower court requiring a showing that the training program for the dog is reputable and that the dog’s handler also has had training.

Garre did not disagree, but he said the Fourth Amendment does not impose an annual certification requirement. He said the amendment only requires a showing that the dog has successfully completed proficiency training, which is done by the police on a regular basis.

“No certification, no questioning of the handler and the handler’s training?” asked Sotomayor. “The judge can’t do any of that and shouldn’t do any of that, is what you’re saying.” She also mentioned being “deeply troubled” by a study showing that one dog alerted correctly only 12 percent of the time.

Assistant to the Solicitor General Joseph Palmore, supporting Florida, told the justices that is was ” critical, as Mr. Garre pointed out, that the courts not constitutionalize dog training methodologies or hold mini trials with expert witnesses on what makes for a successful dog training program. Because, as Mr. Garre said, the Government has critical interests, life and death interests, that it stakes on the reliability of these dogs.”

However, Assistant Public Defender Glen Gifford of Tallahassee said there is no “canine exception” to the totality of the circumstances test for probable cause to conduct a search. “If that is true, as it must be, any fact that bears on a dog’s reliability as a detector of the presence of drugs comes within the purview of the courts. This can encompass evidence of initial training, certification, maintenance training and performance in the field. “

@|Marcia Coyle can be contacted at mcoyle@alm.com.