By McClatchy Newspapers

Published: Wednesday, October 31, 2012, 7:24 p.m.
Updated: Wednesday, October 31, 2012

WASHINGTON — Supreme Court justices appeared ready on Wednesday to adjust the legal leash on drug-sniffing dogs in two high-profile cases arising out of Florida.

With a battery of pointed questions, justices voiced skepticism about a Florida Supreme Court ruling that imposed strict criteria for determining when a dog is qualified to help make a drug bust. At the same time, court conservatives joined liberals in suggesting that a canine sniffing at the front door of a suspected drug house may be a search that triggers constitutional protections.

“It seems to me crucial that this officer went onto the portion of the house as to which there is privacy, and used a means of discerning what was in that house that should not have been available,” Justice Antonin Scalia said at one point.

The two cases heard separately on Wednesday morning will help shape law enforcement agencies' growing canine dependency. Twenty-four states — including Pennsylvania, Texas, Washington and Idaho — have sided with Florida law enforcement officials.

While tracking questions can lead court observers astray, a majority of the justices who spoke Wednesday sounded protective of the privacy inherent in a home. In a previous case that involved thermal imagers used to locate household marijuana-growing operations, the court said obtaining details of the home's interior was a search that required a warrant under the Fourth Amendment. Similar reasoning could apply to a dog's finely tuned nose, some justices hinted Wednesday.

“Doesn't that mean that what's in your home that's not visible to the public has an expectation of privacy as well?” Justice Sonia Sotomayor asked attorney Gregory C. Garre, who's representing Florida in both cases.

Garre's response that people cannot expect privacy “when it comes to contraband” was flatly rejected by Justice Anthony Kennedy, who's a frequent swing vote on close decisions. Kennedy and Scalia, both Republican appointees, joined Sotomayor and several other Democratic appointees in repeatedly challenging Florida's case.

Justice Samuel Alito and Chief Justice John Roberts Jr. sounded sympathetic to the state's cause.

“You may have an expectation of privacy in the marijuana plants, but you don't have an expectation of privacy in the odor, because you're emitting it out into the world, and it's the odor that was detected,” Roberts reasoned.

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