The case of the sniffing dog, and Privacy of Pot

Well, not exactly. By taking the case — or better yet, by not taking it — the high court could strike a blow for strict enforcement of a constitutional freedom as old as Magna Carta. These are the facts:

In April 2002, an anonymous informant advised the Broward County sheriff's office that someone was growing marijuana in a residence on Polk Street in Hollywood. The informant, obviously well-informed, identified the urban agronomist as a white male, 35 years of age. Thus prepared, the cops went to the specified address, taking a sniffing dog with them. The dog's name was Chevy. His age does not appear in the record.


The posse soon observed a white male exiting the domicile and driving away. The detectives followed in hot pursuit. Ten minutes later they stopped the driver for failing to signal as he changed lanes. The culprit identified himself as "John Brown." He was "visually nervous." His hands trembled. The detectives, skilled at recognizing such indicia of guilt, peered into the vehicle.

There they saw two books on cannabis cultivation. This was suspicious. The suspect explained the books by saying, in effect, that botany was his hobby. Suddenly Chevy alerted the cops to the ashtray. A clue! A palpable clue! Cannabis! The suspect broke down. He looked away as the gendarmes extracted two marijuana cigarettes from Brown's left shoe.

The party returned to Polk Street. Fifty-five minutes had elapsed. More evidence was required. Once more into the breach! The officers looked again to Chevy, the helpful hound. Handlers led him to the front door. Tally-ho! An alert! This did it. Now armed with a search warrant, police entered the house. They found 64 cannabis plants under cultivation and three cigarettes in a safe. It soon developed that "John Brown" was in fact James Rabb. His arrest followed swiftly. Trial seemed imminent.

Rabb's counsel moved to suppress the evidence. A trial court granted his motion, and a divided panel of Florida's fourth District Court of Appeal, speaking through Judge Bobby Gunther, affirmed. Now the case is pending in the U.S. Supreme Court on the state's petition for reversal and remand. We will know before long if Rabb goes free or goes on trial.

In her opinion, Judge Gunther relied chiefly on the Supreme Court's opinion five years ago in the case of another residential farmer, Danny Lee Kyllo of Florence, Ore. Using a thermal imaging device, police scanned his house. Telltale images emerged of unusual heat. These led to a search warrant, and behold! A hundred cannabis plants were growing happily inside.

Kyllo protested that the thermal imaging violated his constitutional rights. The lower federal courts turned him down: The imaging was not an "unreasonable search" under the Fourth Amendment. He appealed. In an unusual alignment of justices, the Supreme Court reversed, 5-4. Justice Antonin Scalia spoke for a majority that included Justices Souter, Ginsburg, Breyer and Thomas. In dissent, Justice John Paul Stevens spoke for Justices Kennedy, O'Connor and Chief Justice Rehnquist. It was a lineup never seen before and never to be seen again.

Now, getting back to the pending case in the high court: As a matter of Fourth Amendment law, is James Rabb's house in Florida to be equated with Danny Kyllo's house in Oregon? As the admissibility of evidence is weighed, is a dog's nose like a thermal imager?

Dogs' noses first appeared in Fourth Amendment law in United States v. Raymond Place in 1983, but as Judge Gunther pointed out in Rabb's case, the canine search in Place was a search in Miami's public airport, not in a private home. Rabb had "a legitimate expectation of privacy." If detectives had not summoned Chevy to the door, they likely "would not have detected the odor of marijuana emanating from the house."

"Thus the use of the dog, like the use of a thermal imager, allowed law enforcement to intrude into the constitutionally protected area of Rabb's house. ... The use of such a technique by law enforcement constitutes an illegal search."

Without evidence from the residence, the Florida cops would be left with a pitiful portion of pot for a federal judge to pass on. Give it up, I'd say. Let us concentrate on crime that truly matters.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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