Franky, the police dog involved in the 4th Amendment case before the U.S.… (Alan Diaz, Associated Press )
WASHINGTON — The Supreme Court justices spent part of their Halloween day debating whether visitors, including policemen with dogs, have a right to stand on the front porch of a house and knock on the door, or whether such unwanted visits may violate the rights of the homeowner.
The question arose in a case involving whether police may use a dog to sniff for illegal drugs at the front door of a home.
A lawyer defending a Florida police officer said that since trick-or-treaters can visit a front porch, so can a police officer with his trained dog.
"It's well-established, we think, going back to the common law, that there is an implied consent for people — visitors, salesmen, Girl Scouts, trick-or-treaters — to come to your house and knock on the door," said Washington attorney Gregory Garre.
But Garre ran into sharp opposition from most of the jurists, including Justice Antonin Scalia.
It is "not implied consent for the policeman to come up with the dog," said Justice Ruth Bader Ginsburg.
Scalia agreed. "When the officer's going there to conduct a search, it's not permitted," he said.
Garre was defending a Miami police officer who took his drug dog, Franky, to the front of a house searching for evidence of marijuana. When Franky gave his signal near the front door, the officer obtained a search warrant and found marijuana growing inside.
The Supreme Court took up the case to decide whether such an action violates the 4th Amendment's ban on unreasonable searches.
"In my neighborhood, neighbors can bring their dog up on the leash when they knock on your front door, and I think that's true in most neighborhoods in America," Garre said. "Homeowners that don't like dogs and want them off their property [can] put a fence around it to say, 'No dogs allowed.'"
"So now we tell all the drug dealers: Put up a sign that says 'No dogs'?" asked Justice Sonia Sotomayor.
Justice Stephen G. Breyer said a homeowner "would resent someone coming up with a large animal sitting on a front step … and sniffing for five to 15 minutes."
Ginsburg said that if the court were to approve this law enforcement tactic, police could "just go down the street, have the dog sniff in front of every door, or go into an apartment building."
Scalia, one of the court's conservative leaders, has drawn a line against searches that invade private space. In January, he wrote an opinion limiting law enforcement's use of GPS devices to track a car's movements. Putting the device on the vehicle was a "physical intrusion" into the owner's private property, he said.
A decade earlier, Scalia wrote a 5-4 opinion forbidding police from using a heat scanner to detect heat spots that might reveal indoor growing of marijuana.
On Wednesday, Scalia and the four liberal justices sounded as though they would limit police use of dogs around homes or apartments to sniff for illegal drugs.
But the justices suggested they were not inclined to require more proof that drug-sniffing dogs are usually right when they "alert" and trigger a search of a car or truck. Many police departments use trained dogs to sniff around cars that have been stopped along the road, and an alert from a dog gives an officer probable cause to search inside.
Last year, the Florida Supreme Court said it had doubts about the reliability of some police dogs, and it said officers must present data showing how well dogs do in detecting drugs.
That would "in effect put the dogs on trial," Garre said, urging the court to say police must show only that their dogs were well-trained.