SCOTUS, Franky and Aldo: High court reviews drug-dog protocols

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Yesterday the US Supreme Court heard two important Fourth Amendment cases related to drug sniffing dogs that deserve Grits readers interest (case names link to the opinions):

• Florida v. Jardines: Whether police can bring a drug sniffing dog (in this case, "Franky") to your home without a warrant?
• Florida v. Harris: What threshold must be met regarding evidence of reliability - training, certification, etc. - before a dog's say-so (in this case, "Aldo's") may be deemed probable cause?

See analyses from the New York Times, Slate, and SCOTUSBlog. At the Volokh Conspiracy, Orin Kerr thinks the state will likely lose in Jardines but prevail in Harris, mainly because of the defection of Antonin Scalia in the second case from the faction favoring stronger Fourth Amendment protections. At Reason Hit and Run, Jacob Sullum disputes some of Scalia's misconceptions about police motives.

Having skimmed both transcripts, I was pleased that Justices Anthony Kennedy and Sonia Sotomayor criticized the court's past ruling in Caballes that drug dog sniffs aren't a search because they're only looking for contraband. If the state prevails in Jardines it would unleash police to use drug-sniffing dogs door to door in neighborhoods and apartment complexes, much the same way some school districts can run drug dogs by every student's locker. So of the two, it is arguably more important from a pro-Fourth Amendment perspective.

However, it was disappointing that most justices seemed unconcerned with relatively high false-positive rates for drug-dog "hits." An Australian study discussed from the bench found some dog has hit rates of 12%; the Chicago Tribune last year found canines from suburban Illinois departments collectively had a 44% hit rate, meaning the dogs' signal that drugs were present was wrong more often than not. At a minimum the state should be required to keep records regarding dogs' hit rates in the field. And in any event, judging form the justices' debate, defense counsel can and should be questioning such issues even if the court doesn't draw some black and white line. The underlying questions in Harris won't go away regardless of which way the court rules.

The cases are expected to be decided by next summer.