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Of Franky and the Fourth.

Byline: The Register-Guard

The Fourth Amendment guarantees Americans the right to privacy and freedom from unreasonable searches and seizures in their homes. That includes, the U.S. Supreme Court said in a well-founded decision this week, protection from police using dogs to sniff for drugs on people's doorsteps without a warrant.

In a 5-4 vote, an unlikely majority comprised of members of the court's conservative and liberal wings said the use by police of trained drug dogs to investigate a home and its surroundings constitutes a "search" under the Fourth Amendment.

Because authorities failed to first obtain a warrant from a judge before taking a drug-sniffing dog onto private property, their search was unconstitutional. As Justice Antonin Scalia summarized for the majority, "A police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do."

The decision struck a welcome blow for due process and equal protection under the law. The ruling also bridged the court's usual ideological divide. Joining Scalia was Justice Clarence Thomas, one of the court's most bedrock conservatives, and liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The ruling upheld a 2011 ruling by the Florida Supreme Court that suppressed evidence uncovered at Joelis Jardine's home with the olfactory expertise of Franky, a Labrador retriever trained to sniff out illegal drugs. Responding a Crime Stoppers tip, police took Franky to the Jardine residence before obtaining a warrant. After Franky signaled the presence of a drug stash, police got a warrant and searched the home, which had marijuana growing inside.

There was much to like in this ruling for those who adhere to the ancient traditions of Anglo-American law that "every man's house is his castle" and that even the "poorest man may in his cottage bid defiance to all forces of government."

But the majority missed an opportunity to stake out broader protections under the Fourth Amendment. The court typically applies two tests to weigh the constitutionality of police searches - one that focuses on property rights, and the other on property interests or reasonable expectations of privacy.

Scalia based his ruling solely on the property rights test. But, as Justice Kagan noted in her concurrence, the majority should also have been "looking to Jardine's privacy interests." That's an important point at a time when increasingly sophisticated high-tech scanning devices (think drones and computer programs) are capable of detecting the presence of contraband from distances well beyond someone's front door.

Nonetheless, the court has preserved a fundamental tenet of privacy - the right of Americans to be free from warrantless and unreasonable searches and seizures.
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Title Annotation:Editorial
Publication:The Register-Guard (Eugene, OR)
Date:Mar 29, 2013
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