The Supreme Court appeared inclined to split the difference Wednesday when determining the appropriate use of drug-detection dogs: They're generally OK, but not at your doorstep.
Hearing arguments in two Florida cases, several justices seemed likely to accept the expertise of dogs with documented training to sniff out contraband, rather than demanding case-by-case evidence of their reliability.
But in a Halloween hearing, they drew a line at the entrance to private homes, arguing that crime-fighting dogs at one's doorstep are far different from Girl Scouts or trick-or-treaters.
The canines in question â€" retired drug detection dogs Franky and Aldo â€" weren't in court for the spectacle. But that didn't stop the justices from discussing their qualifications, motives and behavior.
Police "have every incentive to train the dog well," said Justice Antonin Scalia, questioning the Florida Supreme Court's demand for detailed training, certification and field performance records in Aldo's case. The liberal justices appeared less trusting of a dog's nose but similarly wary of using courts to determine each dog's qualifications.
On the other hand, Scalia and Justice Anthony Kennedy appeared to align with the court's four liberals against Franky, who detected marijuana in a Miami grow house only after spending several minutes sniffing around the front door. Justice Elena Kagan called that "a lengthy and obtrusive process." Justice Ruth Bader Ginsburg said it could lead to random searches of "any home, anywhere."
Both cases hinge on the Fourth Amendment's protection against unreasonable searches â€" a protection the high court held in high esteem during its last term, when it ruled unanimously that police should have obtained a warrant before placing a GPS device on a drug suspect's car.
Although modern technology didn't exist when the Founders wrote the Bill of Rights, dogs certainly did â€" and they have been used reliably by police for a number of causes, including the search for victims of this week's superstorm Sandy. "Scotland Yard used dogs to track Jack the Ripper," said Gregory Garre, who represented Florida in both cases.
"These dogs are quite reliable," agreed Joseph Palmore, representing the U.S. Justice Department, which sided with the state.
But Glen Gifford, an assistant public defender representing one of the defendants, begged to differ. "Dogs make mistakes," he said. "Dogs err."
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