There was a Monty Python quality to the oral arguments on Wednesday in the two Supreme Court cases involving drug-sniffing dogs. The lawyer who was challenging the use of dogs to sniff on a suspect’s front porch without a warrant said, “whether it’s a Cockapoo or Franky, who from all the pictures appears to be a very cute dog, it’s not what the dog looks like, it’s what the dog is doing on the front porch.” But despite the many dog jokes at the oral arguments and in the briefs (which note that Frank, the drug sniffing Labrador retriever “is currently enjoying retirement as the family pet for his handler in Miami-Dade County Florida”) the stakes in the two cases could hardly be higher: they involve nothing less than the question of how closely the Court is willing to scrutinize the invasiveness and effectiveness of privacy-invading tools designed to detect contraband--not only drug-sniffing dogs on front porches but also naked bodyscanners at airports and spectrascopes designed to detect drugs on the street.
It was encouraging that, in the first case, Florida v. Jardines, the conservative justices seemed receptive to the idea that, because people have property interests in the curtilage surrounding their homes, the police couldn’t take a dog onto a suspect’s front porch to sniff for drugs. “I think you cannot enter the protected portion of a home, which is called the curtilage, with the intention of conducting a search, that is not permitted,” said Justice Antonin Scalia. But Scalia’s emphasis on protecting privacy by enforcing the laws of private property—which he also emphasized last term in striking down the police’s decision to affix a GPS device on a suspect’s car without consent—provides little protection for privacy at a time when most of the threats we experience come not from drug-sniffing dogs on our porches but from technologies that can scan our naked bodies in airports or scan the content of our papers and emails stored on third-party servers in the digital cloud.
That’s why the question posed by second case, Florida v. Harris, was even more important, although it received less attention: should courts independently evaluate the accuracy of dog sniffs by reviewing not only their training but their overall rate of false alerts. Unfortunately, judicial review of the accuracy and intrusiveness of privacy-invading technologies outside the home is something the conservative justices seemed less inclined to encourage.
Ever since 1983, the Supreme Court has treated specially trained narcotics dogs as a kind of perfect search. Because they’re trained only to reveal the presence or absence of drugs or contraband, and don’t reveal any innocent or embarrassing property or activity, the Court held, dog sniffs don’t threaten any legitimate privacy interests or require warrants or probable cause at all. If a technology truly is completely effective and minimally intrusive—in other words, if it actually revealed only drugs and nothing else -- the Court is right that it should be upheld as a completely reasonable search. Unfortunately, lots of evidence since 1983 has suggested that dogs often falsely alert depending on their training, or on the subtle “cuing” of their police-masters: Justice Sonia Sotomayor was especially troubled by an Australian study showing that “one dog alerted correctly only 12 percent of the time.”
When false alerts can lead the police to invade the privacy of the home, the liberal and conservative justices seemed open to the idea that our legitimate expectations of privacy may be invaded. But for the conservative justices, who care about private property, the case may turn on the esoteric question Justice Samuel Alito identified: would taking a police dog to the front door of a house be considered a trespass under common law in 1789?
Regardless of the answer to that question—which the framers seem not to have contemplated since there were no trained drug sniffing dogs before the 1970s—a ruling in Jardines that the police need a warrant before taking a dog onto a front porch would provide little protection for privacy at a time when the main threats to the security of our “persons, houses, papers, and effects” come not from drug-sniffing dogs but from drug-sniffing technologies—such as the naked-body scanners introduced at American airports to detect contraband concealed under clothing.
Because of the Supreme Court’s reluctance to evaluate the invasiveness and effectiveness of the privacy-invading technologies, lower courts have refused to evaluate the effectiveness and intrusiveness of the naked backscatter machines at all, despite the availability of an alternative, millimeter wave technology that protects security while also protecting privacy by scrambling the images of the naked body into a non-descript blob. It took a political protest—inspired by the traveler who immortally exclaimed “Don’t touch my junk”—to persuade the TSA to go back to the drawing board: In October, in a major but unacknowledged victory for privacy, the TSA announced that it will remove the naked backscatter models from the largest American airports and replace them with the privacy-protecting millimeter wave blob machines.
It’s unfortunate that the Supreme Court has been unwilling to evaluate the effectiveness and intrusiveness of privacy-invading technologies, since the National Academy of Sciences issued a blistering report in 2008 highlighting the problems that arise when “the interpretation of forensic evidence is not always based on scientific studies to determine its validity.” This was the problem that the Florida Supreme Court tried to address in the Harris case by concluding that “the State must introduce evidence concerning the dog’s reliability” in a case where the State intends for the “dog’s alert [to provide] probable cause for a search.” Unfortunately, the same conservative justices who were concerned about protecting the private property interests of homeowners in the first dog sniff case seemed reluctant to have judges evaluate the accuracy of particular dogs in the second case. “If the reasonableness of a search depended upon some evidence given by a medical doctor,” said Justice Scalia, “the Court would not go back and examine how well that doctor was trained at Harvard Medical School.”
Drug-sniffing dogs are far less reliable than Harvard Medical School doctors, but the stakes in the Harris case go far beyond the canines. As the Electronic Privacy Information Center points on in an amicus brief, lower courts are struggling to evaluate the constitutionality of a series of dizzying new privacy-invading technologies designed to detect contraband, including not only naked body scanners but Terahertz Wave Reflection Spectroscopy machines, used to identify drugs from a distance based on their recognized molecular “fingerprint,” or email scanning programs like “Carnivore” that can read millions of innocent communications in the course of searching for suspicious evidence of drug deals.
The reasonableness of these technologies depends on their accuracy and intrusiveness: if they truly are designed like blob machines rather than naked machines, and only reveal contraband but no other embarrassing information, they should be upheld; if they prove to be highly inaccurate and therefore highly intrusive, they should be closely regulated. That’s why it’s not enough to for the justices to hold that the police can’t bring Franky onto the front porch. Let’s hope they also hold that Franky can’t be used at all unless his nose is as good as his trainers insist.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.