This term, the Supreme Court handed down two opinions regarding whether a dog’s sniff is constitutionally admissible evidence. Although the sample size is small, there is an apparent distinction between the two opinions with regards to how the Court has handled the identities of the narcotics dogs that were responsible for the underlying sniffs: dogs who sniff in a constitutional manner are named, while dogs who violate the Constitution with their sniffing are not.
In Harris v. Florida, the Supreme Court sided with the canine, finding that the Constitution does not guarantee a right to cross-examine a narcotics dog to assess its reliability. A dog’s sniffing skills cannot be impugned on the basis of a few false positives — because, after all, drugs have great noses, so the doggy was probably just detecting trace amounts of the defendant’s past crimes, or something. And in the 9-0 Harris opinion, the Court waits only until the second paragraph before naming case’s the four-legged protagonist:
William Wheetley is a K–9 Officer in the Liberty County, Florida Sheriff’s Office. On June 24, 2006, he was on a routine patrol with Aldo, a German shepherd trained to detect certain narcotics[.]
Good boy, Aldo.
But in the opinion handed down today, in Florida v. Jardines, the Court was much less pleased with the dog in question. That dog, the Court concludes, was prone to knocking people over; his sniffing was very impolite, too, and involved the dog running and “‘tracking back and forth,’ … ‘back and forth, back and forth.'” (The dog’s behavior was even contrasted, unfavorably, against the polite behavior of Girl Scouts and trick-or-treaters.) In the end, the Court held that it constitutes a ‘search’ within the meaning of the Fourth Amendment for the government to use nameless, hyperactive police dogs to investigate a home and its immediate surroundings.
In contrast, Justice Alito’s dissenting opinion in Jardines adamantly disagreed with the majority, finding that the drug dog in Jardines was, in fact, a very good boy. In doing so, the dissent immediately identifies the dog in question:
According to the Court, however, the police officer in this case, Detective Bartelt, committed a trespass because he was accompanied during his otherwise lawful visit to the front door of respondent’s house by his dog, Franky.
Justice Alito thereafter remains on a first-name basis with Franky throughout his dissent. Rather than referring to what “the dog” did, as does the majority opinion, Alito carefully notes that “Franky remained on respondent’s property”, “Franky approached the front door”, “Franky was on the kind of leash that any dog owner might employ”, and that Franky’s handling officer “wait[ed] for Franky to find the strongest source of the odor”.
Alito’s personification (so to speak) of Jardines’ drug dog is entirely absent from the majority’s opinion. Scalia, writing for the majority, not only fails to name poor Franky, but in fact goes out of his way to constantly stress what a bad dog Franky was, noting that the dog had to be “on a six-foot leash, owing in part to the dog’s ‘wild’ nature,” as well as that the other detectives present at the drug bust were at risk of being “knocked over” by Franky’s antics. Poor Franky.
Must resist urge to make Supreme Court goes to the dogs remark.
The distinction between the two majority opinions probably has more to do with the two opinions’ authors rather than any strategery on the part of the Justices. Kagan (who wrote Harris) seems to be more of a storyteller, so I’m not surprised that she used the dog’s name. Scalia seems less concerned with the personalities and more concerned with cold legal “facts” and “law.”
What’s perhaps more interesting is the distinction between Kagan’s two opinions in Harris and Jardines. Kagan openly depersonifies poor Franky by turning him into an expensive piece of instrumentation. (“Like the binoculars, a drug-detection dog is a specialized device for discoveringobjects not in plain view (or plain smell).”) Seems a bit harsh.
Interesting semi-relevant quote from Justice Scalia:
So Scalia (1) hates writing search-and-seizure opinions, and (2) thinks “dog” is a pejorative term. Yeah, Franky never had a chance.
I would argue that one of the Constitution’s penumbras requires all drug-sniffing dogs to wear Scalia onesies while on duty.