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While we wait for clues on Jardines & Harris

On October 31, 2012, in Uncategorized, by Scott Alexander Meiner

The U.S. Supreme Court is currently hearing oral arguments in two pivotal cases involving drug-sniffing canines.

Florida v. Jardines asks: ”Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?”

Florida v. Harris asks: “Whether the Florida Supreme Court has decided an important federal question in a way that conflicts with the established Fourth Amendment precedent of this Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle?”

Florida v. Jardines and Florida v. Harris potentially visit (among other issues)

  1. whether positive or negative drug-dog alerts exclusively reveal the presence or absence of illegal substances—as some courts have mistakenly assumed;
  2. where, if anywhere, investigative use of a drug-dog constitutes a ‘search’ within the context and potential ambit of the Fourth Amendment;
  3.  if a ‘search’, under what conditions does directing a drug-dog to sniff constitute an unreasonable search–if ever;
  4. what probative weight a positive alert gives;
  5. if the front porch of a home is protected curtilage;
  6. under what conditions implied consent exists for the police to occupy the front of a private residence;
  7. when, where, and possibly to what extent, does the government commit a ‘search’ by physically occupying space for the purposes of gathering information if that space is, to some degree, constitutionally protected; and
  8. how to treat positive drug-dog alerts in the face of credible evidence that what dogs alert to are substances, distinct from the drugs themselves, which are produced by both licit and illicit substances–such as methyl benzoate which can be found as an outgassed byproduct of cocaine in humidity but can also be found as an outgassed byproduct of licit substances like S. chartarum (black mold).

While neither case requires that the court reconsider its factually inaccurate claim, “the sniff discloses only the presence or absence of narcotics” first pronounced in United States v. Place, 462 U.S. 696 (1983), both provide a vehicle to reject such non-sense. Moreover, whatever the court ultimately says in these cases will likely have tremendous impact on Fourth Amendment and forfeiture cases for years to come.

It will be particularly interesting to see if methyl benzoate appears in the conversation. While many of the amicus briefs mention methyl benzoate (the leading, possibly only, scent that a dog alerts to when detecting cocaine), none of the briefs (to my eye at least) articulated the worry that a dog alerting to methyl benzoate could simply be alerting to high mold concentrations.

Drug-dog sniffs respond to odors (which are not illegal themselves) owing their presence to any number of potential substances–some of which are illegal and some of which are legal. Even a well-trained dog, with perfect handler, is trained to positively alert to odors associated with illicit drugs. These associated odors are substances distinct from the illicit drugs. Production of the odors does not require the presence of illegal drugs. In some cases, the licit odors are commonly produced by entirely legal substances. In the instance of cocaine, compelling research indicates that dogs alert to methyl benzoate–not cocaine. Methyl benzoate, is a fragrant volatile organic compound associated with, among other things, cocaine hydrolysis byproduct in humidity. Methyl benzoate is itself legal.

Methyl benzoate is produced naturally and synthetically. A multitude of legal substances produce methyl benzoate including hundreds of plant species, fungi, and bacteria. It is found in numerous everyday consumer products (insecticides, food additives, cheeses, fruits, oils, perfumes, cleaning agents, and the list continues extensively). Most alarming in the context of Florida v. Jardines, methyl benzoate is outgassed by common strands of mold at easily detected rates. It has been isolated as a biomarker for identifying sick building syndrome.  Certain strands, including Stachybotrys chartarum (black mold), have been shown to outgas methyl benzoate at particularly high levels in certain environments. This is especially problematic because some drug-dogs are trained only with methyl benzoate (with some research strongly indicating that drug-dogs may be incapable of detecting cocaine itself):

In fact, some drug-detection dogs are trained to alert exclusively to methyl benzoate, not cocaine. Other drug-detection dogs, such as those used by Customs, undergo field training for cocaine detection. See Chad H. Dowell, Dept. of Health and Human Servs., Health Hazard Evaluation Report 2004-0012-2948 U.S. Customs and Border Protection Canine Enforcement Training Center Front Royal, Virginia 1 (2004), available at http://www.cdc.gov/niosh/hhe/reports/pdfs/2004-0012-2948.pdf (describing that Customs uses “pseudo drugs” as training aids, which Customs produces itself in its “pseudo building” located at its facility). Although the phrase “odor of contraband” might suggest that detection dogs are trained to detect a complex bouquet of aromas or a unique odor signature for cocaine, in fact, detection dogs trained to alert to pseudo cocaine are exposed to methyl benzoate and no other volatile substance. Cf. id. at 1-3 (based upon a master list of substances that Customs identified as training-aid constituents, see id. at 1, it appears that the sole volatile constituent in Customs’s pseudo cocaine is methyl benzoate). LESLIE A. SHOEBOTHAM, BRIEF OF AMICI CURIAE FOURTH AMENDMENT SCHOLARS IN SUPPORT OF RESPONDENT, FLORIDA V. JARDINES.

The obvious danger is that the court could, at least for some communities, eviscerate the core Fourth Amendment protection against generalized searches by naively maintaining Place‘s claim, “the sniff discloses only the presence or absence of narcotics” if the court were to hold that drug-sniffs on the home did not require probable cause and that a mere positive sniff gave probable cause for a warrant to search the home.



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