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The Smell Test

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The "dog days" are usually in August, but Halloween was dog day in the US Supreme Court, as the high court heard two Florida cases on the use of drug-sniffing dogs.  Transcripts are now available in Florida v. Jardines and Florida v. Harris.  Orin Kerr gives his assessment at VC.

Based on the arguments, my guess is that the state will win one and lose one. The Court will probably agree that the Fourth Amendment was violated in Jardines, in which the officer brought the dog to the front door and the dog sniffed for drugs. On the other hand, the Court will probably rule that the Fourth Amendment was not violated in Harris because the training the dog received was sufficient.
In recent years, when cases have focused on the core Fourth Amendment question -- what the police can and cannot do -- the defense side has had their share of wins.  Sometimes I agree with the defense myself.  These cases fall in the substantive category.  When the case focuses on the distinct question of whether evidence should be excluded from the criminal trial, however, the high court has steadily taken one notch after another out of the exclusionary rule.  There are no cases of the latter type on the docket for this term yet.

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Previously 4th Amendment cases rode on "the right be, right to see." In these cases it should be right to be, right to smell.

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