About four years ago, police led a drug-sniffing dog to the garage of Jose Salvador Guillen, asked his wife for permission to enter the garage and then detected an odor of marijuana.
Police, who were acting on a tip they had received eight months prior, obtained a search warrant and discovered bales of marijuana inside freezers in the garage. Guillen was later arrested and charged with possession of four pounds of the illegal narcotic.
On Dec. 8, the Arizona Supreme Court heard arguments regarding whether police had violated Guillen’s right to privacy as outlined by the Arizona Constitution.
The hearing came at the urging of the Attorney General’s Office, which is seeking to overturn a 2009 appellate court opinion that declared Tucson policemen had violated Guillen’s rights by deploying a drug-detecting dog on his property without proper cause.
The Division II Court of Appeals had ruled 2-1 in favor of Guillen. The panel of judges decided that allowing a dog to snoop around Guillen’s garage violated privacy rights in the Arizona Constitution, even though such action is allowable under federal law.
During the Supreme Court hearing, Assistant Attorney General Joseph Parkhurst said citizens cannot claim an expectation of privacy for odors that escape from their homes.
Parkhurst said the use of the dog to sniff around the garage’s perimeter differed greatly from more invasive measures used on homes that have been ruled unconstitutional by courts, such as thermal imaging equipment used to detect clandestine marijuana growing operations.
“The privacy interest has not been invaded because there is no search,” he said.
Guillen’s attorneys have argued that police violated Fourth Amendment protections against unlawful search and seizure by using dogs without a warrant.
Tucson defense attorney Emily Danies argued that using the drug dog outside the garage had “tainted” the investigation that led to Guillen’s arrest. She said officers wouldn’t have asked for a search warrant or permission to enter the home had the police canine not been used to alert them to the presence of drugs in the first place.
“I’m looking at this as fruit of the poisonous tree,” she said. “They never would have even asked her.”
But justices focused their questions on the consent given by Guillen’s wife to allow Tucson police officers into the garage. A search warrant was obtained before officers pulled bales of marijuana from the freezers.
The justices noted that the court record reflected that Guillen’s wife was never made aware that officers used a drug-sniffing dog to inspect the exterior of the garage.
“The dog sniff seems almost irrelevant to this situation,” said Justice Michael Ryan, flatly.
Danies argued, however, that the police canine is a highly trained animal and is similar to high-tech equipment capable of capturing information about the activities conducted inside a home.
Danies said that overturning the Court of Appeals opinion would roll back civil liberties protections by effectively allowing the police to patrol up and down streets with drug-sniffing dogs without sufficient cause.
Justice John Pelander later repeated the claim and asked Parkhurst what barriers would prevent citizens from being subjected to mass patrols.
“A fence or a wall or some indication that you hold the space to be private,” said the attorney.
Parkhurst’s attempt to reverse the appellate court opinion regarding the police use of drug-detecting canines is his second foray this year into the Fourth Amendment and state constitutional claims regarding privacy and unreasonable search and seizure.
He represented the Attorney General’s Office in Arizona v. Johnson before the U.S. Supreme Court.
The appeal to the nation’s highest court stemmed from a 2007 split decision by a Tucson appellate panel that found police did not have sufficient reason to conduct a “pat-down” search of Lemon Montrea Johnson after he agreed to get out of a vehicle during a traffic stop in 2002.
Parkhurst argued the appellate ruling jeopardized officer safety in roadside traffic stops. The U.S. Supreme Court agreed and issued a 9-0 decision in January that overturned the ruling by the Arizona Court of Appeals.