The Supreme Court and Amicus Curiae Briefs

Today the Supreme Court heard arguments in two cases dealing with important questions under the U.S. Constitution’s Fourth Amendment prohibition against unreasonable search and seizure. At issue are questions such as whether the use of drug detection dogs in traffic stops or merely walking up to the front porch of a house constitute a search under the Fourth Amendment, and, if the dog detects the presence of drugs, does that constitute probable cause sufficient for a search warrant. The cases are Florida v. Jardines, No. 11-564 and Florida v. Harris, No. 11-817.

In the 2011 term than ended this past July, the Supreme Court heard arguments in only 79 of the of 7713 cases submitted to it that term, or just over one percent. (See October 2011 Term Statistics, Journal of the Supreme Court of the United States, October 2011 at II.) Besides the briefs filed by the parties in a given case, another factor that can influence the Court’s decision in a case are the amicus curiae, or “friend of the court” briefs filed by other interested parties in some cases. In both the Jardines and Harris cases, amici briefs were filed by groups of law professors who teach constitutional law and criminal procedure, and the author of both briefs and Counsel of Record for the group of professors was Loyola’s own Associate Professor Leslie A. Shoebotham.

An article by Prof. Shoebotham, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829 (2009) (SSRN LINK), dealt with drug detection dogs and the Fourth Amendment and led to her work on the Harris and Jardines briefs. As the New York Times noted in its article on these cases, the law professors’ brief deals with the scientific basis of canine drug detection. As the briefs detail, canine sniff tests aren’t as accurate in real life as they are in the movies and on television cop shows: many legal substances can trigger a positive reaction from a drug search dog, and their accuracy can be as low as twenty-seven percent.

The texts of both briefs are available through the ABA’s web site:

Florida v. Harris, No. 11-817, Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent (PDF)

Florida v. Jardines, No. 11-564, Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent (PDF)

And the Court typically can take several months before issuing its decision in a case, so it will probably the some time next spring before an opinion in this case is handed down.