Justice Samuel Alito, in the dissent, insisted that the majority opinion left the “mistaken impression” that Franky and handler, Miami-Dade detective Douglas Bartelt, spent extended time on the property before finally obtaining the search warrant.
“This entire process — walking down the driveway and front path to the front door, waiting for Franky to find the strongest source of the odor, and walking back to the car — took approximately a minute or two,” wrote Alito, who pointed out that Detective Pedraja himself smelled the marijuana emanating from inside the house.
Joining Alito in the dissent were John Roberts, Anthony Kennedy and Stephen Breyer. Scalia was joined by justices Clarence Thomas, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.
Florida’s defense attorneys reacted to Tuesday’s decision with praise.
“Although many have criticized Scalia, they are barking up the wrong tree,” said Miami federal defense lawyer David O. Markus. “Antonin Scalia is the defendant’s best friend.”
Said Jude Faccidomo, the president of Miami’s branch of the Florida Association of Criminal Defense Lawyers: “In an era when the Fourth Amendment seems to be eroding far too rapidly, we’re pleased the court issued a ruling that has maintained some barrier on police action.”
Illicit marijuana grow houses are a big business in Miami-Dade, with county police in 2010 seizing more than 30,000 pounds of marijuana from the operations.
In February, Miami-Dade narcotics detectives got into a harrowing shootout with two men running a hydroponics home in Southwest Miami-Dade. One died in an ensuing fire, while another killed himself. A third was charged with running the grow house.
Federal authorities also are prosecuting the Santiesteban family, who they say operated a large-scale grow house ring stretching from South Florida to New York. The family is suspected of being involved in at least two murders.
Earlier this month, one of the major players pleaded guilty and is expected to testify against others.
Police say trained dogs are not the only crime fighting tool used to investigate grow houses. Detectives usually field tips from informants, do extensive surveillance, conduct criminal background checks and check how much electricity a house might use in operating the energy-consuming lights used to keep marijuana plants growing.
Ted Daus, a Broward prosecutor who wrote an amicus brief on behalf of Police K9 Magazine, predicts the effect of the opinion will be mostly “administrative.”
“It’s going to require one extra search warrant,” he said.