POLICE-RAID PROCEDURE RAISES PRIVACY QUESTION

Drug-Sniffing Dog Used Outside Home Without A Warrant

A court case involving a drug raid at the Houston home of a Bandidos
motorcycle gang member may help draw new legal boundaries for privacy
rights and police search-and-seizure powers.

State District Judge Joan Huffman is expected to rule this week on a key
issue raised by defense attorneys for two people arrested in the Oct. 4,
2000, raid. The attorneys want to suppress evidence seized at the home
because no search warrant was obtained before a police dog sniffed for drug
odors at the garage door.

Authorities cited the dog's positive reaction in getting permission from a
judge to search the home for drugs, apparently a common law- enforcement
tactic in Harris County. The challenge is part of a growing trend
nationally to question police search powers, legal experts said last week.

A Houston federal judge in January, for instance, threw out evidence
against another Bandidos member that was obtained after a police dog
sniffed at the house without a warrant. The U.S. Supreme Court struck down
a similar search last June.

Many legal scholars say the high court's case, Kyllo v. United States,
suggests that using a dog to sniff for drugs from outside a house is
considered a search. Prosecutors, however, said the Kyllo case, which deals
with a thermal-imaging device used to inspect a home for marijuana
cultivation, has no bearing on police dog use.

In the case before Huffman, David Gregory Smith, 39, of the 500 block of
Shawnee, and Kristian Stauffer, 29, of the 3300 block of Ashton Park, are
charged with aggravated possession of methamphetamines. Stauffer also was
charged with delivery of methamphetamines.

Fellow prosecutor Sally Ring said using drug-sniffing dogs without search
warrants is common for law enforcement. (A dog handler for the Harris
County Sheriff's Department testified that he does this frequently; a
spokesman for the Houston Police Department said HPD officers always have a
warrant beforehand.)

Ring said no search warrant is necessary when using police dogs on private
property that is not fenced or posted with "Keep Out" signs.

Smith's defense attorney, Phil Hilder, disagreed.

"She's absolutely wrong," Hilder said, citing an appellate decision in a
different federal circuit. "It's a warrantless search."

People have the right to "expected privacy" at their homes, and search
warrants are needed if a dog is brought onto private property to search,
said Edward Mallett, Stauffer's attorney.

"The state's running upstream," Mallett said.

The search at Smith's home was one of six authorized at least in part
because of the work of police dogs as part of an 11-month undercover
investigation into the Bandidos motorcycle club. The searches were
conducted by the Harris County Organized Crime and Narcotics Task Force,
which is made up of local and federal law-enforcement officers.

The dogs "alerted" when officers allowed them to sniff garage doors and
house doors, according to court records. The officers used that
information, along with an informant's tips, to obtain search warrants.

The warrants were signed by state District Judge Ted Poe.

Methamphetamines and marijuana, clothing connected to the Bandidos, and
pistols and knives were confiscated at Smith's house.

A search at the home of Carlton Neal Bare netted marijuana and a personal
computer that allegedly contained child pornography. Bare pleaded guilty to
possession of marijuana in state court, but federal prosecutors charged him
with possessing child pornography.

In a hearing on the pornography charge 2 1/2 months ago, U.S. District
Judge Lynn N. Hughes refused to allow prosecutors to admit evidence taken
from Bare's computer because the search warrant did not give officers
authority to look for that type of evidence. The charge was dropped.

Court documents also show that Hughes concluded having "a drug- sniffing
dog work the cracks of windows and doors is a search."

"It is equivalent to an officer using a vacuum pump to take an air sample
from the doorjamb and having it analyzed later, or in the case of using a
thermal sensor," the judge stated.

Prosecutor Ring said Hughes' ruling in Bare's case has no bearing on what
happens in state court. It was permissible for police dogs to sniff outside
Smith's house because postal workers, visitors and other solicitors have
free access to the garage doors, yard and front porch, she said.

But, said Kent Schaffer, Bare's defense attorney, "If you follow that
theory, you can take a dog up and down the street and get a search warrant
for every house where it barks."

According to a 1997 opinion from Judge Harvey Hudson of the state's 14th
Court of Appeals, "canine sniff is not a search." But that opinion dealt
with a police dog sniffing luggage at the Amtrak station in Houston.

Legal scholars said challenges to warrantless searches of private property
are growing.

In the Kyllo case, the U.S. Supreme Court ruled in favor of the defendant
who protested the law-enforcement agents' use of a thermal- imaging device
to detect heat lamps used for growing marijuana inside his home. The high
court ruled that police needed a search warrant because the imaging device
intruded on the home, said David Dow, a law professor at the University of
Houston Law Center and a civil rights expert. A dog is even more intrusive,
Dow said.

But Sandra Guerra Thompson, another UH law professor, said in Kyllo, the
court ruled against the warrantless search because the imaging device
indiscriminately gathered information about heat inside the home.

By contrast, Thompson said, drug-sniffing dogs are trained to sense only
drug odors and do not indiscriminately search a home.