Judges Clash Over Use of Police Dogs

One of the most liberal judges of the U.S. 9th Circuit Court of Appeals and a leading conservative colleague have clashed in an unusually personal exchange of insults over questions of privacy, police dogs and judicial philosophy.

The rare legal quarrel between the two federal judges was triggered by a dispute over whether there is an urgent need to decide if police dogs can be used in searches of private homes.

Judge Stephen Reinhardt of Los Angeles, a leading 9th Circuit liberal, traded criticisms with Judge J. Clifford Wallace of San Diego, a conservative who has been mentioned as a possible U.S. Supreme Court candidate, in a decision Wednesday granting a new trial for a convicted cocaine dealer.

The two judges expressed their views on police dogs and judicial philosophy in a majority opinion written by Wallace and a concurring opinion written by Reinhardt, then continued the dispute in a flurry of footnotes included in their decision.

Reinhardt, claiming that police dogs will be “sniffing, snuffling or otherwise molesting people” in their own homes if the courts do not limit their use, mentioned Wallace by name in complaining that his colleagues had failed to resolve the question when they had a chance.

Wallace responded to Reinhardt’s criticisms by saying the issue can wait and arguing that judges should focus on narrow legal questions rather than broad issues whenever possible in making their decisions.

The two judges traded their remarks in a decision that awarded a new trial to a convicted Colombian cocaine dealer, Jose Marin, who was sentenced to a seven-year prison term in February, 1984.

Marin, 34, was living in a Marina del Rey apartment that was entered by U.S. Customs officials in connection with a joint cocaine investigation with Los Angeles and Glendale police in July, 1983. After obtaining a search warrant, Customs officials called in a golden retriever to sniff a suitcase believed to contain cocaine.

While there were no drugs in the suitcase, Marin was successfully prosecuted for conspiring with two other convicted cocaine dealers to sell drugs. In overturning his conviction, a three-judge 9th Circuit panel ruled that the search of his apartment itself was illegal. Writing the opinion, Wallace, a 1972 Nixon appointee to the court, said there was no need to decide the case on the issue of whether the drug-detecting dog had been illegally used because the conviction could be overturned simply on the basis that there was no probable cause for the original search of the apartment.

Concurring Opinion

Joining Wallace was Judge Alfred T. Goodwin of Pasadena, another Nixon appointee. While Reinhardt agreed with the outcome, he protested the majority view that the dog issue should not be addressed in a concurring opinion.

“The question is can we be forced to allow large police dogs to come into our homes and do whatever large police dogs do?” Reinhardt wrote. “The intrusion of these dogs is offensive to some, frightening to others and, sadly, to at least a few, reminiscent of the ugliest types of scenes that have occurred in police states.”

He added:

“As sure as it is being argued today that it is constitutional for police dogs to come into our homes and sniff suitcases, it will be argued tomorrow that it is equally lawful for them to sniff and bite our clothes, beds, chairs, cradles or whatever other possessions we keep in our homes.

“And can we really be assured that while the dogs are at it, they won’t be sniffing, snuffling or otherwise molesting people as well? I think clearly not.”

Called Court’s Duty

Reinhardt, a 1980 Carter appointee who once headed the Los Angeles Police Commission, argued that it was the court’s duty to stop the practice instead of postponing the question for some future decision.

“Since the Los Angeles Police Department apparently believes it is free to use dogs to search people’s homes, the U.S. attorney agrees, and an actual case and controversy is now before us, we are, in my opinion, obligated to let our government officials know that they are absolutely wrong,” Reinhardt wrote.

The concurring opinion by Reinhardt on the dog issue prompted Wallace to respond with a footnote to his own opinion, which in turn inspired Reinhardt to fire back with a footnote of his own in one of the sharpest public exchanges between 9th Circuit judges in recent years.

Wallace, commenting on references by Reinhardt to Nazi Germany and the South, said Reinhardt was proposing a “higher standard” for banning dog searches than the Constitution provides and added that no court that has considered the use of dogs has suggested that their use be governed by any legal standards other than “probable cause” in search-and-seizure cases.

“Since the seizure of Marin’s apartment took place without probable cause, we do not need to decide whether the use of the dog required something more than probable cause,” Wallace wrote, with Goodwin in agreement.

Probable Cause

“Nor do we believe that it is appropriate to reach out to do so. We leave for another case whether a dog that may sniff a suitcase in an airport without probable cause, and sniff the exterior of a dwelling pursuant to a valid warrant, may cross the threshold of a home if the officers accompanying it have probable cause.”

Reinhardt, in his footnote, repeated his view that the 9th Circuit should have banned the use of dogs in drug searches of private homes and added that “future courts certainly should say so when and if” the issue arises again.

“In the meantime,” he added, “my colleagues’ wholly gratuitous comments on an issue they deem to be irrelevant to the case before us would appear to tell us precious little about the Constitution and, in fact, to serve no useful purpose whatever.”

Wallace, on vacation, could not be reached for comment on the exchange between the two judges. Reinhardt, who is hearing cases in San Francisco this week, declined comment.