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Jewish World Review Nov. 1, 2012/ 16 Mar-Cheshvan, 5773 The Supreme Court's dog-day afternoon By Dana Milbank http://www.JewishWorldReview.com | The Supreme Court has a Lemon Test (for church-and-state separation), a Miller Test (obscenity) and a Smith Test (religious freedom), not to mention the late Justice Potter Stewart’s pornography test: He knew it when he saw it. To this list, Justice Elena Kagan on Wednesday proposed adding another method of jurisprudence — the Cockapoo Test. The newest justice’s idea goes something like this: If the police dog who is sniffing for drugs outside your house is extremely cute, the procedure may not violate the Fourth Amendment prohibition of unreasonable searches. “Suppose this really were a very simple procedure,” Kagan told the lawyer who was arguing that drug-sniffing dogs cannot be used to justify search warrants. “The dog comes up, takes a sniff, barks, sits down. And . . . the dog is not a scary-looking dog; the dog is a cockapoo. So just like, you know, your neighbor with his cockapoo, walks up to your door all the time, that’s what this police officer has done.” The lawyer, Howard K. Blumberg, conceded that the dog in the case, Franky, although not a cockapoo, “appears to be a very cute dog.” But, he argued, “it’s not what the dog looks like, it’s what the dog is doing on the front porch.” The Cockapoo Test, alas, may not be one for the casebooks. But after Wednesday morning at the Supreme Court, this much we know for sure: The Roberts court has gone to the dogs. The justices spent two hours hearing arguments about drug-sniffing dogs, and whether the evidence their wet noses detect outside of homes and cars can be used to justify searches. Dog theory is a little-explored area of law, and the justices were ready to chew on it. “I’m not sure it’s relevant,” Chief Justice John G. Roberts Jr. said, but “if you have a dog that’s trained and good at sniffing out heroin, the same dog is going to be good at detecting a bomb?” “I think any dog could be trained in either discipline,” answered Justice Department lawyer Joseph Palmore. “Can they be good at bombs, but not good at meth?” the chief justice persisted. “I think once a dog kind of chooses a major, that’s what they stick with,” Palmore posited. “You don’t want coon dogs chasing squirrels,” agreed Justice Antonin Scalia. The canine court’s theme for the day unleashed all manner of wordplay. The Supreme Court reporters traded prospective puns before the argument, about marking territory and throwing bones. But there was a serious question: Justice may be blind, but can she admit as evidence a dog’s superior olfactory powers? “There is an implied consent for people, visitors, salesmen, Girl Scouts, trick-or-treaters, to come up to your house and knock on the door,” argued Gregory G. Garre, representing the state of Florida, which is pro-sniffing-dog. “Yes, there’s an implied invitation to the Girl Scout cookie seller, to the postman, even to the police officer, but not police officer with dog,” said Justice Ruth Bader Ginsburg. “If you’re allergic to animals, you don’t want dogs walking around at your door,” contributed Justice Sonia Sotomayor, who also spoke about the importance of leashes. “Well,” suggested Garre, “you can certainly put the ‘No Dogs Allowed’ sign out front.” But the pro-dog argument was meeting with distemper on the bench. Justice Stephen G. Breyer said a typical homeowner would resent man and beast coming to their door and “not knocking . . . just sniffing.” Kagan questioned the logic of regarding Franky the dog not as a technology but as “just like a guy.” “Franky is using the same sense of smell that dogs have used for centuries,” Garre argued, informing the justices that “Scotland Yard used dogs to track Jack the Ripper.” The argument devolved into a dog’s breakfast, covering such legal topics as: the use of mothballs to mask the smell of marijuana; the smoke that comes from burning a corpse; delivery of invitations to the Policeman’s Ball; and how a tennis ball in a car trunk can cause a false-positive sniff for drugs. In the second case, the nation’s brightest legal minds found themselves deep in the details of dog training and certification — an irony observed by Scalia. “That’s a constitutional requirement, that the dog training doesn’t count unless it’s training with the officer who is using the dog?” he asked. “At least,” Scalia observed a few minutes later, “we don’t have to worry about mothballs in this case.” Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here. Comment on Dana Milbank's column by clicking here. Previously: • 10/31/12 A perfect political storm • 10/29/12 Behind the Clinton 'bromance,' a stealth campaign • 10/25/12 A Trumped-up bomb • 10/24/12 Groupthink Live: How conventional wisdom congeals in 2012 • 10/23/12 The sound of worldviews not colliding • 10/22/12 The tea party is helping Dems • 10/18/12 Moderate Mitt wins conservatives' blessings • 10/16/12 Reid's latest salvos are beneath the dignity of his office • 10/08/12 Obama pays price for ducking the questions • 10/05/12 Mitt Romney holds his own -- and then some -- in first debate • 10/03//12 The Zinger candidacy --- all sugary platitudes, no protein • 09/25/12 Obama makes room for 'The View' • 08/17/12 Hateful speech on 'hate' groups: The Family Research Council is no KKK • 08/16/12 Now Dems are employing harsh tactics • 08/14/12 Paul Ryan on soapbox at Iowa State Fair • 08/13/12 Romney's welfare gambit • 08/07/12 Harry Reid's latest broadside • 07/26/12 Romney can't have it both ways on defense spending, tax cuts • 07/19/12 Ron Paul, fed up • 07/17/12 The rotten results of one-party rule • 07/11/12 The missing giants of the Senate • 07/09/12 Representative Gaffe • 07/02/12 The umpire strikes back • 06/25/12 Norquist delivers the GOP's marching orders • 06/19/12 The left, feeling left out • 06/18/12 Skip the falsehoods, Mr. President, and give us a plan • 06/15/12 The Wall Street Senate • 06/13/12 Jeb Bush's heresy • 06/12/12 Pileup at the White House • 06/11/12 Obama's fate could be in Europe's hands • 06/04/12 Welcome to Camp Competitive • 05/31/12 Digging a racial grave • 05/30/12 A new conspiracy theory: Is Romney a unicorn? • 05/29/12 Do Republicans really want to clone one for the Gipper? • 05/24/12 Obama's protectors are under the microscope • 05/22/12 Obama's Old World mess: Allies are coming up short at a key moment • 05/16/12 Where have all the candidates gone? • 05/15/12 Barack Obama, the first female president • 05/14/12 Irrationality wins: Voter cure for Congress's failures will likely backfire • 05/08/12 Obama's marriage mess: His advisers scramble to clean up his 'evolution' • 05/07/12 Taking out Dick Lugar • 05/03/12 Gingrich may have ended campaign, but he will remain out of this world • 05/02/12 Our do-almost-nothing Congress • 05/01/12 President Obama, campaigner in chief • 04/25/12 Romney's immigration Etch a Sketch • 04/23/12 A congressional deal on immigration? Dream on • 04/19/12 Dems battle back against Republican 'war on women' • 04/18/12 Debauchery: An American govermental specialty • 04/17/12 Silent witness • 04/12/12 Rebuffing Obama's gimmicky 'Buffett Rule' • 04/11/12 Santorum's Gettysburg surrender • 04/09/12 The facts vs. Mitt Romney • 04/06/12 Mitt Romney, talking to the press, keeps the press at a distance • 04/05/12 From tracking al-Qaeda to tracking the wayward spouse • 04/04/12 Budget cuts as back-door deregulation • 03/26/12 My pet Mitt • 03/22/12 Mitt Romney's latest gaffe may be etched in history • 03/20/12 Supreme Court conceives of life after death • 03/15/12 Conservative for Obama: The British PM as campaign prop • 03/14/12 In Section 60, a silent search for meaning • 03/13/12 Super Friends, unite • 03/12/12 It's time to believe: Romney's a winner • 03/07/12 Settling in to Washington's ways • 03/06/12 AIPAC beats the drums of war • 03/05/12 Did Republicans forget the women's vote? • 02/29/12 Mitt Romney's acceptance speech, in (mostly) his own words • 02/28/12 Common ground becomes a great divide • 02/27/12 An expert witness for the GOP gender gap • 02/21/12 Where Romney shines • 02/15/12 A Republican death wish? • 02/14/12Obama's budget games • 02/13/12 Are GOPers playing right into Obama's hands? • 02/08/12 Obama pumps the compressor of Joe Hudy's Extreme Marshmallow Cannon • 02/07/12 Abramoff's atonement • 02/01/12 Why we in the media just love Newt • 01/31/12 The end of the road for Newt Gingrich? • 01/25/12 Gingrich is Obama's best surrogate • 01/24/12 Tim Pawlenty, Mitt Romney's attack dog • 01/16/12 Mitt Romney's Al Gore problem • 01/12/12 Kamikaze Gingrich, on the loose in South Carolina • 01/11/12 Journalists' campaign trail secrets revealed • 01/10/12 Mitt Romney's money problem • 01/09/12 Newtonian exceptionalism • 01/05/12 Mitt Romney out of control • 01/04/12 Indecision 2012: In Iowa and the GOP • 01/03/12 Rick Santorum's curious closing argument • 12/28/11 A few cracks in my crystal ball • 12/23/11 A few cracks in my crystal ball • 12/20/11 Strange brews and views? • 12/19/11 Cellphone ban would be a distraction • 12/15/11 Harry Reid, Mitch McConnell and the Malfunction Minuet • 12/14/11 The presidential auction of 2012 • 12/12/11 Newt's tactics comes back to haunt him • 12/06/11 Can an anthem save Occupy non-movement? • 12/05/11 The winner of the GOP campaign: Washington • 11/30/11 Barney the bully: Congressman Frank's other legacy • 11/23/11 Jon Kyl's search-and-destroy mission • 11/21/11 Pay to play, brought to you by Washington • 11/17/11 Big enough to save the supercommittee? • 11/16/11 Why Newt Gingrich won't last • 11/08/11 The 2012 campaign gets seedier • 11/06/11 A Machiavellian model for Obama • 11/03/11 The Herman Cain crack-up • 11/01/11 Cain can --- he will survive • 10/27/11 Stuntmen of the supercommittee • 10/26/11 Democrats on the sidelines • 10/24/11 Rick Perry's birther Parade • 10/24/11 The birthers eat their own • 10/19/11 The GOP's middle man • 10/17/11 The waiting for nothing Congress • 10/12/11 Sparsely occupied D.C.: Why the movement hasn't caught on • 10/10/11 Can Obama strike an alliance with Occupy Wall Street? • 10/06/11 Chris Christie, such a presidential tease • 10/05/11 Obama and his foot soldiers go toe to toe • 09/28/11 Cain could deliver • 09/26/11 Republicans? Mr. Nice Guys? • 09/22/11 Why Ron Paul is winning the GOP primary • 09/21/11 I am a job creator who creates no jobs • 09/20/11 Obama launches a revolution • 09/19/11 Dems for Romney? • 09/14/11 ‘Supercommittee’? More than stupor committee • 09/07/11 Mitt Romney finds his (corporate) voice • 09/01/11 The infallible Dick Cheney • 08/31/11 This liberal says Perry is the ultimate conservative candidate • 08/29/11 Wanted: More bite from Obama the Great Nibbler • 08/10/11 How Rep. Austin Scott betrayed his Tea Party roots • 08/09/11 The most powerful man on Earth? • 08/08/11 The FAA shutdown and the new rules of Washington • 08/04/11 Lt. Col. Allen West fires a round at the Tea Party • 08/03/11 Government on autopilot • 08/02/11 Dems mourn debt deal like death • 07/27/11 Life imitates sport • 07/26/11 Obama and Boehner take on Washington • 07/21/11 Why Americans are angry at Congress • 07/20/11 The new party of Reagan • 07/18/11 Rob Portman, the boring Midwesterner who could bring sanity to the debt debate • 07/13/11 John Boehner's bind • 07/04/11 Stephen Colbert, Karl Rove and the mockery of campaign finance • 07/01/11 President Puts Up His Dukes, As He Ought To • 06/28/11 Rod Blagojevich verdict: All shook up • 06/27/11 Progressives voice their anger at Obama • 06/24/11 ‘Mission accomplished,’ Obama style • 06/22/11 Jon Huntsman's first step toward oblivion • 06/21/11 Scott Walker finds making bumper stickers is easier than creating jobs • 06/20/11 A day of awkwardness with Mitt Romney • 06/06/11 Hubris and humility: Sarah Palin and Robert Gates on tour • 06/02/11 The Weiner roast • 06/01/11 Congress clocks in to clock out • 05/30/11 Hermanator II: No More Mr. Gadfly • 05/24/11 How Obama has empowered Netanyahu • 05/24/11 Pawlenty bends his truth-telling • 05/20/11 Default deniers say it's all a hoax • 05/18/11: Gingrich gives voice to moderation • 05/17/11: Donald Trump and the House of Horrors • 05/16/11: The medical mystery of Mitt Romney • 05/12/11: The body impolitic: Schock photos should tempt lawmakers to cover up • 05/10/11: Muskets in hand, tea party blasts House Republicans • 05/09/11: The GOP debate: America -- and the party -- needs the grown-ups • 05/05/11: Mitch Daniels, an alternative to scary • 05/03/11: Obama's victory lap • 05/02/11: How the journalist prom got out of control • 04/28/11: Obama's birther day: Why did he lower himself by appearing in the briefing room? • 04/27/11: Obama, lost in thought • 04/24/11: Andrew Breitbart and the rifts on the right • 04/22/11: Ten Commandments for 2012 • 04/21/11: Obama likes Facebook. Facebook likes Obama. • 04/18/11: Without Nancy Pelosi, Obama is adrift • 04/15/11: If progressives ran the world • 04/14/11: Faith in political apostasy • 04/13/11: One man's revolution is another's political expediency • 04/11/11: Shutdown theatrics • 04/06/11: Paul Ryan's irresponsible budget • 04/05/11: Robots in Congress? Yes, we replicant! • 04/04/11: Robert Gibbs, Facebook and the White House corporate placement service • 04/01/11: Haley Barbour, the fat cats' candidate • 03/31/11: Republican freshmen in House shut down compromise, and possibly the government • 03/30/11: Coburn and Durbin, the dynamic duo of the debt crisis • 03/28/11: The Obama doctrine: A gray area the size of Libya • 03/24/11: Dems as Weiners • 03/23/11: Obama's quick trip from tyrant to weakling • 03/17/11: Who's afraid of Elizabeth Warren? • 03/15/11: The underwear flap over Bradley Manning • 03/10/11: In Senate's debt debate, talk isn't cheap • 03/09/11: With Obama's new Gitmo policy, Administration officials had some 'splainin to do • 03/02/11: Issa press aide scandal is like bad reality TV • 02/25/11: Jay Carney: Mouthpiece for an inscrutable White House • 02/14/11: The Donald trumps the pols at CPAC • 02/09/11: Arianna Huffington's ideological transformation © 2011, Washington Post Writers Group