UNIVERSITY OF THE DISTRICT OF - UDC Law Review

The canine sniff technique’s reliance on the detection of methyl benzoate raises two separate issues in the home-sniff context:
(1) factual questions involving the detection dog’s accuracy or reliability because the home is a common repository for
substances that contain the entirely legal methyl benzoate molecule, and no data exist that consider whether situational
impediments in the home-sniff context may compromise an otherwise “reliable” canine’s detection capabilities; and (2) legal
questions, since Kyllo prohibits technology-enhanced inferencing about the interior of a home that discloses noncontraband
information.54 Too many uncertainties and gaps in scientific proof presently exist to assume that a positive canine home-sniff
is an appropriate basis on which to issue a search warrant.
II
Competing Lines of U.S. Supreme Court Caselaw: Which Line Controls Canine Sniffs of the Home
Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution
requires a magistrate to pass on the desires of the police before they violate the privacy of the home.55
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”56 The touchstone of the modern Fourth Amendment analysis turns on whether the
person has a *843 “constitutionally protected reasonable expectation of privacy.”57 In Katz, the Court rejected the
government’s argument that a “search” occurs only when there has been a “physical intrusion” into a “constitutionally
protected area,” and reoriented the Fourth Amendment inquiry through the Court’s now-familiar observation that the Fourth
Amendment “protects people, not places.”58
A. Focus on the Item: No Legitimate Expectation of Privacy in Possession of Unlawful Contraband
Prior to Place, the Court signaled in Florida v. Royer the likely favorable treatment that canine sniffs would receive, at least
where the sniff involved luggage located at an airport.59 The Royer Court’s reference to the canine sniff technique was
dicta,60 however, because the detectives never actually subjected Royer’s bags to a drug-detection sniff. As a way of
avoiding lengthy and intrusive detentions, the Royer Court seemed to invite the use of canine sniffs as an investigative tool,
noting that the brevity of the detention associated with a canine sniff would likely ensure that the boundaries of Terry v.
Ohio61 would not be exceeded.62 The Royer dicta was clear foreshadowing of both the favorable treatment that canine sniffs
would receive and the Court’s eagerness to consider the canine sniff issue itself, not just the reasonableness of the detention
that made the sniff possible.
*844 Just three months later, the Court again went out of its way to discuss canine sniffs in United States v. Place.63 There,
detectives seized Place’s luggage on the basis of reasonable suspicion and subjected the luggage to a drug-detection dog. The
issue before the Court was whether Terry supported the limited detention of personal property on the basis of reasonable
suspicion. The Court concluded that Terry would permit such a limited detention, but the detectives’ ninety-minute detention
of the luggage was too lengthy to be supported under Terry.64
Although Place did not challenge the validity of the canine sniff to which his luggage was eventually subjected and the U.S.
Court of Appeals for the Second Circuit did not consider the sniff issue, the Court went beyond the issues presented to
consider the canine sniff question without the benefit of briefs or argument on this issue.65 Writing for the majority, Justice
O’Connor discussed the canine sniff issue in a conclusory, two-paragraph, citationless statement:
A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose
noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging
through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is
much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a
contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the
information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the
embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
*845 In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both
in the manner in which the information is obtained and in the content of the information revealed by the procedure.
Therefore, we conclude that the particular course of investigation that the agents intended to pursue here--exposure of
respondent’s luggage, which was located in a public place, to a trained canine--did not constitute a “search” within the
meaning of the Fourth Amendment.66
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