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of Kyllo’s limitations on sense-enhancing technology directed at the home. Interestingly enough, it may be Justice Stevens’s Kyllo interpretation that the Court ultimately embraces. In 2005, Justice Stevens authored the Caballes opinion, which permitted the suspicionless canine sniff of a lawfully stopped vehicle.125 In dicta, Justice Stevens explained that the suspicionless use of a canine sniff to investigate the exterior of Caballes’s vehicle was entirely consistent with Kyllo because the sniff revealed no lawful activities or information.126 By pressing Kyllo’s second explanation concerning the contraband/noncontraband nature of the information discovered, the Court appears ready to reorient Kyllo to bar only warrantless use of sense-enhancing technology that might also reveal noncontraband information. *857 Additionally, the Court has considered the warrantless use of other sense-enhancing technology directed at the home prior to Kyllo, cases that should prove helpful in analyzing canine home-sniffs. One case in particular, United States v. Karo,127 which was cited favorably in Kyllo, provides insight into the home-sniff issue. Karo involved the use of beeper technology128 to track the movement of cans filled with chemicals used in the manufacture or refinement of illegal street drugs after the cans had been hidden inside a private home.129 The Karo Court concluded that warrantless monitoring of the beeper violated the Fourth Amendment because the beeper provided “information” about the interior of the home that could not have been obtained through observation from outside the home’s curtilage.130 The Court analogized the warrantless monitoring to surreptitious physical entry by DEA agents to search the home to determine whether the can of ether was still present, a clearly impermissible surveillance technique.131 Karo is potentially significant because it is a post-Jacobsen case, yet the decision uses expansive language to describe the protection from police discovery afforded to property hidden in a private residence, language that is arguably inconsistent with the Jacobsen premise. Karo states that the Fourth Amendment protects a person from police discovery of “information” about the interior of the home,132 “a critical fact” about the interior of the premises,133 whether a “particular article” is located within the home,134 and concerns about monitoring “property” that has been withdrawn from *858 public view into a home.135 While some of these references were simply descriptive of Karo’s facts concerning monitoring of the home to determine whether the can of ether was still present,136 other language in Karo appears to have broad applicability and may be relevant to the canine home-sniff analysis. In particular, the Karo Court noted: We cannot accept the Government’s contention that it should be completely free from the constraints of the Fourth Amendment to determine by means of an electronic device, without a warrant and without probable cause or reasonable suspicion, whether a particular article--or a person, for that matter--is in an individual’s home at a particular time. Indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight.137 This language is expansive enough to bar monitoring for any type of item, including contraband. The question then is whether this is a supportable interpretation of Karo’s reasoning. Perhaps it is. Certainly, there is nothing in Karo’s expansive discussion to suggest that contraband hidden in the home should be excluded from the Court’s treatment of property “withdrawn from public view,” and when the Court has intended to limit its holding to certain types of property, it has certainly made its intentions known.138 As an additional point, the Karo Court referenced the use of technology to locate whether a particular person is in a home at a particular time.139 While knowing a person’s location is obviously helpful in an ongoing criminal investigation, the location of a person who has an outstanding arrest warrant is of critical importance to the police. In a sense, the fugitive is like contraband: (1) with an arrest warrant, police can enter the suspect’s home to arrest (“seize”) him,140 and (2) with a search warrant, police are authorized to enter a *859 third person’s home in order to make the arrest.141 Karo suggests that technology-based monitoring of a home to determine the location of a person, apparently even someone who could be lawfully seized upon discovery, would be impermissible. If police are barred from using technology directed at a home to locate such a person, then “information” about the home should also be interpreted to include contraband. Interestingly enough, technology that would enable police to determine an individual’s exact location already exists.142 A locational scanning device that would allow police to detect an individual’s presence143 by identification of a computer chip embedded into the individual’s driver’s license is in the development stage.144 While it could be argued that this proposed technology would detect only the driver’s license rather than the actual fugitive individual, this is an artificial distinction because, similar to a cell phone, people ordinarily keep their driver’s license on their person or close at hand.145 An analogous inference arises when a drug- *860 detection dog alerts to a methyl benzoate source inside a private home. Like the inference that a fugitive is physically present when the fugitive’s driver’s license or cell phone is detected inside a private home, detection of methyl benzoate by a drug-detection dog enables police to infer that contraband is also present. 138
III Framing the Canine Home-Sniff Debate A. Should Place’s Accuracy and Limited Intrusiveness Justifications Be Extended to Support Canine Sniffs of the Home This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.146 While permitting canine sniffs of the home is simply a newer application of the rule set out in United States v. Place,147 extending Place to this newer, residential factual setting requires courts to engage in an analogous sort of “construction” process to the one warned about above by Justice Jackson in his Douglas v. City of Jeannette concurrence. Courts, at times, extend a constitutional rule too far to be supported by the rule’s doctrinal underpinnings, and when that happens, sometimes that floor, too, crashes in. The Court has shown a recent willingness to examine critically a constitutional rule that has been extended in a way that was incompatible with the rule’s justifications.148 As discussed below, like the rule extension recently rejected in Arizona v. Gant, Place’s accuracy and limited-intrusiveness justifications do not support extending Place to include canine sniffs of the home.149 *861 1. Sui Generis:150 A Limiting Descriptor now Used Expansively for Canine Sniffs Prior to Place, it was believed that detection dogs did not make mistakes that resulted in invasions of privacy. In other words, when mistakes were made, they inured to the benefit of the suspect not the police.151 In view of that era’s background assumption concerning detection-dog accuracy, it is not surprising that the Place Court expressed complete confidence in the canine sniff technique; the Court’s view was simply a reflection of what was accepted as true at the time.152 Both Place and Jacobsen were premised, in large part, on the fact that the testing at issue--the canine sniff and the field testing of the white powder--was accurate.153 In language that has had important substantive ramifications for canine home-sniffs, the Place Court explained that the canine sniff is “sui generis” because the sniff was less intrusive than the traditional rummaging associated with a physical search and the sniff disclosed only limited information (the presence or absence of contraband).154 Therefore, accuracy and *862 the harmlessness of any potential canine sniff miscue was the background understanding of the Place era. In reality, however, error rates for drug-detection dogs undermine the Court’s accuracy justification for treating the canine sniff as a sui generis practice. As Justice Souter’s Caballes dissent reflects, drug-detection dogs are wrong a surprising amount of the time.155 Additionally, courts have accepted as “reliable” detection dogs with even higher error rates than the cases referenced in Justice Souter’s Caballes dissent156 Evaluating Place’s justifications and determining whether time has borne them out is made more difficult by the Court’s use of sui generis language, however. In practice, lower courts have seized on the sui generis label but have forgotten the justifications that led the Court to use the label.157 By giving substantive weight to the sui generis descriptor, lower courts effectively ignore the accuracy justifications of Place and Jacobson by injecting probably cause-based language into their analyses of whether a given drug-detection dog is sufficiently reliable.158 For these courts, the question then boils down to whether there is simply a *863 “fair probability” that a given drug-detection dog will be correct, making the accuracy justification essentially disappear.159 While the accuracy of the information revealed was arguably only an implicit basis for approving the canine sniff procedure in Place,160 the Court expressly endorsed the canine sniff technique based on its accuracy in United States v. Jacobsen.161 Perhaps that should be the end of the sui generis discussion. The Place Court’s accuracy assumption has not withstood the test of time, and that alone, at a minimum, should be enough to limit the technique’s applicability to the circumstances previously articulated in Place162 and Caballes.163 In fact, as Justice Souter argued in his Caballes dissent, the canine sniff accuracy questions that have emerged since Place provide sufficient grounds to reconsider the Place decision itself.164 Analysis of Place’s justifications has been made unnecessarily slippery, however, because of the Court’s use of the sui generis descriptor.165 It is difficult to meaningfully criticize, or even critique, a doctrine when an ambiguous label has been used to describe it.166 Therefore, *864 it may prove helpful to gain a better understanding of the Court’s use of the sui generis label in other cases, particularly in the Fourth Amendment context, to determine whether the label should imply any meaning other than a descriptive one. The term “sui generis” appears in 105 U.S. Supreme Court opinions, most of which are simply descriptive of the unique factual circumstances at issue that warranted one-of-a-kind treatment by the Court.167 In fact, the term “sui generis” often 139
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UNIVERSITY OF THE DISTRICT OF COLUM
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article that appeared in the period
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incarcerated children in the Distri
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Section 3: Writing Exercise Section
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Opinion PERRY, J. 73 So.3d 34 Supre
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activities, or statements that he e
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damaged package and notified federa
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B. “Sniff Test” at a Private Ho
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was standing in front of the door,
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justified on the basis of reasonabl
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The probable cause affidavit listed
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unwavering expectation that there w
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otherwise prompt his dog to alert.
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(quoting State v. Morsman, 394 So.2
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society recognizes as reasonable. A
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obtained through the search is not
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without implicating the Fourth Amen
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[14] The Government contends, howev
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the President and Attorney General
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nuisance. IV Blackstone, Commentari
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The other ‘eroding’ case cited
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11 Jones v. United States, 362 U.S.
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103 S.Ct. 2317 Supreme Court of the
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accompanying remedy. Here, for exam
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northbound on an interstate frequen
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inapplicable to the decision to iss
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L.Ed. 1879 (1949). Justice BRENNAN
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case. As the Court points out, “I
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forcefully suggest that the exclusi
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S.Ct., at 3073-3074. (WHITE, J., di
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law-enforcement officers have recog
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government enforcement agent.” Id
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advance an important underlying sub
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Americans must be that the Court gi
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3 In Spinelli, police officers obse
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The only reference to Hereford’s
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v. United States, supra; Sibron v.
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susceptible to the interpretation t
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8 Rugendorf v. United States, 376 U
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104 S.Ct. 1652 Supreme Court of the
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will not be betrayed.” United Sta
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*126 In sum, the federal agents did
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and that search has not left incrim
Page 87 and 88: privacy in the presence or absence
Page 89 and 90: surrounding the use of the techniqu
Page 91 and 92: 1437, 4 L.Ed.2d 1688 (1960); Henry
Page 93 and 94: 26 See, e.g., Michigan v. Long, 463
Page 95 and 96: Rodriguez, 497 U.S. 177, 181, 110 S
Page 97 and 98: how relatively warm—Kyllo was hea
Page 99 and 100: concurring). To be sure, the homeow
Page 101 and 102: homeowner would even care if anybod
Page 103 and 104: 4 This view comports with that of a
Page 105 and 106: unless the dog sniff itself infring
Page 107 and 108: probable cause to stop the car for
Page 109 and 110: and, implicitly, the application of
Page 111 and 112: 3 Kyllo was concerned with whether
Page 113 and 114: (500 grams and an unspecified amoun
Page 115 and 116: authority to allow police inside th
Page 117 and 118: AFFIRMED. We retain jurisdiction an
Page 119 and 120: that “[t]he right of the people t
Page 121 and 122: field” did not constitute a Fourt
Page 123 and 124: Government’s unrestrained power t
Page 125 and 126: y the government upon the privacy o
Page 127 and 128: own difficulties. It involves a deg
Page 129 and 130: search unless it is achieved by suc
Page 131 and 132: 88 Or. L. Rev. 829 Oregon Law Revie
Page 133 and 134: hidden in open locations, such as f
Page 135 and 136: While the Place Court’s failure t
Page 137: location may be important in evalua
Page 141 and 142: seemingly making impermissible what
Page 143 and 144: possessions. Without minimizing the
Page 145 and 146: 4. Even Surreptitious Canine Sniffs
Page 147 and 148: the sniff--to the satisfaction of a
Page 149 and 150: focused on the routineness of the a
Page 151 and 152: 6 See People v. Dunn, 564 N.E.2d 10
Page 153 and 154: 27 See Robert C. Bird, An Examinati
Page 155 and 156: 323 (Friedrich G. Barth et al. eds.
Page 157 and 158: pre-Place decisions issued by the U
Page 159 and 160: 97 See Illinois v. Caballes, 543 U.
Page 161 and 162: 121 Id. at 37 n.4 (majority opinion
Page 163 and 164: 147 462 U.S. 696 (1983). 148 See in
Page 165 and 166: 171 Dunaway v. New York, 442 U.S. 2
Page 167 and 168: 199 As Justice Souter explained,
Page 169 and 170: to school). 219 Cf. Katz & Golembie
Page 171 and 172: 240 See Kyllo v. United States, 533
Page 173 and 174: 263 In 2004, photographs emerged th
Page 175 and 176: 285 Id. at 1362. The story of this
Page 177 and 178: 306 But cf. Fitzgerald v. State, 86
Page 179 and 180: 328 Riley, 488 U.S. at 448 (observi
Page 181 and 182: 1 Search & Seizure § 2.3 (4th ed.)
Page 183 and 184: establish a right to privacy therei
Page 185 and 186: were locked and could only be opene
Page 187 and 188: The Wright rule also should not be
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to investigate. Noting that a metal
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active domestic use. It housed ten
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Ciraolo,191 involving aerial survei
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ackyard of the building was complet
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feet. The viewing from the helicopt
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cases as Ciraolo, Riley and Dow man
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premises were abandoned where all c
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22 Young v. Harrison, 284 F.3d 863
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37.1 McKenney v. Harrison, 635 F.3d
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(1983); State v. Eddy, 519 A.2d 113
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68 Dinkens v. State, 291 So.2d 122
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eceived no answer to knock on front
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870 (1987). In such a case, the fac
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“Second, the agents had a legal r
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131 United States v. Llanes, 398 F.
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167 The reference is to the “open
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however by fact lights were on insi
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properly crossed defendant’s land
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view”); State v. Merrill, 252 Neb
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the area within the ‘curtilage’
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is not to conclude that a search of
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265 Such analysis was challenged by
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