UNIVERSITY OF THE DISTRICT OF - UDC Law Review

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
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