UNIVERSITY OF THE DISTRICT OF - UDC Law Review

presumptively unreasonable without a warrant.
Kyllo, 533 U.S. at 34–40, 121 S.Ct. 2038 (citations
omitted) (quoting Silverman, 365 U.S. at 512, 81 S.Ct.
679; Payton v. New York, 445 U.S. 573, 590, 100 S.Ct.
1371, 63 L.Ed.2d 639 (1980)).
III. ANALYSIS
As noted above, the issue raised in the present case is
twofold: (i) whether a “sniff test” by a drug detection dog
conducted at the front door of a private residence is a
“search” under the Fourth Amendment and, if so, (ii)
whether the evidentiary showing of wrongdoing that the
government must make prior to conducting such a search
is probable cause or reasonable suspicion.
A. The Federal “Dog Sniff” Cases Are Inapplicable to
the Home
For reasons explained below, we conclude that the
analysis used in the above federal “dog sniff” cases is
inapplicable to a “sniff test” conducted at a private home.
First, we recognize that the United States Supreme Court
has ruled that because a “sniff test” conducted by a drug
detection dog is “sui generis,” or unique, in the sense that
it is minimally intrusive and is designed to detect only
illicit drugs and nothing more, Place, 462 U.S. at 707,
103 S.Ct. 2637, a dog “sniff test” does not implicate
Fourth Amendment rights when employed in the
following settings: (i) when conducted on luggage that
has been seized at an airport based on reasonable
suspicion of unlawful activity, where the luggage has
been separated from its owner and the “sniff test” is
conducted in a public place, see Place, 462 U.S. 696, 103
S.Ct. 2637; (ii) when conducted on the exterior of a
vehicle that has been stopped in a dragnet-style stop at a
drug interdiction checkpoint, see Edmond, 531 U.S. 32,
121 S.Ct. 447; and (iii) when conducted on the exterior of
a vehicle that has been subjected to a lawful traffic stop.
See Caballes, 543 U.S. 405, 125 S.Ct. 834. Further, the
United States Supreme Court has applied a similar
analysis to a chemical “field test” for drugs when
conducted on the contents of a package that has been
damaged in transit and is being held by a private shipping
company. See Jacobsen, 466 U.S. 109, 104 S.Ct. 1652.
We note, however, that in each of the above cases, the
United States Supreme Court was careful to tie its ruling
to the particular facts of the case. See *45 Place, 462
14
U.S. at 707, 103 S.Ct. 2637 (“[W]e 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.”); Edmond, 531 U.S. at 40, 121 S.Ct. 447
(“The fact that officers walk a narcotics-detection dog
around the exterior of each car at the Indianapolis
checkpoints does not transform the seizure into a
search.”); Caballes, 543 U.S. at 409, 125 S.Ct. 834 (“In
this case, the dog sniff was performed on the exterior of
respondent’s car while he was lawfully seized for a traffic
violation. Any intrusion on respondent’s privacy
expectations does not rise to the level of a constitutionally
cognizable infringement.”); Jacobsen, 466 U.S. at 123,
104 S.Ct. 1652 (“It is probably safe to assume that
virtually all of the tests conducted under circumstances
comparable to those disclosed by this record would result
in a positive finding; in such cases, no legitimate interest
has been compromised.”). Nothing in the above cases
indicates that the same analysis would apply to a dog
“sniff test” conducted at a private residence.
Significantly, all the sniff and field tests in the above
cases were conducted in a minimally intrusive manner
upon objects—luggage at an airport in Place, vehicles on
the roadside in Edmond and Caballes, and a package in
transit in Jacobsen—that warrant no special protection
under the Fourth Amendment. All the tests were
conducted in an impersonal manner that subjected the
defendants to no untoward level of public opprobrium,
humiliation or embarrassment. There was no public link
between the defendants and the luggage as it was being
tested in Place or the package as it was being tested in
Jacobsen, and the defendants retained a degree of
anonymity during the roadside testing of their vehicles in
Edmond and Caballes. Further, and more important,
under the particular circumstances of each of the above
cases, the tests were not susceptible to being employed in
a discriminatory or arbitrary manner—the luggage in
Place had been seized based on reasonable suspicion; the
vehicle in Edmond had been seized in a dragnet-style
stop; the vehicle in Caballes had been seized pursuant to a
lawful traffic stop; and the contents of the package in
Jacobsen had been seized after the package had been
damaged in transit by a private carrier. All these objects
were seized and tested in an objective and
nondiscriminatory manner, and there was no evidence of
overbearing or harassing government conduct. There was
no need for Fourth Amendment protection. As explained
below, however, such is not the case with respect to a dog
“sniff test” conducted at a private residence.