UNIVERSITY OF THE DISTRICT OF - UDC Law Review

4. Even Surreptitious Canine Sniffs of the Home Violate the Fourth Amendment
At present, there are few cases that document face-to-face encounters between the occupant of a home and a drug-detection
dog.267 For now, it seems that police officers are trained to avoid introducing a drug-detection dog while making initial
contact in a “knock and talk” encounter, in order to avoid creating a coercive atmosphere that would render the occupant’s
consent to talk or search involuntary.268 In a sense then, law enforcement’s own apparent practice of eschewing dogs during
the initial stages of a “knock and talk” is an implicit acknowledgment that dogs are intimidating and offensive and, therefore,
intrusive.
*885 On the other hand, drug-detection dogs are often used surreptitiously as a means to establish probable cause to obtain a
search warrant or, on a dragnet basis, to isolate homes or apartments for the officers to target for “knock and talks.” While it
could be argued that surreptitious use of drug-detection dogs is not intimidating or offensive because the home’s occupants
are unaware that their home has been sniffed, this is, in reality, beside the point. First, the home’s occupants may have been
aware of the sniff, but chose to avoid direct confrontation with the law enforcement team. Second, for some such canine
contact would likely be offensive on religious grounds, regardless of whether it was discovered at the time the contact was
originally made.269 Third, the potential for discovery,270 and therefore intimidation, offense, and even embarrassment,271
exists and cannot be predicted in advance. Fourth, unrestricted police discretion allows for arbitrary selection of sniff
locations; in other words, police targeting of individuals or neighborhoods for canine sniff screening without objective
antecedent justification.272
As a further thought, there is presently no information about property damage to the home of the sort that detection dogs have
been known to produce in other contexts.273 Property damage of even the most de minimis sort has not gone unnoticed by the
Court, at least in the seizure context. For example, even such de minimis intrusions as the destruction of a minute amount of
white powder by the field *886 testing in Jacobsen274 or the paint scrapings taken from the exterior of the vehicle in
Cardwell v. Lewis275 required justification under the Court’s reasonableness analysis.276 Important to the Court was the fact
that the property at issue, the white powder in Jacobsen and the automobile in Cardwell, had already been lawfully seized at
the time these additional de minimis intrusions occurred.277 For canine home-sniffs, on the other hand, no lawful seizure of
the home is required. Therefore, even relatively minor property damage to the home may be viewed as unreasonable.278
Since it is impossible to know in advance whether doors will be scratched, cats will be chased,279 or occupants will be
frightened or bitten, all canine sniffs of the home should be supported by, at a minimum, reasonable suspicion.280
While the drug-detection dogs presently in service are often of the intimidating sort,281 the intrusiveness that arises from a
dangerous *887 dog’s presence in a home’s curtilage could be mitigated by reliance on more “people-friendly” dogs, like the
members of the U.S. Department of Agriculture’s Beagle Brigade.282 Therefore, this Article does not propose that reliance on
any particular type of drug-sniffing dog, by itself, justifies treating canine home-sniffs as a “search.”283 With that said, it is
nevertheless important to emphasize that the drug-detection dogs presently in service are intimidating and that this fact must
not be ignored by courts asked to consider the home-sniff question. When the practice of introducing threatening, and
potentially offensive, police dogs into the protected curtilage of a private home is viewed in conjunction with the heightened
expectation of privacy associated with the home, then the canine sniff issue comes into sharper focus.
5. Heightened Expectation of Privacy Associated with the Home
The conclusion that a canine sniff of the home is a “search” within the meaning of the Fourth Amendment can be traced to
United States v. Thomas.284 Thomas involved the criminal trial of multiple defendants for their operation of a large
“narcotics ring run by a governing body called the ‘Council.”’285 In Thomas, the U.S. Court of Appeals for the Second
Circuit concluded that the warrantless sniff under the apartment door of one of the defendants violated the Fourth
Amendment:
[A] practice that is not intrusive in a public airport may be intrusive when employed at a person’s home. Although
using a dog sniff for narcotics may be discriminating and unoffensive relative to other detection methods, and will
disclose only the presence or absence of narcotics, . . . it remains a way of detecting the contents of a private, enclosed
space. With a trained dog police may obtain information about what is inside a dwelling that they could not derive
from the *888 use of their own senses. Consequently, the officers’ use of a dog is not a mere improvement of their
sense of smell, as ordinary eyeglasses improve vision, but is a significant enhancement accomplished by a different,
and far superior, sensory instrument. Here the defendant had a legitimate expectation that the contents of his closed
apartment would remain private, that they could not be “sensed” from outside his door. Use of the trained dog
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