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impermissibly intruded on that legitimate expectation.286 The Second Circuit’s conclusions on this issue were viewed as unsound, however, and have been rejected by all federal circuits and district courts that have considered the canine home-sniff issue.287 Only one court has followed Thomas’s privacy-based analysis and found that a canine home-sniff is a “search” under the Federal Constitution.288 The State v. Rabb court, in reliance on Thomas and Kyllo’s concerns about protecting the privacy of the home from government intrusions, explained: Likewise, it is of no importance that a dog sniff provides limited information regarding only the presence or absence of contraband, because as in Kyllo, the quality or quantity of information obtained through the search is not the feared injury. Rather, it is the fact that law enforcement endeavored to obtain the information from inside the house at all, or in this case, the fact that a dog’s sense of smell crossed the “firm line” of Fourth Amendment protections at the door of [the] house.289 While federal courts, other than the Second Circuit, have refused to extend Fourth Amendment protection to canine homesniffs, a number of states have interpreted their own constitutions to provide *889 protection under a variety of canine sniff circumstances.290 Although not determinative of the Fourth Amendment search issue,291 these cases are strong evidence that states routinely consider the circumstances of a canine sniff, and when privacy concerns are implicated, states provide protection. In a sense, the sheer number of states that consider the circumstances of a canine sniff in determining whether it is a “search” suggests that “time has set its face against” a categorical rule that sniffs are per se nonsearches.292 Further, these states’ practice is evidence that the canine sniff technique can be viewed as a “search” when used in privacy-sensitive circumstances without burdensome disruption of police investigative efforts. In view of the heightened expectation of privacy associated with the home and the intrusiveness of bringing a drug-detection dog into the protected curtilage area of a private residence, it is appropriate to characterize a canine home-sniff as a “search” under the Fourth Amendment. *890 6. Reasonable Suspicion or Probable Cause If the Court were to conclude that a canine home-sniff is, in fact, a “search” under the Fourth Amendment, as this Article proposes, the essential remaining question would be what quantum of suspicion is required to support the practice: reasonable suspicion or probable cause293 Certainly, the suspicion standard is an issue over which reasonable minds could disagree. New York, Arizona, and Indiana, for example, have concluded that a canine home-sniff is a “search” under their state constitutions but that reasonable suspicion is sufficient to support the sniff-search.294 On the other hand, Washington and Ohio have interpreted their state constitutions to require a search warrant supported by probable cause.295 The Rabb court also found the canine home-sniff to be a search but based its conclusion on the Fourth Amendment, which Rabb also interpreted to require a warrant supported by probable cause.296 In view of the divergent approaches on the suspicion standard, a few observations seem appropriate. Absent exigent circumstances, a warrant is required to search a person’s home or person.297 While the Court has refused to allow increased law enforcement efficiency to serve as a basis for bypassing *891 the warrant requirement,298 the Court does consider the real-world pressures of law enforcement when police are asked to make split-second decisions involving unfolding events in the field.299 In most cases involving canine home-sniffs, however, the police decision to perform the sniff does not involve the sort of split-second calculation that was present in Terry. Similar to the use of a thermal imager, in most cases there is time for police to resort to the warrant process.300 Some courts faced with the home-sniff question have suggested that probable cause would be an illogical requirement because a showing of probable cause would allow officers to obtain a search warrant to conduct a physical search of the premises in any event.301 While this argument may seem intuitively plausible, it is incorrect. In fact, the same argument could be made for the thermal-imaging device at issue in Kyllo: if police have probable cause to perform a thermal scan on a private home, then, the argument goes, police would also have probable cause to physically search the home for contraband, thereby rendering the need for the thermal scan irrelevant. The years since Kyllo have disproved this argument, however. The focus of post-Kyllo thermal-imaging warrant applications has been on whether there is probable cause to conduct the scan, not on whether there is probable cause to physically search the premises.302 *892 Similar to the thermal-imaging warrants required after Kyllo, a canine sniff of a private home should be supported by a warrant issued on the basis of probable cause to perform the sniff, not probable cause to physically search the premises. The requirement of a dog-sniff warrant would thereby ensure that canine sniffs of private residences would be limited to circumstances in which police had conducted an investigation and established an objectively reasonable basis for performing 146
the sniff--to the satisfaction of a neutral and detached magistrate. Examination of the facts by a magistrate would provide the steadying balance that is essential to ensure that canine sniffs of the home are conducted only under appropriate circumstances.303 C. Are There Limitations in Kyllo that Argue Against Its Applicability to the Canine Home-Sniff Issue tech•nol•o•gy . . . 1a: the practical application of knowledge esp. in a particular area . . . b: a capability given by the practical application of knowledge 2: a manner of accomplishing a task esp. using technical processes, methods, or knowledge . . . 3: the specialized aspects of a particular field of endeavor[.]304 As the Kyllo oral argument reflects, the Court clearly anticipates the eventual intersection of the canine home-sniff question and Kyllo’s limitations on sense-enhancing technology directed at the home.305 Kyllo’s relevancy to this question may turn on whether a detection dog is sense-enhancing “technology” and, if so, whether that technology could be considered “advancing” technology, to which Kyllo would apparently be applicable, or instead “routine” technology, to which Kyllo would apparently be inapplicable. *893 1. Dogs as Natural Technology Dogs are familiar fixtures in American society. Many of us have one sleeping on our sofa, guilt-free, at any given time. It is important not to allow our fondness for personal pets color the legal analysis of whether a trained detection dog, when used to discover information about the interior of a home, should be viewed as “technology” for purposes of Kyllo.306 Lower courts that refuse to apply Kyllo to canine home-sniffs do so, in part, based on our overall familiarity with dogs and their superior sense of smell307 and, as they argue, because the canine sense of smell is not a “rapidly advancing technology” of the sort warned about in Kyllo.308 Interestingly enough, the White House’s Office of National Drug Control Policy discusses detection dogs and lists them as “Non-Intrusive Technology,”309 and as is discussed below, the government describes detection dogs as “technology” in other project materials as well. Therefore, the government may find itself in the uncomfortable position of both defining and treating drug-detection dogs as “technology” in its own project literature and also arguing to courts that such dogs are not sense-enhancing “technology” for purposes of criminal suppression hearings. Understanding why the government treats drugdetection dogs as technology is therefore essential in determining whether these dogs are “advancing technology” for Kyllo purposes. As a threshold matter, it is helpful to consider more thoroughly the government’s treatment of drug-detection dogs in its own project literature. For example, a program is presently in place that is intended to enhance the drug-detection dog gene pool. In its “Nonintrusive Inspection” discussion, the White House’s Office of National Drug Control Policy described the program’s intended goal of creating a “worldwide gene pool” for substance-detection canines: *894 In conjunction with the U.S. Customs Service, the graduates of a breeding strategy for substance detecting canines are now working at U.S. ports of entry. Based on quantitative genetic principles proven by the Australian Customs Service, initial results indicate the potential to establish a worldwide gene pool for substance detection canines. . . . Scientists at Auburn University are analyzing functional olfaction characteristics to improve our understanding of the biological and behavioral processes in substance detection with canines. A dynamic threedimensional model has been constructed of the olfactory laminar flow, recovery, and adaptation. Further study will verify the mechanisms of the particle filtration process. Findings are being disseminated to all substance detection canine training agencies.310 Additionally, the 2002 Counterdrug Research and Development Blueprint Update (Blueprint) includes “substance detection canines” in the “Technology” section of its brief. Even the placement of the detection-dog technology discussion in the Blueprint is revealing. There, the discussion of the “worldwide gene pool” is flanked by a neutron-based probe that can be used to “provide a characterization of the [searched and] imaged object based on its elemental composition,” and a handheld device that can be used “to identify drugs in solid mixtures (e.g., pills) and aqueous solutions” through a “near infrared Raman spectroscopy method.”311 While a drug-detection dog is obviously not a gadget, these dogs are the object of meaningful scientific study and development; study both for the purpose of improved training and to scientifically enhance the dog’s capabilities. The canine sniff technique is being *895 enhanced (and, therefore, advanced) through scientific research,312 breeding programs,313 147
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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
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privacy in the presence or absence
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surrounding the use of the techniqu
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1437, 4 L.Ed.2d 1688 (1960); Henry
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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 and 138: location may be important in evalua
Page 139 and 140: III Framing the Canine Home-Sniff D
Page 141 and 142: seemingly making impermissible what
Page 143 and 144: possessions. Without minimizing the
Page 145: 4. Even Surreptitious Canine Sniffs
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
Page 189 and 190: to investigate. Noting that a metal
Page 191 and 192: active domestic use. It housed ten
Page 193 and 194: Ciraolo,191 involving aerial survei
Page 195 and 196: 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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