UNIVERSITY OF THE DISTRICT OF - UDC Law Review

scientifically validated training programs,314 and cloning technology.315 Just because a dog is not a gadget is not
determinative of whether detection dogs have been trained and developed such that they represent a form of sense-enhancing
technology. As the definition of “technology” suggests, the term describes “practical application of knowledge especially in a
particular area.” Because detection dogs receive careful training using “technical processes, methods, or knowledge,”316 and
are the subject of scientific study that is intended to enhance their capabilities,317 these dogs satisfy the definition of
“technology.” Certainly, the government’s own treatment of drug-detection dogs is a clear indication that, true to the label the
government has attached to them, these specially trained canines are a form of technology, and *896 that substantial scientific
attention has been directed toward “advancing” this technology.
Additionally, from a practical perspective, it makes sense to treat a canine home-sniff as “technology,” and therefore subject
to Kyllo. If dogs are permitted to sniff homes for drug-detection purposes, there would be no principled way to distinguish
between canines and mechanical devices that revealed only the presence or absence of controlled or other illegal
substances.318 The only distinguishing differences between these two varieties of “sniffers” would be that a dog is animate
and perhaps less accurate than any mechanical sniffer that might ultimately be used in the field.319 While some might argue
that the lack of precise accuracy of the canine sniff, as compared to a mechanical sniffer, makes the canine sniff less
intrusive, this argument makes little sense in the home-sniff context because the ensuing search on the basis of a falsepositive
alert would be so extraordinarily intrusive.320 Furthermore, basing any distinction on Kyllo’s expressed concerns
about “advancing technology” seems premature in the canine sniff context because genetics-based breeding programs with
the intended goal of enhancing drug-detection dog capabilities are in place,321 and a so-called “super sniffer” dog has *897
been produced by crossbreeding Siberian huskies with jackals.322 Therefore, the only remaining distinction is that dogs are
animate sensing devices and mechanical sniffers are not. While this is admittedly a way to distinguish the two varieties of
“sniffers,” the distinction appears to be the only way to distinguish them in a principled manner. As the Rabb court observed:
At the end of the analysis, the Fourth Amendment remains decidedly about “place,” and when the place at issue is a
home, a firm line remains at its entrance blocking the noses of dogs from sniffing government’s way into the intimate
details of an individual’s life. If that line should crumble, one can only fear where future lines will be drawn and
where sniffing dogs, or even more intrusive and disturbing sensory-enhancing methods, will be seen next.323
Accordingly, drug-detection dogs represent a “natural” technological aid to law enforcement and should therefore be subject
to Kyllo.324 Similar to the thermal imager in Kyllo, detection dogs do not actually detect contraband in most cases; their alert
to the methyl benzoate molecule instead allows police to infer that contraband is also present. Therefore, drug-detection dogs
are a sense-enhancing technology that implicate the same concerns expressed in Kyllo: (1) “advancing technology,” in view
of the potential for technology-based enhancement of the canine sniff technique (through science-based breeding programs,
cloning technology, and innovative training tactics), and (2) the disclosure of noncontraband information.
2. “Routineness” of Technology Directed at the Home
As Kyllo clearly indicated, not all sense-enhancing technology is barred from use in gathering information about the interior
of the home. The Kyllo Court specified that whether technology was in “general public use,” which Kyllo explained to mean
“routine,” may be a factor in determining whether the police surveillance tactic at *898 issue amounts to a “search.”325
Therefore, it is worthwhile to consider whether dogs could be viewed as sufficiently “routine” to merit treatment as
technology that is in “general public use.” In other words, even if dogs are viewed as sense-enhancing technology within the
meaning of Kyllo, the canine sniff might be sufficiently “routine” that society would lack a reasonable expectation of privacy
in the information revealed by the sniff.
While the Kyllo Court did not specify how “routineness” was to be determined,326 guidance on this issue can be found in
Kyllo’s treatment of earlier cases in which technology was used to gain information about the home or its uncovered
curtilage areas. Kyllo expressly endorsed earlier Supreme Court decisions that permitted the use of technology to facilitate
the ordinary perceptions of police officers.327 In the aerial surveillance cases, Florida v. Riley328 and California v.
Ciraolo,329 the technology of air flight enabled the officers to observe marijuana plants growing in uncovered curtilage areas
of private residences. Neither case involved optical magnification of a human’s ordinary eyesight, however. The Riley and
Ciraolo cases focused on the lawfulness of air flight at the elevations involved and the fact that no intimate details concerning
the home were discovered during the aerial surveillance.330 Although Kyllo clearly accepted the validity of the Riley and
Ciraolo *899 decisions,331 it reoriented their justification to make those decisions consistent with Kyllo’s reasoning. The
Kyllo Court deemphasized the earlier decisions’ reliance on the nonintimacy of the information discovered and instead
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