UNIVERSITY OF THE DISTRICT OF - UDC Law Review

[W]e cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. This is no formality that we
require today but a fundamental rule that has long been recognized in . . . America. While “[t]he requirements of the Fourth
Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement,” . . . it is not asking too
much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of
one’s home or office are invaded.343
It is reasonable and appropriate to consider the context in which a police investigative tool is used to determine whether it is a
“search” for Fourth Amendment purposes. Canine sniffs are not per se beyond the reach of the Fourth Amendment when the
sniff is performed under intrusive circumstances or in a location that implicates stringent Fourth Amendment privacy
concerns. A canine sniff of the home is problematic both because of its intrusiveness and because it implicates the privacy
concerns expressed in Kyllo. Therefore, a canine home-sniff is a “search” under the Fourth Amendment and must be treated
accordingly.
Moreover, treatment of canine sniffs as searches would not unduly hamper law enforcement efforts. While dragnet use of
canine sniffs would be prohibited under the Federal Constitution, this practice is already impermissible under a number of
state constitutions, seemingly without adverse law enforcement consequences. Resort to the warrant process appropriately
places a neutral magistrate in the decision-making role for determining whether this privacy-sensitive surveillance tactic
should be used. Similar to the thermal-imaging warrants required after Kyllo, a dog sniff warrant application would consider
whether there was probable cause to conduct the sniff, not whether there was probable cause to physically search the
premises. *903 When viewed in this light, a dog-sniff warrant would not involve an unreasonably burdensome showing and
would provide the objectivity of a magistrate in considering whether this potentially intrusive police technique was
appropriate.
As a final thought, the Court’s recent reminder in Arizona v. Gant344 that extensions of constitutional rules must be supported
by the rule’s underlying justifications has clear applicability to the canine home-sniff issue. Extending Place to include canine
sniffs of the home cannot be justified by Place’s accuracy and limited-intrusiveness justifications. A canine sniff of a home is
not the minimally intrusive law enforcement tool that a sniff of luggage at an airport or a lawfully stopped vehicle at the
roadside would represent. Therefore, mechanically concluding that canine sniffs are per se nonsearches on the basis of Place
and Caballes is unreasonable.
Footnotes
a1
Associate Professor of Law, Loyola University New Orleans College of Law; LL.M., Tulane University School of Law; J.D.,
University of Houston Law Center; B.S.N., University of Texas Medical Branch. I would like to thank my research assistant, Janet
Whitters Nowakowski, for her research skills and excellent contribution to this Article.
1 Silverman v. United States, 365 U.S. 505, 511 (1961).
2 See, e.g., Florida v. Royer, 460 U.S. 491, 506 (1983) (recommending use of the canine sniff technique because “[a] negative result
[from a canine sniff] would have freed Royer in short order; a positive result would have resulted in his justifiable arrest on
probable cause”).
3 United States v. Place, 462 U.S. 696, 707 (1983) (observing that a canine sniff of luggage located in a “public place” was not a
search, explaining that “[w]e are aware of no other investigative procedure that is so limited both in the manner in which the
information is obtained and in the content of the information revealed by the procedure”).
4 See infra notes 151-52 (discussing Place’s apparent assumptions concerning the accuracy of detection dogs). Because Place’s
canine sniff discussion was only two paragraphs in length, referenced no legal or scientific authority, and the canine sniff issue was
neither briefed nor argued to the Court, discussion of the Place Court’s assumptions is necessarily speculative. See Place, 462 U.S.
at 719 (Brennan, J., concurring).
5 Illinois v. Caballes, 543 U.S. 405, 409 (2005).
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