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15 Apprehension dogs are canines that are trained to locate and immobilize a suspect under circumstances during which it would be difficult or dangerous for a human officer to locate the suspect or secure him. Apprehension dogs that have been trained in the “bite and hold” technique are trained to find a hiding human and immobilize him, typically by biting and holding onto the suspect’s arm. See Jarrett v. Town of Yarmouth, 331 F.3d 140, 143 (1st Cir. 2003) (discussing training and practices of apprehension dogs in the context of qualified immunity). 16 Explosives-detection dogs are trained to sniff out “explosives, radiological materials, chemical, nuclear or biological weapons.” 6 U.S.C. § 1116(a) (2006). 17 See generally Andrew Rebmann et al., Cadaver Dog Handbook: Forensic Training and Tactics for the Recovery of Human Remains (2000). 18 See, e.g., Animal & Plant Health Inspection Serv., U.S. Dep’t of Agric., USDA’s Detector Dogs: Protecting American Agriculture 1 (1996), available at http://permanent.access.gpo.gov/lps19118/usdabbb.pdf (describing the Beagle Brigade as “a group of nonaggressive detector dogs and their human partners” that “search travelers’ luggage for prohibited fruits, plants, and meat that could harbor harmful plant and animal pests and diseases”). 19 Illinois v. Caballes, 543 U.S. 405, 423 (2005) (Ginsburg, J., dissenting) (“A dog sniff for explosives ... would be an entirely different matter [from the drug-detection dog at issue in Caballes]. Detector dogs are ordinarily trained not as all-purpose sniffers, but for discrete purposes.”). 20 See, e.g., Deborah Palman, U.S. Police Canine Ass’n, K9 Options for Law Enforcement, http://www.uspcak9.com/training/enforcement.cfm (last visited Apr. 29, 2010) (observing that many “find and bite” dogs “are also cross trained to be detector dogs which locate drugs or other contraband”). 21 See, e.g., Tracy L. English, Office of History, Lackland Air Force Base, The Quiet Americans: A History of Military Working Dogs 23 (2000), available at http://www.lackland.af.mil/shared/media/document/AFD-061212-027.pdf. The U.S. Department of Defense Military Working Dog program prefers the Belgian malinois breed because it “share[s] many of the positive traits with the German Shepherd,” including easy adaptation and “very good prey/kill instincts.” Id. “While some referred to these dogs as ‘living weapons,’ the main purpose of the animals was deterrence.” Id. 22 In contrast, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exclusively uses Labrador retrievers as explosivedetection canines. Sniffing Out Terrorism: The Use of Dogs in Homeland Security: Hearing Before the Subcomm. on Prevention of Management, Integration, and Oversight of the H. Comm. on Homeland Security, 109th Cong. 18 (2005) (statement of Special Agent Terry Bohan, Chief, National Canine Training and Operations Support Branch). Although “other breeds” could detect explosives, ATF uses only Labrador retrievers because they are a “hearty, intelligent breed ... [and] possess a gentle disposition,” which allows for them to be used “in crowds and around children.” Id. 23 See 6 U.S.C. § 532(a), (b)(3) (2006) (authorizing the use of the Explosives Training and Research Facility to “train canines on explosive detection”). 24 U.S. Police Canine Ass’n, USPCA Rulebook 2009 (2009), http:// www.uspcak9.com/certification/USPCARulebook2009.pdf [hereinafter USPCA Rulebook 2009]. 25 Nat’l Narcotic Detector Dog Ass’n, http://www.nndda.org (last visited Apr. 27, 2010). 26 Am. Working Dog Ass’n, http://www.americanworkingdog.com (last visited Apr. 27, 2010). 152
27 See Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L.J. 405, 410-15 (1996) (addressing the training of these dogs by federal and state law enforcement agencies). 28 See, e.g., Am. Working Dog Ass’n, Certification Standards: Narcotic Detection Standards, http://www.americanworkingdog.com/certification_ standards.htm#Narcotic_Detection Standards (last visited Apr. 27, 2010) [hereinafter AWDA Certification] (displaying the certifications available for narcotics-detection dogs). The NNDDA’s Narcotic Detection Standard includes, at a minimum, the detection of cocaine and marijuana, with the option of obtaining additional certification for the detection of heroin, methamphetamines, and opium. See Nat’l Narcotic Detector Dog Ass’n, Narcotic Detection Standards, http://www.nndda.org/official-docs/doc_download/2-narcotics-detection-standard (last visited Apr. 27, 2010) [hereinafter NNDDA Certification]; see also USPCA Rulebook 2009, supra note 24, at 18. 29 For building searches under the AWDA standards, the canine must search the interior of a building consisting of no less than two rooms and having at least one thousand square feet. AWDA Certification, supra note 28. The NNDDA tests detection dogs on their ability to find two stashes of each narcotic hidden in a given area, which is “of [an] indoor nature (building)” that is “no larger than one thousand ... square feet.” See NNDDA Certification, supra note 28. The USPCA uses slightly different certification requirements. The location of the canine testing is limited to a vehicle and indoor, interior rooms. See USPCA Rulebook 2009, supra note 24, at 18. For the indoor test, the canine must search three furnished rooms, each measuring a minimum of two hundred square feet. Id. 30 See generally supra notes 24, 28-29 (discussing certification standards for various private vendors). 31 For example, even fundamental issues remain unresolved within the industry, such as whether detection dogs should be trained and certified using street drugs or, instead, “pseudo-controlled substances,” which are “legal chemicals with the same smell as illegal narcotics.” See United States v. Broadway, 580 F. Supp. 2d 1179, 1192 (D. Colo. 2008) (defining pseudoscents). Although the use of pseudoscents may be preferable because they prevent the detection dog from becoming distracted by cutting agents routinely found in street drugs, most certifying agencies tout the fact that they train and certify detection dogs using only “real” drugs. Compare Jessica Snyder Sachs, The Fake Smell of Death, Discover, Mar. 1996, at 89, available at http:// discovermagazine.com/1996/mar/thefakesmellofde714 (interviewing sensory biologist Dr. Larry Myers at Auburn University) (“Myers tells of a narcotics officer who had trained his dog on drugs kept in plastic storage bags. ‘I’ll be damned if that dog didn’t start alerting to the scent of Ziploc bags,’ says Myers. A dog trained on street drugs can likewise get distracted by cutting agents, homing in on baking powder in the fridge and ignoring uncut cocaine in the pantry.”), with S. Hills Kennels, Inc., Drug Detection Dogs, http:// www.southernhillskennels.com/drug-dogs (last visited Apr. 29, 2010) (private vendor advertising that it “only use[s] real drugs, not pseudo drug scents”), and Nat’l Law Enforcement Canine Org., Certification Standards: Narcotics, http://www.nleco.org/cert_narc.html (last visited Apr. 29, 2010) (stating that no pseudodrugs are used for certification). 32 Nat’l Inst. of Justice, U.S. Dep’t of Justice, Guide for the Selection of Drug Detectors for Law Enforcement Applications: NIJ Guide 601-00, at 21-23 (2000) [hereinafter Selection of Drug Detectors]. The report defines a “trace drug detection system” as “any drug detection system that detects drugs by collecting and identifying traces from the material [which] may be in the form of either vapor or particulate.” Id. at 50. 33 See, e.g., Fitzgerald v. State, 837 A.2d 989 (Md. Ct. Spec. App. 2003), aff’d, 864 A.2d 1006 (Md. 2004). 34 See generally Gary S. Settles, Sniffers: Fluid-Dynamic Sampling for Olfactory Trace Detection in Nature and Homeland Security-- The 2004 Freeman Scholar Lecture, 127 J. Fluids Engineering 189 (2005) [hereinafter Sniffers]. Dogs may not be detecting drug molecules, “but rather one or more other chemicals that are contaminants in the [drug] and that have considerably high vapor pressures.” See also Selection of Drug Detectors, supra note 32, at 21. 35 A canine may not be able to detect drugs “manufactured in ultrapure form.” Selection of Drug Detectors, supra note 32, at 21. Some drugs, such as heroin, are extremely difficult, if not impossible, to detect from their vapor when conducting a trace detection search at room temperature and normal atmospheric pressure because the vapor concentration at room temperature is exceptionally low: one part per trillion. Id. at 43. 153
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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
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Rodriguez, 497 U.S. 177, 181, 110 S
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how relatively warm—Kyllo was hea
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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 and 146: 4. Even Surreptitious Canine Sniffs
Page 147 and 148: the sniff--to the satisfaction of a
Page 149 and 150: focused on the routineness of the a
Page 151: 6 See People v. Dunn, 564 N.E.2d 10
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
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Page 197 and 198: feet. The viewing from the helicopt
Page 199 and 200: cases as Ciraolo, Riley and Dow man
Page 201 and 202: 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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