UNIVERSITY OF THE DISTRICT OF - UDC Law Review

pre-Place decisions issued by the U.S. Air Force Court of Military Review reflect the tension between the military tribunal
decisions on this issue. In United States v. Peters, a canine sniff of the defendant’s car was performed by a drug-detection dog as a
part of a random gate inspection. 11 M.J. 901, 902 (A.F. Ct. Crim. App. 1981). After a suspected bag of marijuana and unknown
pills were found, the handler and canine went to the accused’s on-base residence, where the dog alerted at a front window. Id. At
the time of the alert, the dog’s “hind feet were on the ground in the yard and [its] front paws were on the window sill.” Id. The
court determined that the canine sniff was a search, despite the fact that the window was slightly open. Id. at 904. In contrast, in
United States v. Guillen, the court determined that a canine sniff conducted at the only door of the accused’s residence was not a
search. 14 M.J. 518, 519, 521 (A.F. Ct. Crim. App. 1982). In view of the split on the canine sniff issue and the clear indications
that drug-detection sniffs could be used in ways that implicate more serious privacy concerns, the Place Court’s failure to cite even
a single case and, instead, issue a global pronouncement on this important legal question is therefore perplexing.
68 See Katz & Golembiewski, supra note 38, at 741 (arguing that in Place “[t]here was no authority offered for the broad conclusions
which have controlled the law for the past twenty-three years; moreover, the unsolicited decision of the issue has served to
preclude it from ever being considered fully”).
69 United States v. Jacobsen, 466 U.S. 109, 111 (1984).
70 Id. at 122.
71 The Court explained that, under circumstances where the authorities simply “reexamine” the materials discovered by a private
actor, id. at 119, the government has not intruded on any expectation of privacy that “has not already been frustrated.” Id. at 117.
72 Id. at 123 (explaining that Congress had criminalized the “private” possession of cocaine, making its possession illegitimate).
73 Id. The Court expressly limited its discussion to contraband. Id. at 123 n.23.
74 Id. at 123-24. As Justice Stevens explained, “[t]he field test at issue could disclose only one fact previously unknown to the agentwhether
or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or
talcum powder.” Id. at 122.
75 Id. at 124 (emphasis added).
76 See George M. Dery III, Who Let the Dogs Out The Supreme Court Did in Illinois v. Caballes by Placing Absolute Faith in
Canine Sniffs, 58 Rutgers L. Rev. 377, 403-06 (2006) (addressing the various factors affecting the accuracy of drug-detector dogs);
see also Illinois v. Caballes, 543 U.S. 405, 411 (2005) (Souter, J., dissenting) (observing that “[t]he infallible dog, however, is a
creature of legal fiction”). Justice Souter cataloged lower court cases in which surprisingly high error rates failed to result in a
finding of unreliability. See id. at 412.
77 543 U.S. 405, 409 (2005). The Caballes majority opinion was authored by Justice Stevens, who also wrote the majority opinion in
United States v. Jacobsen, 466 U.S. 109 (1984). Caballes was a six-to-two decision in which Chief Justice Rehnquist did not
participate.
78 Caballes, 543 U.S. at 406.
79 Id.
80 Id. at 407 (observing that “[h]ere, the initial seizure of respondent when he was stopped on the highway was based on probable
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