UNIVERSITY OF THE DISTRICT OF - UDC Law Review

108 See, e.g., Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 477 (5th Cir. 1982) (contrasting the sniff of a schoolchild’s
person with a luggage sniff at an airport and observing that “[o]ther circuits have emphasized the minimal humiliation entailed in
dogs sniffing unattended luggage”).
109 See, e.g., Langley v. State, 735 So. 2d 606, 607 (Fla. Dist. Ct. App. 1999) (detailing that a suspect encountered six officers and a
police dog while sitting on the steps of her mobile home, and “she was afraid of the dog”).
110 In Place, Justice Brennan pointed out that “[a] dog adds a new and previously unobtainable dimension to human perception” and
therefore represents an additional intrusion into privacy. Place, 462 U.S. at 719-20 (Brennan, J., concurring).
111 533 U.S. 27 (2001). In fact, the only post-Kyllo case that concludes that a canine home-sniff is a “search” under the Federal
Constitution is State v. Rabb, 920 So. 2d 1175 (Fla. 4 th Dist. Ct. App.), cert. denied, 549 U.S. 1052 (2006). United States v. Thomas
is a pre-Kyllo case, but its reasoning is consistent with Kyllo’s concerns about gaining information about the interior of a home.
United States v. Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985) (observing that “[w]ith a trained dog police may obtain information
about what is inside a dwelling that they could not derive from the use of their own senses”).
112 See supra note 7 (listing courts that find a canine sniff of a private residence is not a “search” under the Federal Constitution); see
also Rabb, 920 So. 2d at 1190 (describing the reliance on the Place/Jacobsen binary search approach as representing a
“fundamental philosophical divide” from the privacy-based analysis of the Rabb majority).
113 A thermal imager is a handheld device, similar to a video camera, that detects infrared radiation. Kyllo, 533 U.S. at 29. The device
detects only heat emanating from the exterior of the home, however, and is not able to penetrate walls or windows. Id. at 41 n.1
(Stevens, J., dissenting).
114 Id. at 30 (majority opinion). “The scan showed that the roof over [Kyllo’s] garage and a side wall of [his] home were relatively hot
compared to the rest of [his] home and substantially warmer than [his neighbors’ residences].” Id.
115 Id. at 40.
116 Id. at 33-34 (observing that “[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of technology”). The majority pointed to the aerial surveillance cases as
examples of technology (human flight) that had enabled police to view uncovered areas of the home or curtilage that had
historically gone unobserved. Id. at 34.
117 Id.
118 Id. (citation omitted) (quoting Silverman v. United States, 365 U.S. 505, 512 (1961)).
119 Id. at 35-36 (observing that “[r]eversing [Katz’s] approach would leave the homeowner at the mercy of advancing technologyincluding
imaging technology that could discern all human activity in the home”).
120 Id. at 41 (Stevens, J., dissenting) (arguing that “[t]here is, in my judgment, a distinction of constitutional magnitude between
‘through-the-wall surveillance’ that gives the observer or listener direct access to information in a private area, on the one hand,
and the thought processes used to draw inferences from information in the public domain, on the other hand”). Justice Stevens also
described the inferences as “indirect deductions,” id., and the “mental process of analyzing data obtained from external sources.”
Id. at 49.
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