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135 Id. 136 Id. at 710. 137 Id. at 716 (emphasis added). 138 See United States v. Jacobsen, 466 U.S. 109, 123 n.23 (1984) (expressly limiting the Court’s discussion to “possession of contraband”). 139 See Karo, 468 U.S. at 716 (arguing against the use of police technology to determine, among other things, whether a particular person “is in an individual’s home at a particular time”). 140 Payton v. New York, 445 U.S. 573, 603 (1980) (holding that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within”). 141 See Steagald v. United States, 451 U.S. 204, 205 (1981). The search warrant required in Steagald was necessary to protect the privacy interests of a third person whose home was entered by police in order to arrest a fugitive, not the privacy interests of the fugitive. Id. at 222. 142 Radio Frequency Identification (RFID) technology uses radio frequencies to identify people or objects by reading a microchip in a wireless device from a distance, without making any physical contact or requiring a line of sight. Data Privacy & Integrity Advisory Comm., U.S. Dep’t of Homeland Sec., No. 2006-02, The Use of RFID for Human Identity Verification 2, 5 (2006), available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_advcom_ 12-2006_rpt_RFID.pdf; see also U.S. Dep’t of Homeland Sec., Radio Frequency Identification (RFID): What Is It, http:// www.dhs.gov/files/crossingborders/gc_1197652575426.shtm (last visited May 19, 2010). When in the presence of an appropriate radio frequency, a microchip embedded in an object responds to the signal by sending information to a device capable of interpreting the microchip’s signal. Data Privacy & Integrity Advisory Comm., supra, at 2. Differing RFID chips can be read from different distances: “[s]ome can only operate over a very short distance of a few centimeters or less, while others may operate at longer distances of several meters or more.” Id. 143 U.S. Dep’t of Homeland Sec., Privacy Impact Assessment for the Use of Radio Frequency Identification (RFID) Technology for Border Crossings 8 (2008) available at http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_ rfid.pdf (identifying “tracking” as “a form of secondary use that exploits the uniqueness of the RFID number to associate a specific individual with specific places over time”). 144 The “Enhanced Driver’s License (EDL)” is embedded with an RFID chip and capable of submitting information, including personal information documents. Id. at 2. Some states have already passed legislation addressing EDLs. See, e.g., Mich. Comp. <strong>Law</strong>s Ann. § 28.301-.308 (LexisNexis 2010). 145 See In re Application of U.S. for an Order Authorizing (1) Use of Pen Register and Trap and a Trace Device with Prospective Cell- Site Information, No. MISC. 09-104, 2009 WL 1530195, at *4 (E.D.N.Y. Feb. 12, 2009) (finding that in the trap and trace context, cell phone locational technology--commonly known as “pinging” of a suspect’s cell phone--was more precise than a global positioning system device and, therefore, required a showing of probable cause to obtain a court order because the suspect’s movements inside the home could be tracked). 146 Douglas v. City of Jeannette, 319 U.S. 157, 181 (1943) (Jackson, J., concurring). 162
147 462 U.S. 696 (1983). 148 See infra note 344 and accompanying text. 149 See Arizona v. Gant, 129 S. Ct. 1710, 1714 (2009); cf. Illinois v. Caballes, 543 U.S. 405, 410 (2005) (Souter, J., dissenting) (observing that “[w]hat we have learned about the fallibility of dogs in the years since Place was decided would itself be reason to call for reconsidering Place’s decision”). 150 The term, “sui generis,” is defined as: “Of its own kind or class; unique or peculiar.” Black’s <strong>Law</strong> Dictionary 1572 (9th ed. 2009). 151 Interestingly, several pre-Place lower courts specifically mentioned errors made by detection dogs, but viewed such mistakes as harmless since the mistakes were actually false negatives rather than false positives. See, e.g., United States v. Beale, 674 F. 2d 1327, 1334 (9th Cir. 1982) (observing that “any mistake is one of omission, favoring the suspect”), vacated, 463 U.S. 1202 (1983) (vacating the judgment and remanding for further consideration in light of United States v. Place); see also United States v. Jodoin, 672 F.2d 232, 236 (1st Cir. 1982) (quoting dog handlers as saying “dogs are not foolproof, they are less accurate on hot muggy days, and drug traffickers have found ways to mask the odors of contraband to fool detection efforts” (internal quotation marks omitted)); United States v. Bronstein, 521 F.2d 459, 463 (2d Cir. 1975) (observing that while a detection dog “may be in error[,] her mistake favors the suspect”). 152 See Thomas H. Peebles, The Uninvited Canine Nose and the Right to Privacy: Some Thoughts on Katz and Dogs, 11 Ga. L. Rev. 75, 100 (1976) (describing the fact that “mistakes work in favor of the suspect” as the key difference between canine sniffs and other forms of surveillance); Max A. Hansen, Comment, United States v. Solis: Have the Government’s Supersniffers Come Down with a Case of Constitutional Nasal Congestion, 13 San Diego L. Rev. 410, 417 (1976) (observing that “[w]here the use of drug detection dogs is concerned, the first objection [regarding canine reliability] is lessened because a detector dog’s mistake usually benefits the criminal”). 153 United States v. Jacobsen, 466 U.S. 109, 123 (1984) (observing that “[i]t is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised”); see also United States v. Place, 462 U.S. 696, 707 (1983) (observing that such a sniff discloses only “limited” information because it “discloses only the presence or absence of narcotics, a contraband item”). 154 See Place, 462 U.S. at 707. 155 See Illinois v. Caballes, 543 U.S. 405, 411 (2005) (Souter, J., dissenting) (“The infallible dog, however, is a creature of legal fiction.”). Justice Souter documented cases in which dogs were accepted by a court as reliable with an accuracy rate of 71%, see United States v. Kennedy, 131 F.3d 1371, 1378 (10th Cir. 1997), an error rate of 8% over a dog’s entire career, see United States v. Scarborough, 128 F.3d 1373, 1378 n.3 (10th Cir. 1997), and an error rate of between 7% and 38%, see United States v. Limares, 269 F.3d 794, 797 (7th Cir. 2001). Caballes, 543 U.S. at 411-12. 156 See, e.g., United States v. Koon Chung Wu, 217 F. App’x 240, 246 (4th Cir.) (accepting as “reliable” a drug-detection dog with demonstrated field accuracy of 67% and observing that “[b]ecause the probable cause-standard does not require that the officer’s belief be more likely true than false, ... an accuracy rate of sixty percent is more than reliable enough for Cody’s alert to have established probable cause” (internal quotation marks omitted) (citation omitted)), cert. denied, 551 U.S. 1110 (2007); United States v. Cantrall, 762 F. Supp. 875, 882 (D. Kan. 1991) (accepting as reliable any detection percentage over fifty percent, along with dog training and certification in narcotics detection). 157 See, e.g., State v. Jardines, 9 So. 3d 1, 5 (Fla. 3d Dist. Ct. App. 2008) (“Dogs have been used to detect scents for centuries all without modification or ‘improvement’ to their noses. That, perhaps, is why the Supreme Court describes them as ‘sui generis’ in Place.”), review granted, 3 So. 3d 1246 (Fla. 2009); People v. Jones, 755 N.W.2d 224, 228 (Mich. Ct. App. 2008) (describing 163
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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
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homeowner would even care if anybod
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4 This view comports with that of a
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unless the dog sniff itself infring
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probable cause to stop the car for
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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 and 152: 6 See People v. Dunn, 564 N.E.2d 10
Page 153 and 154: 27 See Robert C. Bird, An Examinati
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: 121 Id. at 37 n.4 (majority opinion
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
Page 195 and 196: ackyard of the building was complet
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
Page 203 and 204: 22 Young v. Harrison, 284 F.3d 863
Page 205 and 206: 37.1 McKenney v. Harrison, 635 F.3d
Page 207 and 208: (1983); State v. Eddy, 519 A.2d 113
Page 209 and 210: 68 Dinkens v. State, 291 So.2d 122
Page 211 and 212: 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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