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Jones, 755 N.W.2d at 226 n.2 (observing that “[t]here is no dispute that a positive reaction by a properly trained narcotics dog can establish probable cause to believe that contraband is present”). But see United States v. Olivas, No. 3:09-CR-1402-KC, 2009 U.S. Dist. LEXIS 62270, at *12 n.5 (W.D. Tex. July 17, 2009) (finding “merit to the argument that an alert from a detector dog, even when that dog is well-trained, cannot by itself constitute probable cause to search under any circumstances”). 210 See generally Carroll v. United States, 267 U.S. 132 (1925) (permitting police to slash upholstery of a vehicle in a search for illegal alcohol supported by probable cause). 211 See State v. Rabb, 920 So. 2d 1175, 1190 (Fla. 4 th Dist. Ct. App.) (observing that “[v]ehicles on public roadways and luggage in airports are simply different because the privacy to be invaded by government’s prying eyes is necessarily limited by the size of the vehicle or bag, plus only the effects of one’s traveling life chosen to appear outside the home and in public are at risk of exhibition”), cert. denied, 549 U.S. 1052 (2006). 212 See United States v. Jackson, No. IP 03-79-CR-1H/F, 2004 WL 1784576, at *5 (S.D. Ind. Feb. 2, 2004) (stating that a search warrant issued on the basis of a positive canine sniff of a residence would allow “of course, a top-to-bottom search of a home for controlled substances, which can be concealed almost anywhere, can be an extremely thorough intrusion into a home”). 213 United States v. Place, 462 U.S. 696, 707 (1983) (observing that the canine sniff revealed “limited” information about the contents of luggage, which “ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods”). 214 Cf. Fitzgerald v. State, 864 A.2d 1006, 1018 (Md. 2004) (refusing to consider the defendant’s argument that a drug-detection dog was trained to alert on diazepam, the generic for Valium, because the issue was not raised at trial). For further discussion, see NSW Ombudsman 2004, supra note 204, at 26, which documents a false-positive alert on a woman in Australia that was attributed to the fact that she was carrying her son’s ADD medication in her purse, and NSW Ombudsman 2006, supra note 204, at 52-53, which documents alerts on various prescription medicines, including flu medication, Valium, and methadone, and notes that “[a]lthough drug detection dogs are not trained to detect methadone or prescription drugs, we are not aware of any training performed to eliminate possible false positives with these drugs.” Cf. John M. Dunn, Illinois v. Caballes: The Day the Supreme Court Lost Its Dog Kyllo, 76 Okla. Bar J. 1791, 1794 (2005). [I]t is important to note that there are several prescription drugs that contain an amphetamine as the active ingredient. Drug dogs are trained to smell amphetamines in order to detect methamphetamines. However, Ritalin, Dexedrine and Adderall are drugs commonly used to treat Attention Deficit Disorder/Attention Deficit Hyperactive Disorder which contain amphetamines as their active ingredient.... Since the prescription medications are not contraband, their owner should enjoy a legitimate expectation of privacy. Id. (footnote omitted). 215 See Jennings v. Joshua Indep. Sch. Dist., 877 F.2d 313, 317 (5th Cir. 1989); Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 474 (5th Cir. 1982) (observing that the drug-detection dogs involved were “trained to alert their handlers to the presence of any one of approximately sixty different substances, including alcohol and drugs, both over-the-counter and controlled”). The plaintiff in Jennings argued that the detection canine was “capable of reacting to some nonprescription drugs and to residual scents lingering for up to four to six weeks.” Jennings, 877 F.2d at 317. The dog alerted to, among other things, asthma medication and a Primatene inhaler. Id. at 318. 216 See, e.g., Jennings, 877 F.2d at 318 (discussing the detection dog’s alert to beer caps, empty beer bottles and cans, and the scent of previously vomited beer); Horton, 690 F.2d at 474 (discussing alcohol). 217 Horton, 690 F.2d at 473. 218 See Doe v. Renfrow, 475 F. Supp. 1012, 1017 (N.D. Ind. 1979) (noting that the thirteen-year-old junior high school student, who was strip searched to look for drugs after a drug-detection dog alerted, had been playing with her own dog, which was in heat, prior 168
to school). 219 Cf. Katz & Golembiewski, supra note 38, at 754-55 (discussing the inability of a detection dog to distinguish between illicit substances and pharmaceutical substances and noting that pharmaceutical substances may release the same odor as illicit substances). 220 Thirteen States have legalized medical marijuana. See Alaska Stat. §§ 11.71.090, 17.37.010 to 17.37.080 (2010); Cal. Health & Safety Code § 11362.5 (Deering 2010); Colo. Const. art. XVIII, § 14; Haw. Rev. Stat. Ann. §§ 329-121 to 329-128 (LexisNexis 2010); Me. Rev. Stat. Ann. tit. 22, § 2383-B(5) (2009); Mich. Comp. <strong>Law</strong>s Ann. § 333.26421 (LexisNexis 2010); Mont. Code Ann. §§ 50-46-101 to -210 (2010); Nev. Const. art. 4, § 38; N.M. Stat. Ann. §§ 26-2B-1 to -7 (West 2009); Or. Rev. Stat. §§ 475.300 to 475.346 (2009); R.I. Gen. <strong>Law</strong>s §§ 21-28.6-1 to - 11 (2010); Vt. Stat. Ann. tit. 18, §§ 4472-4474d (2009); Wash. Rev. Code Ann. §§ 69.51A.005 to 69.51A.080 (LexisNexis 2010). 221 Pub. L. No. 91-513, 84 Stat. 1242 (codified as amended 21 U.S.C. §§ 801-971 (2006)). The Court held that the CSA’s categorical prohibition of the manufacture and possession of marijuana would include even locally grown marijuana that was used for medical purposes, and that the CSA did not exceed Congress’s authority under the Commerce Clause. See Gonzales v. Raich, 545 U.S. 1, 15, 28 (2005). 222 Even the U.S. Department of Justice’s recent clear signal to federal prosecutors, in states that have enacted medical marijuana laws, to avoid investigation and prosecution of medical users, does not in any way eliminate the risk that a detection dog will alert on medical marijuana and that a broad search of the home may result. Memorandum from David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of Justice, to Selected United States Attorneys (Oct. 19, 2009), http://www.justice.gov/opa/documents/medicalmarijuana.pdf. 223 But see Fitzgerald v. State, 837 A.2d 989, 1028 (Md. Ct. Spec. App. 2003) (dismissing concerns that a canine sniff of a home might reveal medically prescribed marijuana as a “mere ‘remote’ possibility,” and observing that the marijuana in Place could “conceivably have been medically prescribed in a state such as California” (internal quotation marks omitted)), aff’d, 846 A.2d 1006 (Md. 2004). In reality, the idea that the Place Court predicted the future and factored medically prescribed marijuana into its two-paragraph canine sniff discussion, as the Fitzgerald court asserts, is the true “remote possibility.” 224 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). 225 See Payton v. New York, 445 U.S. 573, 586 (1980) (“It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” (internal quotation marks omitted)). 226 See United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); Payton, 445 U.S. at 590 (observing that “the Fourth Amendment has drawn a firm line at the entrance to the house”). 227 Oliver v. United States, 466 U.S. 170, 180 (1984) (observing that “[a]t common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life”’ (quoting Boyd v. United States, 116 U.S. 616, 630 (1886))). 228 Id. (discussing that curtilage “has been considered part of the home itself for Fourth Amendment purposes”). 229 Id. at 180 n.11 (observing that it was unnecessary under Oliver’s facts “to consider the scope of the curtilage exception to the open fields doctrine or the degree of Fourth Amendment protection afforded the curtilage, as opposed to the home itself”). 169
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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
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3 Kyllo was concerned with whether
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(500 grams and an unspecified amoun
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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 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: 199 As Justice Souter explained,
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
Page 213 and 214: 870 (1987). In such a case, the fac
Page 215 and 216: “Second, the agents had a legal r
Page 217 and 218: 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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