Canine Sniffs: The Search that Isn't
Of late I have had a number of cases involving canine sniffs. They are frustrating since we all know they are searches but the prosecutors and officers know they can get away with sniffs because appellate courts have said they can. As one of them said to me a few weeks back with a happy grin, "Ah, yes, dogs: the search that isn't a search." In the jurisdiction wherein my primary practice is located the street drug officers use this to their maximum advantage. They travel in packs and stop a car because there is an air freshener or rosary hanging from the rear-view mirror (they obstruct the view of the road) or some other reason which judges will pretend is real when they come to court. Often, the officer in uniform stops the car. As soon as the car is stopped the driver and passengers are "asked" or ordered to leave the vehicle "for officer safety." Usually at least two officers are outside the car at this time. Then, while the world's slowest computers are getting the driver's record, the dog is brought forward to sniff the car and people. Because that pesky Fourth Amendment doesn't apply to a dog you don't need a reason to use it to detect things you would never find otherwise.
Where did this all come from?
Well, in United States v. Place, the Supreme Court ruled that if you take someone's luggage for 90 minutes it exceeds the limit of a Terry search/seizure and is unconstitutional. Unfortunately, in dicta, the court reaches out and touches a question which is un-needed for this decision: whether a dog sniff is a search. The court basically states that there is no legitimate expectation of privacy in an illegal activity. It then goes on to opine that because nothing needs to be opened/exposed and the dog will only find illegal drugs it is sui generis and exposing luggage to a dog is not a search under the 4th Amendment. Therefore, no probable cause is necessary for this "Investigative procedure."
They might as well have said, "Release the hounds!!" Dog searches abound and courts back them up. In Virginia the case on point is Brown v. Commonwealth, 15 Va.App 1 (1992)(en banc) which holds (1) that there is no reasonable expectation of privacy in the airspace around a vehicle, (2) reasonable articulable suspicion is not required for a dog sniff of an enclosure which might have drugs, and (3) "[n]othing in the Fourth Amendment prohibits a law enforcement officer from using trained canines to augment the sensory faculties bestowed on the officer at birth."
The first Brown point is just a restatement of the plain view doctrine for odors. If an officer walks up to your car and it reeks of marijuana there is probable cause.
The second Brown point finds some solace in Indianapolis v. Edmond. While finding drug checkpoints unconstitutional, the Court, again in dicta, states that the fact that dogs are walked around the outside of vehicles did not transform the seizure into a search. However, this question has never been directly addressed by the Supreme Court.
The third Brown "supersense" point is just poor reasoning. Almost any investigative tool (constitutional or not) can in some way be characterized as an augmentation of the officer's senses to a point which they could not reach naturally. In Katz, the prototypical 4th Amendment case, the officers listened to a man's conversation through a device attached to a phone booth. This made something audible which an officer without augmented hearing could not hear (evidence suppressed because of reasonable expectation of privacy).
(1) Are dog sniffs of a person a search?
(2) How does Kyllo affect the dog sniff doctrine?
(3) Illinois v. Caballes, what will it decide as to dog sniffs?