Canine Sniffs: The Search that Isn't Part II
Unsurprisingly, the courts fell right in line with the dicta from Place and Edmond. What has been surprising is the dearth of cases addressing whether a canine sniff of a person is a search. The only authority for the proposition that a sniff of a person is not search comes from the 7th Circuit, Doe v. Renfrow, 631 F.2d 91(7th Cir. 1980), cert. denied, 451 U.S. 1022 (1981). The 5th and 9th Circuits have held that a sniff of a person is a search. The 5th Circuit in particular has long standing, well reasoned precedents holding that the Fourth Amendment applies with its fullest vigor against any intrusion on the human body and a dog sniff is unconstitutional "when there is no individualized suspicion." Horton v. Gross Creek Independent School District, 690 F.2d 470 (5th Cir 1982).
Horton's reasoning foreshadowed the Supreme Court's finding in Kyllo v. United States. In Kyllo the Supreme court holds that there is an added expectation of privacy in a person's house and that "obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search–at least where (as here) the technology in question is not in general public use." The dissent points out that this "would . . . embrace potential mechanical substitutes for dogs trained to react when they sniff narcotics. But . . . a dog sniff discloses only the presence or absence of narcotics does not constitute a search within the meaning of the Fourth Amendment, and it must follow that sense-enhancing equipment that identifies nothing but illegal activity is not a search either. Nevertheless, the use of such a device would be unconstitutional under the Court’s rule." The unstated inference is that Kyllo puts all the case law which has developed from the Place dicta in danger - at least when there is a heightened expectation of privacy. Personally, I am of the opinion that a technological tool and a biological tool are indistinguishable, except perhaps on an emotional level.
The Federal Supreme Court has finally accepted a case which directly addresses the question of canine sniffs in Illinois v. Caballes.
The Case Under Review: The Supreme Court of Illinois reviewed a decision by the Illinois appellate court which held that "the police did not need reasonable articulable suspicion to justify the canine sniff and that, although the criminal history check improperly extended defendant's detention, the delay was de minimis." The Illinois Supreme Court applied a two part Terry test: "(1) whether the officer's action was justified at its inception and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place." As well it stated that "[t]he State bears the burden of establishing that the conduct remained within the scope of the stop." Applying this standard the Court reversed finding "the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation because there were no specific and articulable facts to support the use of a canine sniff."
In my opinion, there is no reason why canine sniffs are different from any other kind off searches. The Federal Supreme Court's unjustified belief that dogs are infallible and will only lead to the exposure of illegal drugs is wrong. If you've been reading this blawg for a while you know I'm in the middle of a case wherein the dog failed to properly indicate one location where drugs were and indicated on one person who was searched and had no drugs on him. While I admire the officer's loyalty to her dog, dogs do make false positives. Although I don't have the case law at my fingerprints (I'm at home at the moment), I recall that cases have held that high percentages of failures are considered acceptable (40% comes to mind but needs verification). [ Addendum: United States v. Limares, 269 F.3d 794 (7th Cir. 2001)(62% accuracy is sufficient).]
Hopefully, the Supreme Court will apply some common sense and rule that canine sniffs are indeed searches, requiring probable cause. Failing that, if the Court persists in its investigative procedure fiction, we can hope that, at the very least, it will approve the Illinois Supreme Court's analysis and require at least the minimal check on canine sniffs of requiring reasonable articulable suspicion based on objective factors indicating drug presence. Or maybe the Court could go way out on a limb and rule that if you pull someone over for a traffic infraction you cannot exceed the scope of that stop in any way unless there is a clear indication of some sort of criminal activity (imagine the howls which would come if traffic stops were limited only to - gasp!! - traffic matters). Yes, I know the third is a crazy pipe dream, but I guess at some level I'm still a little bit of an idealist holding onto the idea that the 4th Amendment means what it says.