27 April 2004

J.S. was kind enough to drop me a line in reference to my comments about canine sniffs here and here.

He points out that the Ninth Circuit follows Place. He is correct. I did not mean to leave ya'll with the impression that it doesn't. My point was that the 9th has held that the sniff of a person is an unconstitutional search. In BC v. Plumas County (1999), the 9th doesn't put much original thought into it - it just adopts the 5th Circuit's standard.

He also disagrees with me as to whether the dog sniff language in Edmond is dicta. He says that "[i]t was necessary to resolution of the case, so the Court did not have to reach the search issue." Unfortunately, after having looked over Edmond again I find that I cannot agree with him. I think that part of our disagreement rises from the fact that Edmond is, IMHO, poorly written (yeah, I know it's easy to snipe from the outside). It just lumps searches and seizures in together without deciding the case specifically upon one or the other. However, the interest at stake in a road-block case is an unconstitutional seizure. Curiously, the majority seems to recognize this in its opening paragraph when it talks about "suspicionless seizures at highway checkpoints" but it does not seem able to cleave to the point in its analysis. In determining whether a "suspicionless seizure" for "primarily general crime control purposes" is constitutional it just isn't relevant whether the dog sniff was a search or not.

I may be wrong. I have been before (in fact a judge told me I was today). Still, this is my reading of the issues in a road-block case.

J.S. also pointed me toward what looks like a very interesting case out of the 9th concerning Kyllo and Place. I'm off to read it now. More soon . . .

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