The Fourth Amendment, canine olfaction, and vehicle stops: time is of the es'scents'.

AuthorScheiner, Craig I.
PositionPolice dogs - Florida

One of the unintended consequences of the current emphasis on dogs as agents of social control is the increasing possibility that they may contribute to compromising one of our most cherished values--privacy.... Under the pretext of public safety, security dogs could be used to allow the state to move increasingly into the most private realms." (1)

Upon being stopped for a traffic infraction, many of Florida's motorists likely imagine the worst-case scenario to be the issuance of a citation. (2) Furthest from their mind is a concern that, in the absence of suspicion of criminal activity, a police dog will sniff the exterior of their vehicle in an effort to detect the presence of controlled substances. Be that as it may, nowadays this method of police investigation is commonplace because, by all accounts, K-9s are assuming an ever-growing role in the enforcement of laws on Florida's roadways.

In one Gulf coast city:

After a marked cruiser stopped a vehicle for an observed traffic infraction, one or more detectives would approach the vehicle, ask the driver to exit, and instruct the driver to accompany them to the area of the police cruiser. Having identified themselves as members of the drug interdiction unit and explained the reason for the traffic stop, the detectives would request the motorist's consent to search the vehicle for narcotics. If the motorist granted permission, one detective would search the vehicle while another completed a computer check of the vehicle and driver. If the motorist denied permission, a narcotics detection dog would be summoned to sniff the exterior of the vehicle. (3)

Unbeknownst to most of the motoring public, the duration of both criminal and noncriminal traffic stops is of tremendous constitutional importance, for a matter of minutes may decide the legality of a K-9 sniff.

Superior Nasal Appraisal!

In 1970, police dogs made their drug-detection debut with the U.S. Customs Service. (4) And despite the notorious duties (i.e., those into which they can sink their teeth) to which K-9s have been assigned, more often than not, it seems, police dogs are portrayed and perceived in a positive light. (5) Indeed, because of their sensational contributions to law enforcement, K-9s have risen to prominence.

A dog's nose is uniquely equipped to detect the faintest of odors. Dogs possess potentially billions of chemical receptors called olfactory cells.... Laid out, the surface area of these cells would cover a space the area of the skin on the dog's body. In comparison, the surface area of human olfactory cells would cover no more than a postage stamp.... Little doubt exists that dogs have the ability to detect the smallest traces of odors and to perceive these scents much better than human beings. (6)

Unbridled confidence in K-9s is not recommended, however, for as impressive as dogs' drug-detection accuracy may be, evidence indicates that they are not infallible. (7) As a matter of fact, the police canine may have to contend with competition from other animals. "Some law enforcement agencies have begun to use Vietnamese potbellied pigs to detect narcotics.... Porcine handlers report that pigs are `better at sniffing out drugs than any dog they have ever found.'" (8) Perhaps, in the future, all drug-detection animals will be replaced by the gas chromatographer, a.k.a. the "electronic canine. (9) In any ease, for the time being, the police dog is one of the more potent weapons in the prosecutor's arsenal. (10)

The U.S. Supreme Court and the K-9 Sniff

In the face of widespread apprehension over K-9 olfaction's encroachment on privacy and dignity, the highest court in the land and its oft-faithful Fourth Amendment disciples, such as Florida, have remained steadfast in their approval of drug-sniffing dogs. Florida's fidelity is commanded by Art. I., [section] 12 of the Florida Constitution, whose search and seizure strictures are essentially identical to those set forth by the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the Fourth Amendment to the United States Constitution. (Emphasis added.)

Fla. Const. Art. I., [section] 12.

In spite of [section] 12's adoption of the High Court's search-and-seizure jurisprudence, it may be argued that, from time to time, the Florida Supreme Court parts ways with the U.S. Supreme Court. See, e.g., Arizona v. Evans, 514 U.S. 1, 3 (1995) (holding that a court employee's error does not invoke the Fourth Amendment exclusionary rule); Shadier v. State, 761 So. 2d 279, 280 (Fla. 2000) (holding that a Department of Highway Safety and Motor Vehicles employee's error does invoke the Fourth Amendment exclusionary rule). Only time will tell if canine olfaction is an area in which the Court and the Sunshine State are in complete accord.

In United States v. Chadwick, 433 U.S. 1, 4 (1977), canine sniffing, though not determinative of the outcome, was an element of the factual background. (11) But it was not until 1983, in United States v. Place, 462 U.S. 696 (1983), that the U.S. Supreme Court first engaged the constitutionality of K-9 olfaction. The Place Court extended the Terry doctrine (Terry v. Ohio, 392 U.S. 1 (1968)) to the investigative detention of personal property--specifically, airport luggage--and indicated that a dog sniff of such property is not a Fourth Amendment search, but still ruled unconstitutional the 90-minute detention of luggage because of the investigating officers' lack of diligence in securing a K-9. (12) Influenced heavily by the pressures of the war on drugs, the Court--through its all-too-familiar dictum in Place--exempted the "one-of-a-kind" dog sniff from the protection of the Fourth Amendment.

[T]he manner in which information is obtained through [a canine sniff] is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. (13)

A detail that should not be overlooked is that the seeds of the Place dictum were sown in an earlier case, Florida v. Royer, 460 U.S. 491,506 n.10 (1983).

[W]e hold here that the officers had reasonable suspicion to believe that Royer's luggage contained drugs, and we assume that the use of dogs in the investigation would not have entailed any prolonged detention of either Royer or his luggage which may involve other Fourth Amendment concerns. In the case before us, the officers, with founded suspicion, could have detained Royer for the brief period during which Florida authorities at busy airports seem able to carry out the dog-sniffing procedure.

As one might expect from the typically fractured Court, especially in the context of searches and seizures, the Royer and Place dicta were not well-received by several Justices, the most outspoken of whom was Justice Brennan. "[C]ontrary to the plurality's apparent suggestion, I am not at all certain that the use of trained narcotics dogs constitutes a less intrusive means of conducting a lawful Terry investigative stop." Royer, 460 U.S. at 511 (Brennan, J., concurring in result). One year after Place, Brennan echoed his uneasiness: "[The Court's K-9 sniffing] dictum in Place was dangerously incorrect." United States v. Jacobsen, 466 U.S. 109, 136 (1984) (Brennan, J., dissenting). And once again, Justice Brennan's frustration with the Court's propensity for adding odor-related dictum resurfaced in United States v. Johns, 469 U.S. 478, 489 (1985) (Brennan, J., dissenting) (disagreeing with the Court's decision to uphold a warrantless search of packages three days after they were initially impounded).

While they did concur in the Place result, Justices Brennan, Marshall, and Blackmun protested the prematurity of the Court's "no-search" categorization of the K-9 sniff. (14) Untimely or not, this classification is now firmly rooted in Fourth Amendment jurisprudence. See, e.g., Kyllo v. United States., 121 S. Ct. 2038, 2050 (2001) (Stevens, J., dissenting) ("But in United States v. Place, we held that a dog sniff that `discloses only the presence or absence of narcotics' does `not constitute a search within the meaning of the Fourth Amendment'....") (Citation omitted.); Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) ("Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is much less intrusive than a typical search.") (Citations omitted.); Bond v. United States, 529 U.S. 334, 341...

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