Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs

• Publication year: 2021

85 Nebraska L. Rev. 735. Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs

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Lewis R. Katz(fn*) and Aaron P. Golembiewski(fn**)

Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs

TABLE OF CONTENTS

I. Introduction .......................................... 736 R
II. The Law .............................................. 739 R
A. United States v. Place ............................. 739 R
B. United States v. Jacobsen .......................... 743 R
C. Illinois v. Caballes ................................ 746 R
III. The Drug Dog ........................................ 750 R
A. A Dog Sniff is Not a Minor Intrusion .............. 752 R
B. A Trained Drug Dog Does Not Only Alert to
Contraband ....................................... 754 R
C. A Well-Trained Dog is Not Extremely Accurate
When Alerting to Illegal Drugs .................... 757 R
1. False-Alert Rates .............................. 757 R
2. Certification as a Substitute for False-Alert
Data .......................................... 759 R
3. Handler Error ................................. 762 R
IV. The Home ............................................ 765 R
A. Kyllo v. United States ............................. 766 R
1. Kyllo as Protecting Privacy in the Home ....... 768 R
2. State v. Rabb: Applying Kyllo to Drug Dogs .... 769 R
3. Fitzgerald v. State: Kyllo Inapplicable to Dog
Sniff of Home .................................. 773 R
4. The Supreme Court Fails to Bark When
Considering Sniffs of the Home ................ 774 R
B. The Impact of Rabb on Kyllo ...................... 775 R

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V. Dog Sniffing of Schoolchildren ......................... 777 R
A. The Existing Law ................................. 778 R
B. Arriving at a General Rule Pertaining to Dog Sniffs
of Schoolchildren .................................. 785 R
VI. Dog Sniffing of Motorists and Pedestrians ............. 787 R
VII. Conclusion ............................................ 791 R

I. INTRODUCTION

Privacy is fast becoming the most illusive aspect of life for Americans. The concept of the American way of life was built upon the right to be left alone. That right is currently threatened by both government and private entities. When it comes to government encroachment upon the right, we look to the Fourth Amendment to regulate and protect against unreasonable encroachments, and we look to the Supreme Court to define the Fourth Amendment's terms. For the past three decades, that Court has applied a cramped definition of "search," thereby excluding common government investigative techniques from the protection of the Fourth Amendment.(fn1) One such application has excluded dog sniffs(fn2) for illegal drugs from the term "search." With that leeway, police are utilizing dogs much more frequently to detect illegal drugs and in contexts never considered by the Court when it defined dog sniffs as being outside of the Fourth Amendment.

In 1983, the Supreme Court exempted dog sniffs from the reasonableness requirement of the Fourth Amendment.(fn3) The Court stated that the dog sniff of a piece of luggage is not a search subject to the Fourth Amendment because a dog sniff is a limited intrusion capable

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only of accurately determining whether or not the luggage contains contraband.(fn4) That statement was not central to the case.(fn5) Although the luggage had been properly seized based on reasonable suspicion, the Court held that the extended detention of the piece of luggage was unreasonable. That the statements pertaining to dog sniffing were not central to the decision in Place is a fact that has been consistently ignored by the more than 2,000 cases citing to United States v. Place for its proposition about dog sniffs. Thus, a case seemingly limited to determining the limits of a seizure of a suitcase on less than probable cause has become the cornerstone of the categorical elimination of judicial oversight of police canine units. Today canine units operate almost without any legal controls, expanding a doctrine created only for luggage to the arbitrary use of dogs on vehicles, homes, and persons at the unlimited discretion of a police officer.(fn6)

The Place doctrine is based on three specific principles attributed to a dog sniff that render it "sui generis": a dog sniff is a minimal intrusion; a dog only sniffs for the presence of contraband; and, by implication, a dog is highly accurate.(fn7) In fact, a dog sniff fails on all three

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accounts, rendering the theoretical basis offered by Justice O'Connor meaningless.

In 2003, the Place doctrine resulted in a raid on a South Carolina high school in a small community known as Goose Creek. Captured on surveillance cameras, students were thrown to the ground by police officers and subjected to dog sniffs led by teams of administrators and police officers in an unsuccessful effort to root out the school's "drug problem."(fn8) Twenty years of very limited judicial oversight of canine units is directly responsible for the violent intrusion of liberty and privacy in Goose Creek, a practice the Supreme Court has since validated when dog sniffs are applied to vehicles and homes.

In 2005, the Place doctrine stained the last stronghold of privacy when the Court summarily and without opinion applied the Place doctrine to the home in Florida v. Rabb.(fn9) Without explanation, the Supreme Court applied a doctrine intended for impersonal luggage to the home, the locus of heightened Fourth Amendment protection as reemphasized merely four years earlier in Kyllo v. United States with broad statements such as the following: "`At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.' "(fn10) Following the Supreme Court's summary reversal of Rabb, the Florida Court of Appeals reconsidered the issue and held its ground, again upholding the trial court's granting of the motion to suppress the warrant based upon the dog sniff of the defendant's home.(fn11) The United States Supreme Court denied the state's petition for certiorari, letting the state decision stand seemingly in conflict with the Court's earlier summary reversal.

The purpose of this Article is to reexamine the analytical reasoning behind Justice O'Connor's conclusion that a drug dog is "sui generis." Part II of this Article revisits the Place decision and the case law which has extended Place. Part III examines the drug dog in terms of the accuracy of Justice O'Connor's three-prong analysis which served to place a dog sniff outside the reach of the Fourth Amendment. Parts IV, V, and VI examine whether dog sniffs of homes, students, and

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other persons--subjects historically deserving Fourth Amendment protection--should follow the Place doctrine. This Article concludes by suggesting that the Place analysis was based upon a foundation of sand, and not only should Place not be extended, it should be overturned, thereby allowing traditional Fourth Amendment standards to control the use of drug dogs.(fn12)

II. THE LAW

A. United States v. Place

Place involved police at two airports whose "suspicions" were aroused by the defendant's behavior. When the defendant refused to consent to Drug Enforcement Agency (DEA) agents searching his suitcases at the second airport,(fn13) agents at LaGuardia airport in New York seized the suitcases and informed the defendant they intended to obtain a search warrant. However, at the time of the seizure, there was no basis for probable cause and a warrant could not have been obtained. The agents removed the suitcases to Kennedy airport where they were sniffed by a drug-detection dog; the dog alerted positively to one suitcase and ambiguously to the other. The dog sniff took place on a Friday afternoon, and the agents held the bags until Monday when a search warrant was obtained. A search of the suitcase that had tested positively disclosed a large quantity of powder cocaine.(fn14)

First, the Supreme Court upheld the seizure of the suitcases on reasonable suspicion, extending Terry v. Ohio,(fn15) which had allowed for a brief seizure of a person for investigative purposes where there are facts and circumstances (as opposed to inarticulate hunches) giving rise to reasonable suspicion that the suspect has committed or is about to commit a crime. The purpose of a Terry seizure is to confirm or dispel the suspicion. Terry also allows a limited pat-down search of the suspect where there is reasonable suspicion to believe that the

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suspect may be armed.(fn16) The extension in Place allows a seizure on reasonable suspicion that the suitcase may contain evidence, entirely divorced from the protection of the police officer which girded the limited search in Terry.(fn17) Further, the Court held that a brief seizure of the luggage to subject it to further investigation--here the drug dog-- was permissible under Terry's rationale of allowing a brief detention to confirm or dispel the reasonable suspicion. The Court held that the ninety-minute seizure of the defendant's luggage was too long and hence unreasonable under the Terry standard.(fn18)

However, Justice O'Connor, writing for the majority, went beyond the issues necessary to decide the case, unilaterally issuing a general

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approval of the use of drug dogs to sniff out contraband,(fn19) based on broad and unsupported conclusions: 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. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here--exposure of...