To sniff or not to sniff: making sense of past and recent state and federal decisions in connection with drug-detection dogs - where do we go from here?

• Author: Zanello, Lindsay N.
• Position: NOTE

1. INTRODUCTION

   As law enforcement investigatory tools have become more enhanced, (1) courts have been faced with Fourth Amendment issues and have attempted to place limits on law enforcement when it comes to searches and seizures. (2) One such tool involves dogs. Canine sniffs can play an important role in uncovering illegal contraband, especially drugs. After receiving extensive training, drug-detection dogs can easily uncover various types of illegal substances, including marijuana, hashish, heroin, and cocaine. (3) The major problem for law enforcement in their use of drug-detection dogs is that state and federal courts have issued conflicting decisions as to the proper application of the Fourth Amendment and similar provisions in state constitutions in connection with this type of natural sense enhancement. This note seeks to explore and reconcile the conflicts regarding the courts' various decisions involving drug-detection dogs.

   Part II provides an overview of the Fourth Amendment and specifically looks at important cases that have helped define what exactly constitutes a search, (4) with an emphasis on how the courts have moved away from simply protecting certain areas specified in the Fourth Amendment and toward what has become known as the "reasonable expectation of privacy" test. (5) Additionally, Part II discusses the difference between search warrants and warrantless searches; the justifications of probable cause and reasonable suspicion, the use of plain view, plain hearing, and plain smell doctrines; and concludes with a brief introduction to the enhancement of natural senses through technology and other tools. Part III discusses the use of dogs in law enforcement generally, focusing on breeds, purposes, and the training of detection dogs. Part IV explores detection dogs in conjunction with the Fourth Amendment and state constitutions, looking first at what the court means by the word "sniff." This part also explores whether or not the use of detection dogs constitutes a search as defined under the Fourth Amendment and state constitutions, whether an alert by a drug detection dog constitutes probable cause, and the conflicts between state courts and federal courts regarding these search issues. Part V concludes with recommendations on how to classify drug-detection dogs so that law enforcement officials can effectively use them in the future.

2. FOURTH AMENDMENT BACKGROUND

   The Fourth Amendment provides:

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (6) The Fourth Amendment is meant to protect the accused from violations by law enforcement personne (1,7) but deciphering what constitutes an unreasonable search or seizure can be complicated. (8) In fact, "[t]he Fourth Amendment has not changed, but courts keep reinterpreting it, especially the part about 'unreasonable searches and seizures.'" (9) 11 Some would suggest that the rules created by the courts have placed too difficult a burden on law enforcement, while others think the Fourth Amendment protection is not strong enough. (10)

   In the 1921 case Burdeau v. McDowel, (11) the Supreme Court held that the Fourth Amendment only applies to government action and not private searches. (12) It later determined in Mapp v. Ohio (13) that the Fourth Amendment's protections are not limited to the federal government and, through incorporation by the Fourteenth Amendment, they apply to state and local government action as well. (14) In fact, some states have more fully defined what constitutes state action as opposed to action by private citizens. (15) Until the (1970) s, all states seemed to follow the idea that the Fourth Amendment applied to state but not private action--all, that is, except Montana. (16) For example, in State v. Helfrich, (17) the Montana Supreme Court applied its own constitution and held that "the right of individual privacy explicitly guaranteed ... is inviolate and the search and seizure provisions ... apply to private individuals as well as law enforcement officers." (18) Therefore, in Montana--for several years, until the highest court ruled otherwise--regardless of whether the evidence was gathered by state or private actors using an illegal search, it was not admissible. (19) "No other state, however, has been willing to go that far." (20)

   This example shows that a state government can go farther than the federal government and offer more protections from searches and seizures--it just cannot offer less protection. In fact, a particular search may not violate the U.S. Constitution but may violate a more stringent state constitution, statute, or regulation. (21) A number of states, including New York, Vermont, Massachusetts, and California, have chosen to provide more protections for their citizens. As an illustration, the New York Constitution appears to offer greater protection than the U.S. Constitution. In fact, while article I, section (12) of the New York Constitution and the Fourth Amendment of the U.S. Constitution have similarities, (22) the New York provision provides additional protections including, for example, the interception of telephone and telegraph communications. (23)

   1. A Move from Protected Areas to Privacy Interests

      Courts have reinterpreted the Fourth Amendment and moved from discussions of "constitutionally protected areas" towards an interpretation that focuses on privacy. (24) "For many years, for a 'search' within the meaning of the Fourth Amendment to have taken place, the Supreme Court required a physical trespass by the government into a constitutionally protected area." (25) Therefore, early on, the Fourth Amendment simply protected homes and possessions (26) from unreasonable searches, including the area known as "curtilage, which is the land immediately surrounding and associated with the home." (27) The Fourth Amendment, however, does not protect "[o]pen fields." (28) Eventually, the courts began to widen the scope and have since included mail, a person's physical body, and intangible objects, (29) to name just a few additional protections. The Supreme Court noted in Mapp that the Fourth Amendment created a "right to privacy, no less important than any other right carefully and particularly reserved to the people." (30) The scope of privacy extended even further, thanks to Griswold v. Connecticut, (31) whereby the U.S. Supreme Court held that "the Fourth Amendment created 'zones of privacy,'" (32) which required the utmost constitutional protection. (33)

      As the courts moved away from interpreting the Fourth Amendment as a protection of certain areas to a protection of privacy in general, the case that redefined what constituted a search under the Fourth Amendment was Katz v. United States. (34) "Its impact ... has been exclusively on the subject of threshold applicability or coverage. It may not have altered the substantive law with respect to coverage, but it has changed dramatically the vocabulary we use when we talk about coverage." (35) In fact, Katz helped provide a definition for the word "search." Katz involved a warrantless electronic surveillance device that law enforcement officials placed on a public telephone booth, which was used to discover criminal violations by Katz. (36) Because the FBI could have very easily obtained a court order for this surveillance, the Court found that the FBI violated Katz's Fourth Amendment rights and, in stating that "the Fourth Amendment protects people, not places," (37) the Court created what has come to be known as "the reasonable expectation of privacy test." (38) Justice Harlan's concurring opinion, which explained the test, has been used by lower federal courts, state courts, and eventually the majority of the U.S. Supreme Court to interpret and apply this test. (39) In fact,

      [w]ithin a year, the Supreme Court started to use Harlan's "reasonable expectation of privacy" test as the standard in its Fourth Amendment jurisprudence. Within a decade, Harlan's test became so familiar that the Court officially recognized it as the essence of the Katz decision--a rare instance where a concurrence effectively replaced a majority opinion. (40) Justice Harlan set forth a two-part test: "[F]irst that a person ha[s] exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" (41) In United States v. White, (42) Harlan more fully fleshed out the meaning of a search: searches are "those more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of Fourth Amendment liberties." (43)

      The test set forth in Katz has been used by state courts as well, some of which follow its line of reasoning while others are critical of it. (44) For example, in Massachusetts courts have cited Katz when defining privacy. In Commonwealth v. Blood, (45) the court held that "[t]he privacy interests protected under art. 14 [of the Massachusetts Constitution] (and the Fourth Amendment) exist when it is shown 'that a person [has] exhibited an actual (subjective) expectation of privacy,' and when that 'expectation [is] one that society is prepared to recognize as 'reasonable.'" (46) A few years later, in Commonwealth v. Montanez, (47) the highest court in Massachusetts again used the Katz reasoning to find a subjective, but not an objective, reasonable expectation of privacy in "a space above a dropped ceiling in a common hallway outside defendant's apartment," so that the search of this area "did not constitute a search in the state constitutional sense." (48)

      New Hampshire's highest court, on the other hand, has "neither adopted nor rejected" the Katz...