4/2/2012 2:34 PM
Notes
Interior-Vehicle Sniffs: Reining in the
Leash on Drug-Dog Sniffs and Searching
for the Search that Courts Have Yet to
Find
JESSICA ALFANO
ABSTRACT
Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Economics, Tufts
University (2008). I dedicate this Note to my grandfathers, Dr. Joseph G. DiStasio and Dr.
Louis F. Alfano Sr., whose lifetime achievements and work ethic are truly inspirational. I
thank my parents and family for their unconditional love and support, and I am grateful for
the hard work of my New England Law Review colleagues during the editing and revision
process. Lastly, this would not have been possible without my backbone, Michael Powell,
whose love and encouragement motivated me throughout the writing process and, of course,
my Rottweiler, Justice Powell.
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INTRODUCTION
ederal, state, and local law enforcement personnel have been using
canines for their exceptional sense of smell for many years in a wide
variety of tasks including: search and rescue missions, narcotics
detection, bomb finding, and contraband-agricultural-product detection.1
Since the U.S. military began training canines during World War II as
guards, messengers, mine detectors, scouts, and sled dogs, 2 canines have
become instrumental to law enforcement in this country. 3 In terms of drug
detection, trained drug dogs use their highly attuned sense of smell at the
direction of police handlers to find hidden drugs that a human investigator
might not otherwise detect.4 As such, drug-dog teams have become the
most widely used, broadly sensitive, accurate, fast, mobile, flexible, and
durable system available for detecting illegal drugs.5
However, although canine sense of smell may be far superior to
humans, it is not always perfect.6 It is well established that the Fourth
Amendment to the U.S. Constitution protects privacy in an array of
situations,7 and the U.S. Supreme Court has given canine sniffs a unique
universe, subject to a unique Fourth Amendment analysis.8 A strong
jurisprudential foundation exists upon which courts have determined that
1 Julio E. Correa, The Dogs Sense of Smell, ALA. COOP. EXTENSION SYS. 1-2 (June 2011),
http://www.aces.edu/pubs/docs/U/UNP-0066/UNP-0066.pdf (stating that a dog has more than
220 million olfactory receptors in its nose, whereas a human has only about five million and
defining olfaction as the act or process of smelling).
2 ANNA M. WALLER, DOGS AND NATIONAL DEFENSE 21 (1958).
3 See Charles Mesloh et al., Sniff Test: Utilization of the Law Enforcement Canine in the Seizure
of Paper Currency, 52 J. OF FORENSIC IDENTIFICATION 704, 708 (2002).
4 OFFICE OF THE CITY AUDITOR, PORTLAND POLICE BUREAU: DRUG TRAINING AID
PROCEDURES STRENGTHENED, RECENTLY IMPROVED PRACTICES SHOULD CONTINUE 2 (May 2010)
[hereinafter PORTLAND POLICE BUREAU], available at http://www.portlandonline.com/auditor/
index.cfm?a=301483&c=51639.
5 Charles Mesloh et al., Scent as Forensic Evidence and Its Relationship to the Law Enforcement
Canine, 52 J. OF FORENSIC IDENTIFICATION 169, 175 (2002) (citing M. Williams et al., Canine
Detection Odor Signatures for Explosives, SPIE CONFERENCE ON ENFORCEMENT & SECURITY
TECHNOLOGIES, Nov. 1998, at 291, 291).
6
Craig Scheiner, Time Is of the Esscents: The Fourth Amendment, Canine Olfaction, and Vehicle
Stops, FLA. B.J., Mar. 2002, at 26, 26; see also Andrew E. Taslitz, Does the Cold Nose Know? The
Unscientific Myth of the Dog Scent Lineup, 42 HASTINGS L.J. 15, 19 (1990).
7 Steven B. Dow, Step Outside, Please: Warrantless Doorway Arrests and the Problem of
Constructive Entry, 45 NEW ENG. L. REV. 7, 8 (2010); see, e.g., Roe v. Wade, 410 U.S. 113, 152
(1973); Katz v. United States, 389 U.S. 347, 356-57 (1967); Griswold v. Connecticut, 381 U.S.
479, 485-86 (1965).
8 Ken Lammers, Canine Sniffs: The Search That Isnt, 1 N.Y.U. J. OF L. & LIBERTY 845, 856
(2005).
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521
9 BLACKS LAW DICTIONARY 1572 (9th ed. 2009) (defining sui generis as of its own kind or
class).
10
12
Nina Paul & Will Trachman, Comment, Fidos and Fi-donts: Why the Supreme Court Should
Have Found a Search in Illinois v. Caballes, 9 BOALT J. CRIM. L. 1, 1-2 (2005).
13 See id. at 12 (*T+here remain compelling arguments for finding that at least some genres
of dog sniffs should be considered searches under the Fourth Amendment.).
14
Id.
522
I.
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15
23
24
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523
Nevertheless, the Supreme Court subsequently held that the police engage
in a presumptively unreasonable search under the Fourth Amendment
where they use sense-enhancing technology to obtain any information
regarding the interior of the home that could not otherwise have been
obtained without physical intrusion into a constitutionally protected
area, and the technology in question is not in general public use.25
Justice Scalias opinion makes clear the need to protect Fourth
Amendment privacy from being eroded by the use of police technology.26
B. Canine Sniffs Are Not Generally Searches Under the Fourth
Amendment.
Although a canine sniff accomplishes the same goal as mechanical
sense-enhancing technology, such as a thermal imager, the U.S. Supreme
Court has taken a different approach to canine sniffs as an investigative
police tool.27 There are three fundamental rationales underlying caninesniff jurisprudence: (1) sniff are not physically intrusive;28 (2) canines only
sense smells emanating from containers or vehicles;29 and (3) canines only
alert to the scent of contraband, which does not enjoy Fourth Amendment
protection.30
1.
In United States v. Place, the U.S. Supreme Court ruled that a canine
sniff of a suitcase was sui generis and not a search under the Fourth
Amendment.31 Offering two rationales for its conclusion, the Court stated
that: (1) a canine sniff is much less intrusive relative to an officer[]
rummaging through the contents of the luggage, and (2) the sniff detected
evidence of contraband without physically or visually intruding upon
noncontraband items.32 The Court also noted that it was aware of no other
investigative procedure . . . so limited both in the manner in which the
information is obtained and in the content of the information revealed by
the procedure.33
25
Id. at 34 (quoting Silverman v. United States, 365 U.S. 505, 512 (1961)).
Dow, supra note 7, at 19; see Kyllo, 533 U.S. at 33-34.
27 See Lammers, supra note 8, at 847.
28 See, e.g., United States v. Place, 462 U.S. 696, 707 (1983) (*T+he manner in which
information is obtained through [a sniff+ is much less intrusive than a typical search.).
29 See, e.g., United States v. Hutchinson, 471 F. Supp. 2d 497, 510 (M.D. Pa. 2007).
30 See, e.g., Illinois v. Caballes, 543 U.S. 405, 408 (2005); Place, 462 U.S. at 707 (*T+he sniff
discloses only the presence or absence of narcotics, a contraband item.).
26
31
32
33
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Soon after Place, in United States v. Jacobsen, the Court analyzed the use
of a chemical test to determine the presence of narcotics. 34 In that opinion,
the Court abandoned its much less intrusive language and instead
focused on the information revealed by the procedure.35 Place and Jacobsen
fit within the binary search doctrinethey were both searches that
could, and did, reveal only evidence of illegal activity.36 Binary searches
can provide law enforcement with a direct answer to whether an
individual is presently engaged in illegal activity without invading that
individuals privacy.37 The Jacobsen Court declared that such binary
searches do not implicate the Fourth Amendment.38 In Indianapolis v.
Edmond, the U.S. Supreme Court extended the reasoning from Place in
holding that 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.39 The Court concluded that a sniff by a
dog that simply walks around a car is much less intrusive than a typical
search.40
Although the Kyllo Court held that the use of sense-enhancing
technology to obtain information without physical intrusion into a
constitutionally protected area is an impermissible search without a
warrant,41 courts have treated the use of canines enhanced sense of smell
much differently.42 In Illinois v. Caballes, the Court noted that the key
difference between a drug-dog sniff and sense-enhancing technology is
that the drug-dog sniffs reveal only evidence of wrongdoing, whereas
34
36
See United States v. Colyer, 878 F.2d 469, 474 (D.C. Cir. 1989) (stating that *a+s in Place,
the driving force behind Jacobsen was the recognition that because of the binary nature of the
information disclosed by the sniff, no legitimately private information is revealed even
though Place and Jacobsen did not themselves use the term binary).
37
42
See, e.g., United States v. Almeida, No. 2:11-cr-127-DBH, 2012 WL 75751, at *10 (D. Me.
Jan. 9, 2012) (approving of decisions upholding vehicle-interior sniffs and contrasting drugdog searches with man-made investigatory products).
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525
The issue of interior sniffs was highlighted in the Tenth Circuit case of
United States v. Stone, in which the defendant was stopped for speeding and
opened the rear of the hatchback to retrieve a speeding citation from earlier
that day to show the officer.49 Other officers arrived on scene with a drug
dog that circled the vehicle, jumped into the open hatchback, and then
keyed on a duffel bag, which contained illegal narcotics.50 The court
held that the alert by the drug dog gave police probable cause to search the
vehicle. Furthermore, the fact that the drug dog jumped into the hatchback
did not violate the Fourth Amendment because the dog jumped into the
43
48
49
50
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51
58
See id. at 213-15. The court of appeals stated that during a lawful traffic stop, the
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527
agreed.59 The court focused on the distinction between whether the drug
dogs action in physically intruding the vehicles interior was coached or
instinctive.60 In holding it to be instinctive and thus not a search, the court
stated that instinctive implies the dog enters the car without assistance,
facilitation, or other intentional action by its handler.61
3.
narcotics dogs alert that led to the discovery of unlawful drugs in the automobile, in which
the dog jumped in through the open door, did not amount to an unlawful search under
the Fourth Amendment. See id. at 212, 214-15.
59
60
61
62
63
64
65
66
67
68
69
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70 Id.; see also State v. Warsaw, 956 P.2d 139, 143 (N.M. Ct. App. 1997) (stating that the
officer reached into the trunk to remove the glass-laden carpet because he expected the
narcotics dog to jump in there and holding that those activities constituted an illegal
search).
71
79
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86
OSKAR PFUNGST, CLEVER HANS (THE HORSE OF MR. VON OSTEN): A CONTRIBUTION TO
EXPERIMENTAL ANIMAL AND HUMAN PSYCHOLOGY 21-23 (Carl L. Rahn trans., 1911) (1907),
available at www.gutenberg.org/files/33936/33936-h/33936-h.htm.
87
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and posture that changed when the horse reached the correct answer. 88
Like horses, dogs are social animals that can become experts at reading
human body language. 89 Therefore, a drug dog that is responding to subtle
cues from its handler may be ostensibly sniffing for illegal drugs when it is
instead falling into the Clever Hans trap.90
ANALYSIS
II. State Actors, Canines, and Fourth Amendment Behavior
A. Court Views of the Drug Dogs Physical Intrusion as Instinctive
Handlers refer to a drug dogs physical intrusion into a vehicle during
the course of an exterior sniff as instinctive91 or behavior that is
mediated by reactions below the conscious level.92 In general, courts have
readily accepted handlers characterizations of a drug dogs actions as
instinct based.93 In United States v. Stone, the Tenth Circuit noted that even
though the drug dogs exterior sniff of the defendants vehicle was proper,
the dog created a troubling issue under the Fourth Amendment when it
entered the hatchback.94 However, the court agree[d] with the district
judge that the dogs instinctive actions did not violate the Fourth
Amendment.95 Similarly, courts have since stated that without evidence
that the handler improperly facilitated the drug dogs interior intrusion,
such interior sniffing is lawful.96
88
Eric Letendre, The Clever Hans Effect, THE DOG HACKER (Dec. 7, 2007), http://
ultimatedogblog.com/the-clever-hans-effect; Lit et al., supra note 81, at 387.
89 Lit et al., supra note 81, at 388; Steven D. Nicely, The Clever Hans Effect on the Judicial
System, K9 CONSULTANTS OF AMERICA 1 (2010), available at http://www.k9consultantsof
america.com/training_information/ARTICLES/Clever%20Hans%20and%20Judical%20System.
pdf.
90
94
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100 See Stayaway from Bnei Baruch, Carl G. Jung: Archetypes of the Collective Unconscious,
HELIUM (last updated May 14, 2007), http://www.helium.com/items/221986-carl-g-jungarchetypes-of-the-collective-unconscious (The collective unconscious . . . is an inborn instinct
. . . .).
101
103
United States v. Pierce (Pierce I), No. 08-126-JJF, 2009 WL 255627, at *5 (D. Del. Feb. 2,
532
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however, that the dog may have acted upon something other than its pure
animal instinct.104 Because of the extensive and ongoing training a canine
must receive to be deemed a reliable detector of narcotics, the drug dog
and its handler can be viewed as a single entity acting as a state actor.105
Furthermore, the drug dog can also be viewed as a state actor itself in two
possible ways: as an employee of the state and as a private actor acting on
behalf of the state.106
1.
106
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533
and handler ensues.113 As dogs are skilled readers of our behavior,114 the
drug dogs ability to sense and react to its handlers biological and
chemical changes suggests that the two members of the team act as one
entity serving a single purpose: to determine the presence of illegal drugs
within a target vehicle.115
A trained drug dogs behavior, including its alerts, must be
interpreted by its handler in order to have any recognizable meaning or
significance.116 Though courts generally regard a drug dogs alert as wholly
objective proof of the presence of drugs, the alert usually has a large
subjective component as well.117 An alert is a sign: its meaning derives
solely from the unification of the signifiedthe presence of illegal
narcoticsand the signifierthe drug dogs alerting actions.118 The drug
dogs handler is the means by which this sign, which is essential to
obtaining probable cause, is detected and interpreted. 119 Without the
handlers interpretation, the drug dogs alert has no legal significance;
without the drug dogs alert, the handler has no probable cause. 120 The
interdependency of the two beings creates a single entitya single state
actor.121
113
Id.
HOROWITZ, supra note 108, at 80.
115 See supra notes 112-113 and accompanying text; infra notes 118-120; cf. ECKHART TOLLE,
GUARDIANS OF BEING 114 (2009) (We are ultimately not separate . . . from . . . the dog . . . .).
116 See JUDAH, supra note 81, at 108.
117 See Vaughanbell, Sniffing Out the Unconscious, MIND HACKS (Feb. 19, 2011, 3:17 AM),
http://mindhacks.com/2011/02/19/sniffing-out-the-unconscious (*W+hen the human handlers
become suspicious the dogs are more likely to seem to detect suspicious scents, making the
process a lot more subjective than the search teams like to believe.); see, e.g., United States v.
Rosario-Peralta, 199 F.3d 552, 562 (1st Cir. 1999) (explaining that handler testimony assists in
interpreting the signal from the canine); United States v. Outlaw, 134 F. Supp. 2d 807, 813
(W.D. Tex. 2001) (*A+n alert is simply an interpretation of a change in the dogs behavior by a
human handler.).
114
118
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2.
v. 46 | 519
Setting aside the argument that a drug dog and its handler are so
intertwined that they constitute a single state entity, the drug dog should
nonetheless be regarded as an agent of the state for the purposes of a
Fourth Amendment analysis.122 Research on the hourly cost of canine units
shows that they cost far less than minimum-wage employees.123 As long as
their basic needs are met and they are allowed to work, canines are
considered easily pleased employees.124 According to the National Narcotic
Detector Dog Association, one kind of canine team is a commissioned law
enforcement officer, working a canine for a law enforcement agency, with
the responsibilities and duties of locating narcotics.125 A canine can
therefore be categorized as an employee of the state.126 Basic agency law
states that employees are agents of their employers, and, as such, a canine
working within a police unit squarely fits within this definition of an
agent.127 Further, sources for funding these canine employees include the
Department of Justice and the Department of Homeland Security. 128 In
addition, police departments may have their own specially marked K-9
cruisers and even entire specialty K-9 units with significant resources
and officers dedicated to these canines.129
In drug investigations, police use canines solely as a drug-detection
technology.130 Canines can uncover drugs that human officers cannot smell
122 See RESTATEMENT (THIRD) OF AGENCY 1.01 (2006) (Agency is the fiduciary
relationship that arises when one person (a principal) manifests assent to another person (an
agent) that the agent shall act on the principals behalf and subject to the principals control,
and the agent manifests assent or otherwise consents so to act.).
123
See JAY RAPP, HOW TO TRAIN DOGS FOR POLICE WORK 8 (1990).
See id.
125 Narcotic Detection Standards, NATL NARCOTIC DETECTOR DOG ASSN (July 17, 2008),
http://www.nndda.org/official-docs/docs_download/2-narcotics-detection-standard.
124
126 See BLACKS LAW DICTIONARY 602 (9th ed. 2009) (defining employee as *a+ person
who works in the service of another person (the employer) under an express or implied
contract of hire, under which the employer has the right to control the details of work
performance).
127 See BLACKS LAW DICTIONARY 72 (9th ed. 2009) (defining agent as *o+ne who is
authorized to act for or in place of another).
128 David Eric Anderson, K9 Units in Small Departments: Overcoming Budget Constraints
for Forming and Maintaining the Unit 20 (undated) (unpublished B.S. thesis, Mount Olive
College), available at http://www.uspcak9.com/pdf/k9UnitsInSmallDepartments.pdf.
129
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535
and might not find on their own.131 Drug dogs and their handlers partake
in regular training in order to maintain proficiency in detecting narcotic
odors.132 Likewise, the agencies that employ drug dogs require certification
and recertification as often as twice per year.133 Hence, although canines
have a naturally enhanced sense of smell, a drug-dog team is not a reliable
investigative tool for law enforcement without continuous training and
certification.134 Put differently, a drug dogs ability to accurately detect the
presence of illegal drugs within a vehicle is necessarily dependent upon the
training it receives from law enforcement.135
The statethrough training, certifying, and maintaining onsite
physical control of a drug dog by using a leash 136controls the means by
which a dog acts: an employer-employee relationship under agency law. 137
As an agent of its employer, an employees impermissible actions within
the scope of his employment will impute liability to the employer as if the
employer had committed those acts himself.138
State agents are prohibited from entering a vehicle to make a
warrantless search for illegal drugs unless they have probable cause to
believe contraband is located there.139 As an agent, the drug dogs actions
should be imputed upon the state; thus a drug dogs entrance into a vehicle
without probable cause violates the Fourth Amendment. 140
131
135
Cf. id.
A leash is a mechanism to control the radius of a canines movement. See STANLEY
COREN, HOW DOGS THINK: UNDERSTANDING THE CANINE MIND 214 (2004) (describing a benefit
of leash training as direct handling of the dog); CESAR MILLAN WITH MELISSA JO PELTIER,
HOW TO RAISE THE PERFECT DOG 165 (2009) (discussing the leash as a physical control over the
canine).
137 See RESTATEMENT (THIRD) OF AGENCY 7.07(3)(a) (2006) (defining employee as an
agent whose principal controls or has the right to control the manner and means of the agents
performance of work).
136
138
Id. 7.07(1).
See, e.g., Chambers v. Maroney, 399 U.S. 42, 48 (1970) (*A+utomobiles . . . may be
searched without a warrant . . . provided that there is probable cause to believe that the car
contains articles that the officers are entitled to seize. (citing Carroll v. United States, 267 U.S.
132, 153-56 (1925)).
139
140
Cf. Smith v. Maryland, 442 U.S. 735, 739 n.4 (1979) (assuming that the telephone
company was an agent of the police for purposes of state action when it installed a pen
register on the defendants telephone line).
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141
148
149
150
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537
A. Canine Sniffs Based on More Than Just Instinct and Natural Ability
In United States v. Pierce, the Third Circuit affirmed the district courts
finding that a drug dogs alert after breaching the interior of a vehicle was
not a search under the Fourth Amendment.151 Although neither the U.S.
Supreme Court, nor the Third Circuit, had yet addressed the issue, the
district court looked to decisions on factually similar cases handed down in
the Tenth Circuit and another district court within the Third Circuit.152 The
district court stated: Both courts concluded that a dog sniff inside a
vehicle does not violate the Fourth Amendment if the dog enters the
vehicle voluntarily, because the dog is an animal acting on instinct and is
not itself a state actor.153 Nonetheless, even if it is true that the use of
drug dogs in this context is not a search, surely such conduct is close to the
line, considering that it is quite different from the sniffing of inanimate
and unattended objects.154 However, the court concluded that the canine
sniff of both the exterior and interior of [the] Defendants vehicle was not a
search within the meaning of the Fourth Amendment.155
Though the courts have relied on the instinctive nature of the drug
dogs behavior in physically invading the vehicle, [t]he behavior of a dog
is the result of many factors. Some of these may include heredity, natural
instinct, basic senses, past experiences and basic drives.156 Put another
way, instinctive behavior does not have an automatic totally unlearned
quality of instinct.157 Charles Darwin similarly suggested that
domestication destroys natural instincts.158 This supports the notion that
any action of a caninebecause the canine is a domesticated animal
regardless of how instinctive and unassisted it may appear, is never fully
151
153
157
158
Id.
CHARLES DARWIN, ON THE ORIGIN OF SPECIES 215 (David Quammen ed., 2008).
538
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The U.S. Supreme Court has held a search which is reasonable at its
inception may violate the Fourth Amendment by virtue of its intolerable
intensity and scope.161 It is therefore reasonable to suggest that a sniff,
which is reasonable at its inception, may likewise violate the Fourth
Amendment if the intensity and scope become intolerable.162 Put another
way, even though the Court readily accepts an exterior sniff as reasonable,
it does not follow that an expanded-scope sniff, one that involves physical
intrusion into a vehicles interior, is necessarily also reasonable. 163 Courts
have repeatedly held the physical intrusion by a drug dog into a vehicle
that leads to an alert where the drug dogs actions were instinctive and
not facilitated does not render the search invalid.164 Nevertheless, courts
have not extended the analysis set forth in United States v. Thomas
regarding when a drug dogs entry into a vehicle constitutes an invasive
search.165 The Thomas court stated:
No probable cause was necessary for the dog to sniff the outside
of the car because the dog merely amplified the human olfactory
capacity, which under the circumstances would not have been a
search under the Fourth Amendment. For the very same reason,
the placing of a dog inside the trunk and passenger compartment
of a car must be considered an invasive search requiring probable
cause. Just as an officer could not enter the passenger
compartment or trunk of a vehicle to conduct a search without
probable cause, neither can a canine be placed inside a car on less
than this standard.166
159
165
166
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539
Currently, then, exterior sniffs are not considered searches under the
Fourth Amendment.167 Because the level of intrusion in an interior sniff is
higher than that of an exterior sniff, interior sniffs should constitute
searches.168 Therefore, in order to justify interior sniffs under Terry v.
Ohio, the government would need to show a higher level of interest to
avoid obtaining a warrant. 169
On a similar note, in Bond v. United States, the U.S. Supreme Court
stated that [p]hysically invasive inspection is simply more intrusive than
purely visual inspection.170 As such, one of the fundamental bases for
permitting exterior drug dog sniffsthat they are less intrusive than a
typical searchis not present when a drug dogs more intrusive physical
invasion results in an interior sniff.171 Courts that have addressed this
interior sniff issue have erroneously failed to incorporate the more
physically intrusive nature of an interior sniff into their analyses. 172
Just as an individual who places a bag in an overhead compartment
anticipates that their property might be exposed to the physical
manipulation of others, including passengers attempting to fit their own
bag into the compartment, an individual who drives a vehicle on public
roadways can expect that his or her vehicle may be exposed to certain
types of exterior canine sniffing, even by dogs owned by private citizens. 173
Similarly, a federal agents physical manipulation of luggage is analogous
to a drug dogs physical intrusion and subsequent sniffing inside the
vehicle. Just as a federal agents tactile manipulation far exceeds the
casual contact *one+ . . . expects from other passengers, a drug dogs
intrusion into the vehicle far exceeds the casual contact and exterior
167
168
169
See, e.g., Thomas, 787 F. Supp. at 684 (discussing only the physical placement of a drug
dog inside the vehicle as the factor that would render a sniff unconstitutional); United States
v. Almeida, No. 2:11-cr-127-DBH, 2012 WL 75751, at *10 (D. Me. Jan. 9, 2012) (focusing on the
reason for the drug dogs entry into the vehicle as determinative of the sniffs
constitutionality); State v. Freel, 32 P.3d 1219, 1225 (Kan. Ct. App. 2001) (stating that the
reason for finding an unconstitutional search is that the drug dog was encouraged to enter the
vehicle by the police officer).
173
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174
See id.
Id. at 338 n.2.
176 Id.
177 See id.; see also Whren v. United States, 517 U.S. 806, 813 (1996) (stating that the
subjective intent of the law enforcement officer is irrelevant in determining whether the
officers actions violate the Fourth Amendment).
175
178
182
United States v. Jacobsen, 466 U.S. 109, 138 (1984) (Brennan, J., dissenting).
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183
185 See Hope Walker Hall, Comment, Sniffing Out the Fourth Amendment: United States v.
Place-Dog Sniffs-Ten Years Later, 46 ME. L. REV. 151, 174 (1994).
186
190
542
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the dog from jumping into the defendants car.191 The court was
unpersuaded and relied on United States v. Stone to say improper officer
facilitationnot handler noticewas the issue.192 Because there was no
evidence of officer facilitation, the spontaneous jump and physical
intrusion did not render the sniff invalid under the Fourth Amendment.193
The validity of an interior sniff should not turn on whether the handler
or law enforcement personnel facilitated the drug dogs breach of the
interior by opening a door or window.194 Instead, there should be an
inquiry into whether the individuals expectation of privacy within the
interior of the vehicle was reasonable and different from his expectation
of privacy of the exterior of his vehicle. 195
Courts across jurisdictions have repeatedly held the drug dogs
physical intrusion into a vehicle that leads to an alertwhere the drug
dogs actions were instinctive and not facilitated by its handler or
other law enforcement personneldoes not render the sniff
unconstitutional.196 However, they have failed to meaningfully
acknowledge that an alert resulting only after physical intrusion is
different than one that results from an exclusively exterior sniff.197 As a
result, courts have failed to draw any valid distinction between interiorsniff cases and exterior-sniff cases, which the Supreme Court has
determined are outside of the Fourth Amendment. 198
4.
Id. at 351.
Id.
193 Id.
194 But see Pierce II, 622 F.3d 209, 214 (3d Cir. 2010) (discussing only interior-sniff cases with
improper handler facilitation as violating the Fourth Amendment).
195 But see, e.g., United States v. Almeida, No. 2:11-cr-127-DBH, 2012 WL 75751, at *10 (D.
Me. Jan. 9, 2012) (discussing an animals instinctive behavior as the dispositive issue in
interior-sniff cases).
192
196
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543
States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972)) (internal quotation marks omitted)).
200 See id. at 589.
201 Id. at 590; accord Kirk v. Louisiana, 536 U.S. 635, 636 (2002) (per curiam).
202 Chambers v. Maroney, 399 U.S. 42, 48 (1970) (emphasis added) (citing Carroll v. United
States, 267 U.S. 132, 153-54 (1925)).
203
Compare Payton, 445 U.S. at 576 (holding that the Fourth Amendment prohibits the
warrantless search of a suspects home in order to make a routine felony arrest), with
Chambers, 399 U.S. at 48 (indicating that police may conduct warrantless searches of
automobiles without violating the Fourth Amendment if they have probable cause).
204 See Pierce II, 622 F.3d 209, 214 (3d Cir. 2010) (discussing only interior-sniff cases
involving handler facilitation as unconstitutional); United States v. Hutchinson, 471 F. Supp.
2d 497, 505-06 (M.D. Pa. 2007) (noting that there is no binding authority on this issue, but
courts have reached a consensus).
205
206
But see Pierce II, 622 F.3d at 214; Hutchinson, 471 F. Supp. 2d at 506.
See Chambers, 399 U.S. at 48-49 (citing Carroll, 267 U.S. at 153-54).
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Amendment jurisprudence.207
Though the accepted reasonable expectation of privacy may differ on
the issue of threshold entry, a drug dogs post-intrusion alert on a vehicle,
with the alert being the triggering factor of probable cause to search, is
comparable to a police officer only having probable cause to arrest after
entering a room and finding a single occupant. 208 In Johnson v. United States,
probable cause to arrest hinged on police knowledge gained only after,
and wholly by reason of, their entry into the home.209 Similarly, where a
drug dog instinctively enters a vehicles interior and only alerts thereafter,
probable cause to search hinges on a drug dogs knowledge of the presence
of drugs.210 Probable cause is therefore gained only after, and wholly by
reason of olfactory observations made after [the drug dog] had obtained
[entry] under color of [its] police authority.211 In Johnson, the U.S. Supreme
Court held that an officer must have some valid basis in law for the
intrusion.212
Like the officer in Johnson who had no probable cause before physical
intrusion, an officer-handler, whose drug dog does not alert before
physically entering a vehicle, does not have probable cause to search until
the post-intrusion alert.213 As such, when a drug dogs instinctive
intrusion results in an alert, courts should require that the intrusion have
some valid basis in law distinct from that upon which an exclusively
exterior sniff is validly conducted. 214 Failure to acknowledge this
distinction should, at the very least, warrant scrutiny of law enforcements
investigative authority reaching into otherwise private areas.215
207 Compare, e.g., Pierce II, 622 F.3d at 214 (discussing past cases, which have held searches
to be constitutional where a drug dog entered a vehicle instinctively after a driver voluntarily
opened the entry point used by the dog), and Hutchinson, 471 F. Supp. 2d at 506
(acknowledging that a dogs jumping into the cars interior through the hatchback did not
violate the Fourth Amendment), with Johnson v. United States, 333 U.S. 10, 16 (1948) (holding
that the government properly based its right to arrest on information obtained after entering a
room without probable cause).
208
210
See id.
211
See id.
Id. at 17.
213 Id. at 16.
214 See Johnson, 333 U.S. at 17. But see generally Illinois v. Caballes, 543 U.S. 405, 407, 409-10
(2005).
212
215
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545
216 Caballes, 543 U.S. at 423 (Ginsburg, J., dissenting) (citing Bond v. United States, 529 U.S.
334, 338-39 (2000)).
217 Id.; Paul & Trachman, supra note 12, at 42.
218 Simmons, supra note 22, at 417.
219 Mesloh et al., supra note 5, at 175.
220 See id.
221 See United States v. Booker, 186 F.3d 1004, 1006 (8th Cir. 1999) (stating that where the
drug dog alerted three times on suitcases where nothing of relevance was found, it was more
than possible . . . that the suitcases contained drug residue that the defendants did not
purposefully leave behind).
222 See id.; Hinkel & Mahr, supra note 73; Hunt, supra note 46, at 315 (noting that even an
innocent person unknowingly may possess currency contaminated with drugs).
223
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See id.
Id. (quoting Alex Rothacker, a Chicago area dog trainer who works with drug-sniffing
dogs).
226
See id.
See id.; Lit et al., supra note 81, at 388.
228 See Taslitz, supra note 6, at 121.
229 See, e.g., Narcotics Detection, BULLOCKS CANINE SERVICE, http://www.bullocksk9kennels
.com/narcdetect.htm (last visited Mar. 30, 2012) (describing training for vehicle narcoticsdetection searches as including multiple vehicles with at most one hidden compartment on
the interior or exterior but not mentioning entering through windows or doors); Police K9
Drug Dogs, K9 GLOBAL TRAINING ACADEMY WORKING DOGS, http://www.k9gta.com/PoliceK9-Drug-Dogs.html (last visited Mar. 30, 2012) (offering drug-dog search techniques for
vehicles, buildings, open area, aircraft, buses, wind currents, and luggage but not open
windows or doors).
230 See Lit et al., supra note 81, at 388.
231 Cf. Illinois v. Caballes, 543 U.S. 405, 412 (Souter, J., dissenting) (criticizing the Courts
ruling to uphold the validity of drug-dog sniffs).
227
232 See Jessica Na, Comment, A Whiff of Things to Come: The Unreasonableness of Dog Sniffs in
Illinois v. Caballes, 39 LOY. L.A. L. REV. 1471, 1479-80 (2006); cf. Caballes, 543 U.S. at 412 (noting
that once a canines sense of smell is recognized as being imperfect, it is no longer unique
under the Fourth Amendment because it may detect more than contraband).
233
234
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distinguishing its holding from Kyllo, the Caballes Court emphasized the
difference between canine sniffs and sense-enhancing technology.235
However, a fallible canine sniff would render any distinction between
these two types of police investigative tools largely insignificant. 236
Communication between a handler and drug dog based on the dogs
infallible ability to accurately identify particular scents is the primary
rationale for courts deeming a drug dogs alert presumptively reliable to
establish probable cause.237 The Sixth Circuit, for example, has stated that
there are no dispositive factors that will establish the validity of a drug
dogs alert, and where there is nothing unusual about the alert and nothing
to undermine the handlers credibility, that handlers testimonywith
nothing moresufficiently supports the reliability not only of the drug dog
but, more significantly, of the positive alert as well. 238 However, the initial
threshold issue of whether unusual circumstances exist that call into
question the reliability of the drug-dog alert must be properly
scrutinized.239 Such situations may arise when the alert at issue was itself
ambiguous, or the alert was the product of abnormal circumstances. 240
Another one of those limited situations occurs when a drug dog sniffs the
exterior of a vehicle, physically enters the vehicle through either an open
window or door, and positively alerts only after his physical entry into the
vehicles interior.241 Most courts find that a drug dogs training and
certification records alone are sufficient to demonstrate reliability and
support a probable-cause determination; however, reliability need not be
shown by the drug dogs track record or accuracy in its fieldwork.242
Likewise, one court has also concluded [i]n the absence of some other
circumstance requiring a more detailed inquiry into [the drug dogs]
reliability, it would not require the government to produce real-world
records of that drug dogs searches or performance.243
State v. Nguyen, 811 N.E.2d 1180, 1187 (Ohio 2004) (citing a new trend in some federal
courts recognizing that once the state demonstrates the drug dog is trained and certified, it
negates any need to establish the reliability of the challenged drug dog).
243
United States v. Wood, 915 F. Supp. 1126, 1136 (D. Kan. 1996).
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244 See Lit et al., supra note 81, at 392 (suggesting that dogs can respond to nonverbal cues
that do not require formal training).
245
246
247
248
249
250
251
252
See United States v. Stone, 866 F.2d 359, 363-64 (10th Cir. 1989).
Lit et al., supra note 81, at 392.
See id. at 387-88; Hinkel & Mahr, supra note 73.
See HOROWITZ, supra note 108, at 164-65.
See supra note 111 and accompanying text.
See Stone, 866 F.2d at 363-64.
But see id.
But see id.
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CONCLUSION
It is well established that a trained drug dogs exterior sniff of a vehicle
is not within the purview of Fourth Amendment protections, but the U.S.
Supreme Court has yet to settle the law on those sniffs originating as
exterior sniffs and ending with the production of fruits of an interior
search. Lower courts that have decided canine-sniff issues resulting from
instinctive drug-dog leaps or other physical intrusions into vehicles and
subsequent interior sniffs with post-intrusion alerts have glossed over the
fact that there is a distinction in the reasonable expectation of privacy
people can have in the interior and exterior of their vehicles. Those courts
have instead robotically reinforced the theory of the infallible canine
nose. Current jurisprudence holds that as long as a human law
enforcement agent does not physically cross the vehicle threshold, they are
free to use canines to circumvent the Fourth Amendment. In other words,
the drug dog is probable cause with four legs.
Courts thus far have proved unwilling to recognize that there is a
distinction between a drug dog sniffing the exterior of a vehicle and a drug
dog sniffing the interior of a vehicle before alerting. Yet there is no further
point in such instances that would make a more logical boundary of where
a canines actions begin to have Fourth Amendment implications than the
interior-exterior threshold of a vehicle. The dangers of law enforcements
encroachment on constitutional protections increases with every inch drug
dogs are permitted to physically invade individuals vehicles, provided
that physical invasion begins with a lawful exterior sniff.
Though the argument set forth in this Note is not immune to counterargumentsuch as extension of the plain smell doctrine or other
warrantless search exceptions, or a determination that although interior
vehicle sniffs are warrantless searches, they are nevertheless reasonable
the fact remains that interior-vehicle sniffs must, at a bare minimum, be
analyzed as searches within the purview of the Fourth Amendment. The
problem interior sniffs create is similar to Justice Brennans concern in his
Jacobsen dissent: Hence, at some point in the future, if the Court stands by
the theory it has adopted today, search warrants, probable cause, and even
reasonable suspicion may very well become notions of the past.253 For as
long as courts continue with their current line of legal reasoning on this
issue, or lack thereof, there is no end in sight for the potential dismantling
of Fourth Amendment guarantees from the infallible canine nose. As it
currently stands, interior-sniff jurisprudence illuminates the concern that
there may no longer be a slippery slope, but rather a cavernous abyss,
into which the Fourth Amendment falls victim to the power of the
253
United States v. Jacobsen, 466 U.S. 109, 138 (1984) (Brennan, J., dissenting).
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