Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home
Leslie A. Shoebotham
Loyola University New Orleans College of Law
February 18, 2009
88 Oregon Law Review 829 (2009)
Loyola New Orleans Law Research Paper No. 2009-05
This Article argues that a canine drug-detection sniff of a private home is a “search” under the Fourth Amendment because the sniff is a sense-enhancing tool that provides police information about a home’s interior. Scientific research now establishes that drug-detection dogs do not alert to contraband, but instead to break-down products of the illegal drug — decomposition odor constituents that are in no way illegal or even unique to contraband. Therefore, a positive canine sniff produces nothing more than an inference that contraband is also present; sense-enhanced police inferencing that is analogous to the technology-assisted inferencing about a home’s interior that the Court rejected in Kyllo v. United States, 533 U.S. 27 (2001), and United States v. Karo, 468 U.S. 705 (1984). Drug-detection dogs are “natural” technological aids to law enforcement — based on the extensive scientific research conducted to improve canine drug-detection training and to develop breeding and cloning programs that result in detection dogs with enhanced drug-detection capabilities — which implicate Kyllo’s concerns regarding “advancing technology” used to infer the existence of contraband inside a private home. Further, canine home-sniffs are more intrusive than ordinary “knock and talks” with human officers because (1) detection dogs are often selected for the intimidation that they produce; (2) law enforcement has a long history of using dogs to oppress people of color; and (3) dogs are considered unclean to members of some religions. A canine drug-detection sniff of a private home must be supported by a dog-sniff warrant issued on the basis of probable cause to perform the sniff, not probable cause to search physically the premises.
Number of Pages in PDF File: 76
Keywords: Canine Sniff Doctrine, Fourth Amendment, search and seizureAccepted Paper Series
Date posted: September 24, 2012 ; Last revised: September 27, 2012
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