Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home

Abstract

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.

Keywords: Canine Sniff Doctrine, Fourth Amendment, search and seizure