Is It the Fur?

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A few years ago, in Kyllo v. United States, the Supreme Court said police looking for the heat signature of marijuana grow lights need a warrant to examine the exterior of a home with a thermal imager. A few months ago, in Illinois v. Caballes, the Court said police don't need a warrant, probable cause, or even a vague suspicion to walk a drug-sniffing dog around a car. But what about a drug-sniffing dog outside a house? As Nick notes, the justices aren't saying. Yesterday they declined to hear a case in which a dog sniffed out methamphetamine in a man's garage while standing in his driveway.

We are left to wonder exactly what criteria transform surveillance into a "search" within the meaning of the Fourth Amendment. Homes generally get more protection than cars, so maybe the crucial issue is the property being searched–er, examined. (What about a guy who lives in his car?) Or maybe, as Harris County, Texas, District Attorney Charles A. Rosenthal argued in this case, what matters is the use of "technology" that enables police to detect what they otherwise could not see/smell/hear. According to Rosenthal, trained dogs don't count as technology.

The Supreme Court has suggested that it's the specificity of the surveillance technique that matters. In the 1983 case United States v. Place, it said a dog's sniff of luggage "discloses only the presence or absence of narcotics, a contraband item," while in Kyllo it noted that thermal imaging potentially reveals much more information than the presence of an indoor marijuana garden. In his Caballes dissent, Justice David Souter argued that the Court puts too much faith in the accuracy of dog alerts, which may (for example) indicate the presence of food, plastic bags, and other items used in training as well as contraband. Over at the Volokh Conspiracy, Orrin Kerr has noted another problem with a distinction based on the breadth of information revealed:

The Fourth Amendment traditionally has focused on how the surveillance occurred, rather than the nature of the information obtained. Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court [in Kyllo], the government may be free to invade your property so long as they only obtain "non private" information. This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer–all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasing focus on the nature of the information rather than how the information is obtained, it's no longer so clear.

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  1. Jacob Sullum,

    And originalist would ask how were searches of carraiges and or men on horseback handled. That’s the best analogy to things as they stood in 1791.

    Regarding homes, it would depend on how far the “zone of privacy” (if we can use such modern words) extended into the curtilage of one’s home in 1791.

    Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain.

    That’s not really true. There are a lot of garbage bag cases from the 1980s where the Supreme Court and the lower federal courts upheld all manner of garbage collecting activities – indeed, many of them amounted to trespass. Indeed, I recall several cases where the bags were seized from a closed garage.

  2. In some ways I think that that Katz gave us a false impression of how protective the 4th Amendment is. Before the two prong approach adopted by Katz judicial deference to police behavior was the norm and as far as I can tell we’ve returned to the status quo.

  3. According to Rosenthal, trained dogs don’t count as technology.

    What crap. A technology is anything that extends the capabilities of a creature. A stick lying on the ground is not technology. A stick used by chimps to fish for termites is technology. A logjam caused by a flood is not technology. A logjam caused by a beaver is technology. A cat that naturally seeks out catnip is not technology. A cat that is trained to seek out plastic explosives is technology. Hell, even a cat kept for purposes of rodent control is a technology, even though the cat is behaving naturally. Technology is all about intent. It is about manipulating the environment for your purposes.

    Dog sniffing is technology, just as surely as a horse-drawn plow, or bees kept to pollinate an orchard.

  4. THE GOVERNMENT IS STEALING OUR RIGHTS SLOWLY,AND WE ARE RESPONSIBLE FOR IT.WE HAVE SO MANY DIVISIONS OF GROUPS THAT FIGHT EACH OTHER ,PROPAGATE HATE ,CONFUSION GULIBILITY,IGNORANCE FEAR TACTICS ETC. AND THE GOVERNMENT IS THE INSTIGATOR OF THE DIVISIONS.IT CAUSES SOCIAL INSANITY AND UNREST THEY DEPEND ON THESE GROUPS THEY HAVE CREATED TO OCCUPY OR MINDS ON STUPID ISSUES,SO THEY WILL EVENTUALLY HAVE AN AMERICAN DICTATORSHIP,A POLICE STATE.WE NEED TO PUT ASIDE GROUP DIFFERENCES AND UNITE PUSHING BACK WITH ONE VOICE THAT WILL KNOCK THE ELITE TO ITS KNEES.” WHEN THE PEOPLE FEAR THE GOVERNMENT ,THAT IS TYRANNY.WHEN THE GOVERNMENT FEARS THE PEOPLE ,THAT IS FREEDOM.” BEN FRANKLIN

  5. wade
    they will eventually have an amerikan diktatorship

    dude,where have you been.
    caps lock ouch

  6. I think the legal rationale for warrantless drug sniffing dog searches is that it is not a violation of your *property*, since you can’t legally own any contraband. If the dogs only detected contraband, that might even be a viable argument. This is manifestly not the case: e.g. when I was in highschool, my locker was searched because it contained several bags of candy. I had no drugs at all, anywhere, ever, but had that been my car, my privacy would have been violated.

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