Police use K-9 “officers” to sniff the exterior of cars, homes, warehouses, luggage, etc. to detect contraband. The dogs are trained to find contraband through the use of scented toys. Trainers select playful, energetic dogs who will eagerly seek out a toy, then accompany the toy with the smell of some form of contraband (e.g. marijuana). The dog, wanting to play with the toy, will find the toy wherever it is hidden. Training the dog to find the toy is easy. Getting the dog to associate the toy with the smell of contraband is also easy, sometimes taking less than a day. A bit more difficult, however, is the process of getting the dog to disregard the other scents the toy gives off and getting the dog to give a positive signal ONLY for contraband. After all, the toy is what attracted the dog to the contraband in the first place. Well trained dogs can be very accurate and effective at determining whether contraband exists, but there are indications that training is not always up to par. Additionally, there is evidence of law enforcement officers inducing “false positives” to get probable cause.
Police use a K-9 sniff to determine the contents of something they have no legal right to see for themselves. When an officer lacks probable cause to search a trunk, a garage or a storage unit, they can bring a dog in. So long as the dog signals that contraband is present, police will usually have the probable cause to conduct a search. Accuracy and ethical use (the inducing “false positives” problem) aside, K-9 sniffs violate the Fourth Amendment.
In 2001, the US Supreme Court held that law enforcement’s use of infrared detectors to detect illegal marijuana grow operations inside a home is a search and requires a warrant. Kyllo v. United States, 533 U.S. 27 (2001). The Court reasoned that law enforcement’s use of technology to see what could not be seen by the naked eye makes the scan a search, even without physically entering the property. While this case did not address the K-9 sniff, the situations are clearly analogous. A police officer lacks the probable cause to conduct a search (i.e. lacks the legal right to see what is inside a car, container, house, etc.), and cannot determine the contents on his own. The officer then uses the dog to see inside the very place he has no right to be. The Kyllo decision should have been the beginning of the end of the K-9 sniff.
Instead, in 2005, the Court decided that a K-9 sniff during a routine traffic stop does not violate the Fourth Amendment so long as the practice does not unreasonably add to the delay of the stop. Illinois v. Caballes, 543 U.S. 405 (2005). Admittedly, dogs are not technology. But they are certainly not officers, as the law enforcement side would have us believe. They aren’t paid, can’t be held accountable, can’t reason the way humans do, and do not even understand the purpose of their function. Remember, the dog is associating the marijuana it finds with a toy it once wanted to chew on with no concept of anything relating to the arrest or prosecution of the sniff’s victim. The officer (the human officer, that is) is in full control, using his trained tool to tell him what is inside the place he has no right to go himself. The Caballes Court reasoned that because the K-9 sniff is designed only to determine whether a car contains contraband no one is allowed to possess, that there is no rights violation. Essentially, the Court is saying that a person cannot have a reasonable expectation of privacy as to contraband. This is false.
Privacy, by its very nature, cannot be judged by the contents of a container. Until privacy is violated, the trunk is a “mystery box” of sorts. We cannot logically say that citizens no expectation of privacy in their cars, or in their homes, on the basis of what is contained therein. Determining what is inside, when doing so is not possible by the naked eye (or human nose), must be deemed a search if the Court is to remain at all consistent with its decision in Kyllo. In fact, any delay in a routine traffic stop will be more invasive than driving by a home and scanning the exterior. If a dog is not an officer, then its use is a search. An officer would not be permitted to use a handheld mechanical nose under Kyllo and should not be permitted to use a K-9 either. In Kyllo, Justice Scalia warned that allowing officers to use specialized (not widely-used/available) technology to see more than the naked eye permits could eventually lead to a much more substantial deprivation of privacy (airport body scans, anyone?).
If a farce as silly as calling a dog an officer allows law enforcement to sidestep the Kyllo decision, are we in for a real life RoboCop someday? Can police slap a badge on an infrared detector and continue to use it? Sure, lots of people have dogs, but the ability to properly train a dog to accurately detect contraband, and only contraband is not widely available.
Luckily for the Bill of Rights, this debate is not over.
Recently, the Florida Supreme Court held that a K-9 sniff conducted at the front door of a marijuana grow house violates the Fourth Amendment. Florida v. Jardines, 73 So.3d 34 (Fla. 2011). The Florida Attorney General has appealed the decision and the US Supreme Court will soon hear the case to decide the legality of a K-9 sniff conducted at a home, as opposed to one conducted on a motor vehicle (Docket No. 11-564). It is long established that people have a greater expectation of privacy in their homes than in a car, so it will be interesting to see how the Court decides this case.
While the court will not directly address automobile K-9 sniffs in this case, the way the decision defines a search, a sniff and a person’s expectation of privacy will have interesting implications and may affect the way some lower courts handle an automobile K-9 sniff (i.e. some lower courts may read the Jardines decision as overruling Caballes if the Court actually follows the Constitution this time around).
It seems this debate will go on for a while, but it really shouldn’t have to. A dog is not a cop. A K-9 sniff is a search. A search requires probable cause. No loopholes.