By: Timothy C. Stone
The use of dog sniffs to conduct law enforcement presents unique
Fourth Amendment issues for both judicial and scholarly
examination. Although the Supreme Court has held that sniffs
are constitutional “non-events”—meaning they are not considered
Fourth Amendment “searches,” and therefore do not require probable
cause—some lower courts have found that the context in which a
sniff occurs can affect its constitutionality. For example,
while a sniff of luggage in a public airport terminal may not
trigger Fourth Amendment scrutiny, a sniff of the front door to a
private home indeed constitutes a search and thus requires probable
cause. Proponents of this distinction derive support from the
Supreme Court’s 2001 decision in United States v. Kyllo,
which held that governmental surveillance of private homes using
thermal imagers triggers Fourth Amendment safeguards. This
Comment examines State v. Raab, a recent Florida appellate
court decision, which found that a “front door sniff” comprises a
Fourth Amendment search; it then disagrees with Raab’s
holding and offers several arguments in support of the proposition
that dog sniffs are generally unaffected by the context in which
they occur.
First, this Comment submits that Raab misconstrued
Kyllo, and ignored the absence of Supreme Court precedent
suggesting any intent to abandon the sui generis treatment of the
sniff as a non-constitutional event. Second, this Comment
examines the binary nature of the sniff and its narrow
determination of the presence or absence of contraband.
Assuming that no right exists to be free from governmental
suspicion, the sniff’s binary character ensures that no Fourth
Amendment violation occurs—whether or not it yields the discovery
of drugs. Provided that the site from which the sniff
occurs—the so-called “launching pad”—is open to the public, the
Fourth Amendment is simply not implicated. Finally, this
Comment explores the distinction between “passive” and “active”
surveillance technology, and submits that the sniff—as a form of
passive technology—is minimally invasive, especially when performed
upon inanimate objects.