Posts Tagged ‘canine nose’

On November 5, I posted here about Florida v. Jardines, in which the U.S. Supreme Court would decide this question: when a police officer takes a dog trained to sniff for drugs onto the porch of a home to sniff the air coming from under the door of a house, does this action constitute a search under the Fourth Amendment?  If the answer was yes, this would mean that police would need a warrant from a court before bringing the dog up to the door.  In past cases, the Court had given police considerable leeway to use dogs; no warrant had been required before having the dog sniff a piece of personal luggage (the Place case is here) or a package addressed to someone (the Jacobsen case is here).

The Court has now issued its opinion in Jardines: bringing a drug-sniffing dog up to a home is a Fourth Amendment search, and requires a warrant.  The author of the opinion was Justice Antonin Scalia, which may surprise those who think of Scalia as the author of the Court’s most conservative cases.  But it should not shock anyone.  The case follows the pattern of one of Scalia’s opinions from 2001: Kyllo v. U.S.  In Kyllo, the police used a thermal imager on a home; the device detects patterns of heat, and the police used it to see considerable excess heat coming from the defendant’s home, which indicated the presence of a marijuana growing operation inside.  According to Scalia, this required a warrant because the target was a home, which is where people conduct their most intimate activities.  The imager, used from outside, was designed to detect activity inside.  Any method of “seeing” inside the home, Scalia said, requires the judicial oversight of a warrant obtained prior to the search.

Scalia used some of the same reasoning in Jardines.  Yes, the dog was outside the home.  And it is true that many non-family members have implicit permission to come onto the porch of the home, right up to the door: letter and package carriers, delivery people, and even police officers wanting to talk to the homeowner.  But the dog is there specifically to detect activity inside the home, and that is more like the thermal imager than someone delivering mail.  Folding this reasoning around the Court’s rediscovered interest in the law of trespass,  Scalia said the presence of the dog is an intrusion that the Fourth Amendment doesn’t permit without a warrant.

Jardines does not put dog sniffs of homes off limits to police.  Rather, police must first demonstrate to a judge that they have probably cause to believe that there is criminal activity the dog could detect inside the house.  Probable cause  is one of the lower legal standard in the law; it does not require anything close to proof beyond a reasonable doubt.

A few weeks ago, I wrote a post  here about two cases heard by the U.S.  Supreme Court about police use of drug-sniffing dogs: Florida v. Jardines and Florida v. Harris.   But now comes news that technology may take us a step further than those cases would.  It seems that scientists have built a device that mimics the power and accuracy of the canine nose.

Professors Carl Meinhart and Martin Moskovits at the University of California at Santa Barbara have engineered a device that uses a computer chip to imitate the extreme sensitivity of the cells in dogs’ noses using “microfluidic nanotechnology.” According to Dr. Brian Piorek, whose company, SpectraFluidics, has patented and exclusively licensed the technology, “Our patented nanoscale vapor detection platform has enabled us to create a … chip that biomimics a dog’s keen sense of smell.”   The bottom line is that this device is highly sensitive to vapor molecules that are an important part of TNT.    The full story is here.  And here is the an abstract for a study the scientists published on the technology in the journal Analytical Chemistry.  According to another story on the technology, there is no apparent reason that the device could not be built to detect almost any other type of vapor molecule, including of course vapor molecules from narcotics.  According to Professor Moskovits,  “The paper we published focused on explosives, but it doesn’t have to be explosives.”

Here’s the thing: this was all foretold, a generation ago, and the law may not be fully prepared for it.  The U.S. Supreme Court made its first decision about drug detection dogs in 1983 in the case of U.S. v. Place.  In that case, in which a trained dog was used to detect narcotics in a suitcase, the Court said that dogs were uniquely unintrusive, since they could search the inside of a concealed space (like a suitcase) without the police having to open it.  The dog would then give limited, binary information to the police officer: using a signal the dog was trained to give, the dog would “say” that drugs (or explosives, or whatever) either were, or were not, present.  Dogs were also, the Court said, almost unfailingly accurate.  Therefore, the Court said that a trained dog could be used on an object like a suitcase without a warrant, without probable cause — indeed without any evidence at all.  It was a far-reaching and very open-ended decision, though few saw it that way at the time.
But in a case the next year called U.S. v. Jacobsen, a dissenting opinion by Justices Brennan and Marshall recognized the full implications of the dog-sniffs-are-so-good-they-aren’t-searches idea.
…[T]he Court’s analysis is so unbounded that if a device were developed that could detect, from the outside of a building, the presence of cocaine inside, there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present.
Well, it seems that the future is here.  If the Court uses its two dog sniff cases this year to give police the power to walk up to the door of a home with a drug-sniffing dog — and they might do this very thing in Florida v. Jardines — think of how easy it may be for every police department to equip all of its police officers with canine noses, to use whenever they want.  And, unless the Court curtails existing police power over the use of drug-sniffing dogs, the Constitution will have nothing to say about regulating the use of these devices.