When Is a Drug-sniffing Dog’s Nose Not a Dog’s Nose?

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.

What’s the Connection Between Dog Sniffs and the Foreign Intelligence Surveillance Act?

Last week, the U.S. Supreme Court held arguments on cases involving police use of dog detection dogs, and the ability of citizens to sue when they think their conversations have been monitored under the Foreign Intelligence Surveillance Act.  These are important matters, with important long-term implications for the privacy of all Americans.

I had the chance to discuss these cases on Pittsburgh Public Radio’s Essential Pittsburgh talk show.  To hear the complete audio file, click here.

In the dog sniff case of Florida v. Jardines, the Court looked at the basic question of whether police could walk a drug-sniffing dog up to a person’s front door to search (that is, sniff) for narcotics inside without a warrant or probable cause.  It’s an interesting question: the Court has allowed police to use dogs this way in past cases on objects like luggage and vehicles, but they have also said in other cases that the home is different and deserves more protection.  In the week’s  other dog sniff case, Florida v. Harris, the Court debated the accuracy of the dogs; it turns out, contrary to what most people think, they are not perfect.

In the FISA case, the Congress passed a statute that validated former President George W. Bush’s warrantless wiretapping system.  This law allowed the government to listen in on communications of Americans in some limited circumstances without a warrant.  A number of journalists, lawyers for terrorism suspects, and human rights organizations sued, alleging that their communications were almost certainly tapped under the law.  But they could not know for sure, because the government keeps these taps secret and had refused to confirm or deny that any of the plaintiffs had had their communications intercepted.  The government therefore argues that the plaintiffs can’t prove they’ve been harmed.  It’s a classic Catch-22.