The Supreme Court will be hearing a very important case in the area of criminal defense. Criminal defense attorneys in Mississippi and through out the country will be watching this case closely because it could drastically alter the legal limits of police intrusion into the people's private affairs. Should the court decide these cases in favor of the government, we may see police forces around the nation employing new search techniques and becoming more and more intrusive. As in most cases, the question before the Supreme Court is deceptively narrow: Is a dog sniff at the front door of a suspect's house a "search" under the Fourth Amendment thus necessitating that the law enforcement officers obtain a warrant before taking that action.
The jurisprudence in this area of law is complex and the analysis used to determine the outcome of a case depends upon specific facts of the case. This is an overview of the law in this area that should give the reader a basic understanding of the case law and allow them to understand the Supreme Court's decision, when it is handed down. The general analysis for determining if there has been a "search" under the Fourth Amendment was announced in Katz v. United States, 389 U.S. 347 (1967), the Supreme Court provided that a "search" occurs when a person expects privacy in the thing searched and society believes that expectation is reasonable. The language "intrusion into seclusion" and "reasonable expectation of privacy" is often used.
The Supreme Court has already previously reasoned that a dog sniffing a person's bag or car is not a "search" under the Fourth Amendment. The rational for this ostensibly absurd result is a line of jurisprudence that analyzes Fourth Amendment issues backward by beginning with the subjective expectation of privacy that the defendant had in the thing that was searched. The analysis then goes on to ask if that subjective expectation was reasonable. When this analysis is applied loosely, we see Supreme Court cases holding, "Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." United States v. Jacobsen, 466 U.S. 109 (1984).
In United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), The Court held that a dog sniff that "discloses only the presence or absence of narcotics" and it does "not constitute a 'search' within the meaning of the Fourth Amendment." If one only looks at that language from Supreme Court precedent, it appears that this dispute has been settled. However, Place dealt with a dog sniffing a car and in other cases involving non-intrusive methods of disclosing the presence or absence of narcotics (or in layman's terms "searches") in a person's home, the court has been much more respectful of the individual's right to privacy.
The following language from Kyllo v. U.S. 533 U.S. 27, 121 S.Ct. 2038 (US 2001) reveals that the court is very hesitant to make exceptions to the warrant requirement when a home is being searched:
"in the case of the search of a home's interior--the prototypical and hence most commonly litigated area of protected privacy --there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment"
Within the case law involving the search of an individuals residence (and the general case law in this area) there is also a focus on technology and whether or not the technology is so common that a person is reasonable to think that their privacy is not in danger of being invaded by it. Thus, because planes are common it is not reasonable to think that an aircraft might fly over your property and thus place your backyard in plain view of the law enforcement officers in the aircraft. However where technology is newer like radio imaging or heat imaging to peer through walls, the court has found that people reasonably believe that their effects are secluded from this type of intrusion. see Kylo supra. The court has not been willing to call dogs this kind of new specialized technology. Even though technical language is used to describe these dogs that have had highly specialized training and must be used in a particular way by trained master. As an example, they are referred to as "canine units" which seems to suggest an uncommon level of sophistication for a domesticated animal.
In my humble opinion, all of this misses the larger issue. The law in this area is in dire need of revision. There are so many exceptions to the Fourth Amendment that it is hard to see what law enforcement officers cannot do when they are determined to search someone's person or effects. If the court allows warrantless canine unit searches (and that is what they are searches) of people's residence without a warrant, we will not doubt see police forces around the country adopting more intrusive policies. The Fourth Amendment was adopted to help the government manage its surveillance program. The Fourth Amendment was enacted to give the people the freedom to decide what they wanted to conceal from the world. Instead of using clever semantics and and logic to wear down the protections of the Fourth Amendment, the court should take the opportunity to set a new course for Fourth Amendment law. It should find a way to forcefully protect the peoples right to be free from unreasonable searches (those without a warrant) rather than merely use the law to police an aggressively intrusive policy of law enforcement. The court should endeavor to use the law to give people back the liberty that the Fourth Amendment protected for nearly two centuries.