Dog Sniff Precedent Reaffirmed:
This morning the Supreme Court reaffirmed 6-2 its 1983 precedent, United States v. Place, which had held that a dog sniff for narcotics is not a Fourth Amendment "search." The mercifully short opinion for the Court by Justice Stevens relied heavily on Stevens' own 1984 opinion, United States v. Jacobsen, which had held that the police do not conduct a "search" when they perform narcotics tests because narcotics are illegal contraband; interfering with a person's drugs does not violate their Fourth Amendment rights because Fourth Amendment rights in illegal narcotics cannot be constitutionally "reasonable." While this may seem a bit odd at first, it actually has substantial roots in existing law: as I argued in a recent article, a "reasonable expectation of privacy" is not the same as the expectation of privacy of a reasonable person, but rather is a term of art keyed heavily to property law. Because a person cannot have a property right in narcotics, the thinking goes (whether rightly or wrongly), interfering with his drugs does not infringe a property right and therefore does not constitute a search.
One interesting aspect of today's opinion is that Justice Stevens had to distinguish the Court's 2001 thermal imaging case, Kyllo v. United States, in which Stevens had dissented. Kyllo held (more or less) that it is a search for the police to point an infrared thermal imaging device at the exterior wall of a private home. To reconcile the holding of Place with Kyllo, Stevens reasoned that the key was the nature of the information that surveillance method yielded. The thermal imaging device was used to obtain intimate details in the home, whereas the drug-sniffing dog only indicated the presence or non-presence of illegal narcotics. Based on Stevens' dissent in Kyllo, I wonder if Stevens would have preferred in a perfect world to base the opinion not on the nature of the information obtained, but rather on the details of how the information was collected. In particular, dogs can sniff narcotics from the exterior of a car because the bags holding the narcotics are not perfectly sealed; some of the drugs leak out into the open, and the dogs can smell that. In the language of Stevens' Kyllo dissent, this was "off the wall" surveillance, not "through the wall" surveillance. But Stevens had no room to make this argument after Kyllo, so he had to focus on the nature of the information obtained rather than the way the search was conducted. This was more or less the rationale of Place, an O'Connor opinion Stevens joined, but the Place analysis was so brief and unilluminating that it was sort of a result in search of a rationale. The opinion today more fully reconciles the existing cases on use of technologies to detect what the human senses cannot (if you can consider Fido a technology), further cementing the idea of focusing on the nature of the information obtained rather than the way the surveillance works.
In my view, this is a potentially troubling development. The Fourth Amendment traditionally has focused on how the surveillance occurred, rather than the nature of the information obtained. Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information. This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasing focus on the nature of the information rather than how the information is obtained, it's no longer so clear.
Today's opinion is Illinios v. Caballes, No. 03-923.
One interesting aspect of today's opinion is that Justice Stevens had to distinguish the Court's 2001 thermal imaging case, Kyllo v. United States, in which Stevens had dissented. Kyllo held (more or less) that it is a search for the police to point an infrared thermal imaging device at the exterior wall of a private home. To reconcile the holding of Place with Kyllo, Stevens reasoned that the key was the nature of the information that surveillance method yielded. The thermal imaging device was used to obtain intimate details in the home, whereas the drug-sniffing dog only indicated the presence or non-presence of illegal narcotics. Based on Stevens' dissent in Kyllo, I wonder if Stevens would have preferred in a perfect world to base the opinion not on the nature of the information obtained, but rather on the details of how the information was collected. In particular, dogs can sniff narcotics from the exterior of a car because the bags holding the narcotics are not perfectly sealed; some of the drugs leak out into the open, and the dogs can smell that. In the language of Stevens' Kyllo dissent, this was "off the wall" surveillance, not "through the wall" surveillance. But Stevens had no room to make this argument after Kyllo, so he had to focus on the nature of the information obtained rather than the way the search was conducted. This was more or less the rationale of Place, an O'Connor opinion Stevens joined, but the Place analysis was so brief and unilluminating that it was sort of a result in search of a rationale. The opinion today more fully reconciles the existing cases on use of technologies to detect what the human senses cannot (if you can consider Fido a technology), further cementing the idea of focusing on the nature of the information obtained rather than the way the surveillance works.
In my view, this is a potentially troubling development. The Fourth Amendment traditionally has focused on how the surveillance occurred, rather than the nature of the information obtained. Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information. This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasing focus on the nature of the information rather than how the information is obtained, it's no longer so clear.
Today's opinion is Illinios v. Caballes, No. 03-923.