In Florida v. Jardines, the Court dealt with the issue of whether a drug-sniffing dog on a porch of a home qualifies as a search under the Fourth Amendment to the United States Constitution. Justice Antonin Scalia, writing for a five-to-four majority, opted for a property-based approach, noting that “[o]ne virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.” The Jardines approach stems from the Court’s 2012 property approach in United States v. Jones. Jones held that physically mounting a GPS receiver onto the undercarriage of an automobile was a search. In this way the Court reinstituted a property concept and added to the subjective expectation of privacy tests created by Katz v. United States. While this approach made Jardines an “easy” case, it left many unanswered questions with regard to the relationship between dog sniffs and the Fourth Amendment.
Jardines involved the use of Franky, a drug-detection dog, at the door of Mr. Jardines’s home to investigate whether drugs were present. The Court previously characterized a dog sniff as “sui generis,” holding that a canine sniff is unique from other search techniques. The Court mentioned two reasons for this sui generis characterization: first, the intrusion is limited and second, the dogs only detect contraband. Utilizing this sui generis characterization, the Court maintained that dog sniffs of luggage at an airport or of lawfully stopped vehicles are not searches within the meaning of the Fourth Amendment. Consequently, when police activity is not regarded as a search for Fourth Amendment purposes, officers do not need a warrant or any justification to utilize canine drug-detection units to discover contraband or illegal activities.
The Supreme Court’s previous cases involving drug-detection dogs, however, did not address the question of a sniff at a person’s home. The fact that a home is involved raises additional concerns because the home is seen as having a significant expectation of privacy, or, as Justice Scalia has characterized it, the home is at the “very core” of the Fourth Amendment. Additionally, scientific data that emerged in recent years suggests that drug-detection dogs are not as reliable as police and judges initially thought, thus squarely putting into question the dogs’ ability to sniff contraband consistently. False alerts to legal substances or errors made by handlers indicate that dogs are not completely accurate and are not the same as a chemical test that reveals the scientific nature of a substance.
This Article seeks to answer the hard questions left unanswered by Jardines. What if the dog sniff in this case occurred on a public sidewalk? Would the expectation-of-privacy analysis provide the answer? Should a dog sniff be like a thermal-imaging device pointed at a home similar to the Kyllo decision? What if a dog sniffs a person in a public place? This Article will analyze the future of dog sniffs in light of Jardines and explore the sui generis nature of dog sniffs, in particular the notion that dog sniffs only discover contraband. It should be pointed out that this Article does not deal with utilization of dog sniffs in a terrorist situation.
