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Links: Is New Dog-Sniffing Technology Unconstitutional?
Posted by Steven Wu on Tuesday, November 25 @ 22:17:07 EST Privacy
This is a Supreme Court case just waiting to happen. Reuters reports that a new invention may replace dog sniffing for drugs and other contraband.

This invention could be the basis of a collision between two Supreme Court cases. In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held unconstitutional the use of thermal-imaging devices to detect heat within a home, in part because the devices were not in general public use. In an earlier case, however, the Court held that dog-sniffing was not a Fourth Amendment search. United States v. Place, 462 U.S. 696 (1983).

The dissent in Kyllo noted a conflict between these two cases:

[The Court's holding] would, for example, embrace potential mechanical substitutes for dogs trained to react when they sniff narcotics. But in United States v. Place, we held that a dog sniff that "discloses only the presence or absence of narcotics" does "not constitute a 'search' within the meaning of the Fourth Amendment," and it must follow that sense-enhancing equipment that identifies nothing but illegal activity is not a search either. Nevertheless, the use of such a device would be unconstitutional under the Court's rule.
How this develops will be very interesting.
 
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Re: Is New Dog-Sniffing Technology Unconstitutional? (Score: 0)
by Anonymous on Wednesday, November 26 @ 08:10:15 EST
There is one distinction -- its the privacy of the home (Kyllo) versus searches in public (Place). The 4th Amendment is always at its strongest in the home. I think Kyllo may have applicability to the dog sniffing cases only when they are used to search the outside of a home, which is not their typical use.

On the other hand, use of dog sniffing in public places such as airports, subways, and the like is probably OK. US v. Place was an airport search, where reasonable expectations of privacy are much, much lower. In fact, use of the infared technology at issue in Kyllo itself is probably OK outside the home, and especially at an airport where one reasonably expects security monitoring (at least in this day and age). What expectation of privacy do you have as to your infared body radiation in an airport? Or as to the way your luggage smells?

Thus, I think the real distinction is one of location (the home vs. the airport) not one of search technique (dog sniff vs. heat sensor).

-doogieh


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Re: Is New Dog-Sniffing Technology Unconstitutional? (Score: 0)
by Anonymous on Wednesday, November 26 @ 08:12:45 EST
Just to clarify, when I said use of dog sniffing outside the home is probably not permissible under Kyllo, I meant use of dog sniffing just physically outside the home to detect something inside. This is in contrast to an otherwise public search. Poor use of language on my part.

-doogieh


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Another distinction (Score: 0)
by Anonymous on Wednesday, November 26 @ 12:34:26 EST
Thermal imaging can reveal much more than the presence of contraband materials. As such, it is more invasive. If the sniffing were improved to identify things besides contraband then there would be more of a contradiction.


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