Tuesday, July 23, 2013
Kit Kinports (Penn State University Dickinson School of Law) has posted The Dog Days of Fourth Amendment Jurisprudence (Northwestern University Law Review Colloquy, Vol. 108) on SSRN. Here is the abstract:
This Article discusses Florida v. Harris and Florida v. Jardines, the two Fourth Amendment drug dog opinions issued by the Supreme Court earlier this year. Together the cases hold that a narcotics detection dog effects a “search” when it intrudes on a constitutionally protected area in order to collect evidence, but that the dog’s positive alert is generally sufficient to support a finding of probable cause. The piece argues that both cases essentially generate a bright-line rule, thereby deviating from precedent that favored a more amorphous standard considering all the surrounding circumstances. Like many purportedly clear rules, the ones flowing from the drug dog decisions lack precision and therefore create an inherent risk of overinclusion or underinclusion. Here, the Article concludes, Harris exhibits overconfidence in the accuracy of drug dog alerts, while Jardines threatens to underprotect less privileged socio-economic classes.