Friday, October 4, 2013
Robert M. Bloom and Dana Walsh (Boston College Law School and Boston College - Law School) have posted The Fourth Amendment Fetches Fido: New Approaches to Dog Sniffs (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:
Dogs’ relationship to man as hunters, finders, protectors, and friends has existed for thousands of years. Today dogs serve very important law enforcement functions as sniffers in the investigation of crimes and other threats to society. The Fourth Amendment of the United States Constitution is of comparatively more recent vintage and seeks to protect the individual’s privacy from infringement by the government. This Article deals with the Fourth Amendment implications when the government infringement is a dog sniff.
In the Supreme Court’s latest decision on dogs Florida v. Jardines, Franky, a drug-detection dog, walked onto the porch of Mr. Jardines’ home, sniffed around and alerted his handler that drugs were inside the house. From this alert, the police obtained a search warrant for the home where they discovered a marijuana growing operation. The issue before the Court was whether Franky’s sojourn to the porch constituted a Fourth Amendment search requiring justification and a warrant.
Justice Scalia wrote for the Court in Florida v. Jardines and utilized a property based analysis in his desire to keep "easy cases easy." He held that uninvited sniffs of the home from the porch implicated the Fourth Amendment. This so called easy approach left several questions unanswered. This Article attempts to examine some of these questions, including what would happen if the dog sniff had occurred on a public sidewalk or if the dog sniff was of a person in a public place. Additionally, this Article explores the rationale for classifying dog sniffs as sui generis, thereby not implicating the Fourth Amendment. It debunks this rationale and suggests a more effective way to deal with dog sniffs in the future.