Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs

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Nebraska Law Review, Vol: 85, Issue: 3, Page: 5

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Katz, Lewis R.; Golembiewski, Aaron P.
article description
Privacy is fast becoming the most illusive aspect of life for Americans. The concept of the American way of life was built upon the right to be left alone. That right is currently threatened by both government and private entities. When it comes to government encroachment upon the right, we look to the Fourth Amendment to regulate and protect against unreasonable encroachments, and we look to the Supreme Court to define the Fourth Amendment's terms. For the past three decades, that Court has applied a cramped definition of "search," thereby excluding common government investigative techniques from the protection of the Fourth Amendment. One such application has excluded dog sniffs for illegal drugs from the term "search." With that leeway, police are utilizing dogs much more frequently to detect illegal drugs and in contexts never considered by the Court when it defined dog sniffs as being outside of the Fourth Amendment. In 1983, the Supreme Court exempted dog sniffs from the reasonableness requirement of the Fourth Amendment. The Court stated that the dog sniff of a piece of luggage is not a search subject to the Fourth Amendment because a dog sniff is a limited intrusion capable only of accurately determining whether or not the luggage contains contraband. That statement was not central to the case. Although the luggage had been properly seized based on reasonable suspicion, the Court held that the extended detention of the piece of luggage was unreasonable. That the statements pertaining to dog sniffing were not central to the decision in Place is a fact that has been consistently ignored by the more than 2,000 cases citing to United States v. Place for its proposition about dog sniffs. Thus, a case seemingly limited to determining the limits of a seizure of a suitcase on less than probable cause has become the cornerstone of the categorical elimination of judicial oversight of police canine units. Today canine units operate almost without any legal controls, expanding a doctrine created only for luggage to the arbitrary use of dogs on vehicles, homes, and persons at the unlimited discretion of a police officer.