57 Fla. L. Rev. 963 (2005) | | | |

TEXT :: Respondent, a motorist on an Illinois highway, was arrested and charged with one count of cannabis trafficking in contravention of chapter 720, section 550/5.1(a) of the Illinois Code. An Illinois State trooper pulled Respondent over for traveling 6 miles per hour in excess of the speed limit. The trooper radioed to the dispatcher that he was making the stop. Meanwhile, a second trooper, who was part of the Illinois State Police Drug Interdiction Team, overheard the transmission and informed the dispatcher that he was going to bring his canine unit to the scene to conduct a sniff. The first trooper approached the vehicle, informed the driver that he was speeding, and requested registration documents. The trooper then requested that the driver accompany him back to the patrol car, where the trooper told the driver that he was only going to write him a warning for speeding. At this time, the trooper also requested permission to search Respondent’s car, but was denied consent. The canine unit then arrived, and the dog was walked around Respondent’s car while the trooper wrote the warning. The dog “alerted” to Respondent’s trunk in less than one minute. A subsequent search of the trunk revealed marijuana. At trial, Respondent’s motion to suppress the drugs found in the trunk was denied. Respondent was convicted, and the appellate court affirmed. The Illinois Supreme Court concluded that the canine sniff was an unreasonable expansion of the reason justifying the stop and therefore was an unlawful search. The United States Supreme Court reversed and HELD, under the Fourth Amendment of the United States Constitution, a canine sniff conducted during a lawful traffic stop that reveals no information other than the presence or absence of contraband is not a search and is not subject to any heightened standard of reasonable suspicion.

The protection against unreasonable searches and seizures has been considered fundamental at both the federal and state levels. There is significant historical evidence, however, suggesting that, as originally conceived, the Fourth Amendment was not intended to extend beyond protection of the home. Nevertheless, the Supreme Court has slowly expanded the protections of the Fourth Amendment to reach a variety of contexts outside of the home that include situations in which a person manifests an “actual (subjective) expectation of privacy and . . . [where] the expectation [is] one that society is prepared to recognize as ‘reasonable.'” The Supreme Court has further noted that certain searches, in the traditional sense of the word, do not constitute “searches” within the meaning of the Fourth Amendment.

The Court first addressed the Fourth Amendment ramifications of canine sniffs in the context of an airport luggage search. In the seminal case of United States v. Place, the Court considered the question of whether a canine sniff constitutes a search within the meaning of the Fourth Amendment. In Place, law enforcement officers at an airport in Miami became suspicious of the respondent because of his peculiar behavior. Nevertheless, he was allowed to fly to his destination in New York, where other law enforcement officers had been alerted to his arrival. After failing to receive consent to search the respondent’s baggage, the officers detained his effects and informed him that they were going to seek a warrant to open the baggage. The officers then moved the baggage to another airport and subjected it to a canine sniff, during which a dog alerted to one bag. The respondent was arrested after the bag was found to contain cocaine. His conviction at the trial level, however, was reversed when the court of appeals determined that the detention of his baggage for such an extended period of time between the initial encounter and the canine sniff was unreasonably lengthy.

The Supreme Court affirmed the judgment of the Second Circuit Court of Appeals, concluding that the officers had detained the baggage too long. In its discussion of the case, however, the Court opened the floodgate to two new channels, which would expand the permissibility of searches in a variety of contexts. The first of these channels was the further ratification of applying the reasonable suspicion standard from Terry v. Ohio outside of the typical stop-and-frisk situations. The Second Circuit applied this standard in Place, even though doing so continued the controversial expansion of the scope of searches permissible under reasonable suspicion from exclusively personal safety searches to evidence-gathering searches as well. The Supreme Court considered this approach acceptable, and it specifically recognized that reasonable suspicion could be used to justify brief seizures of any baggage suspected of containing contraband or evidence of a crime. The second channel opened was the recognition that canine sniffs, at least in the context of this case, do not implicate the Fourth Amendment. The Court reached this conclusion by noting the limited level of intrusion upon privacy that a canine sniff creates. As such, the Court categorized the canine sniff as sui generis among search techniques. Thus, the Court concluded that the exposure of the respondent’s baggage to a canine sniff did not constitute a search under the Fourth Amendment.

Seventeen years after the Place decision, in City of Indianapolis v. Edmond, the Court considered canine sniffs in the context of motorist traffic. In Edmond, law enforcement had established a roadblock checkpoint to screen drivers randomly for narcotics. Police walked drug dogs around the outside of each vehicle that had been diverted from the roadway. Respondents filed a lawsuit on behalf of themselves and the class of motorists who had been stopped, claiming that the checkpoints violated the Fourth Amendment. The trial court held that the checkpoint did not violate the Fourth Amendment, but the appellate court reversed.

The Supreme Court affirmed on the basis that the primary purpose of the roadblock was indistinguishable from the general interest in crime control. This holding confirmed the Court’s disapproval of roadblocks which are based on neither individualized suspicion nor “special needs.” The Court found that drug enforcement simply cannot be considered an extraordinary circumstance that would justify such an intrusion. In its discussion of the canine component of the search, however, the Court reaffirmed the logic of Place. In finding that “walk[ing] a narcotics-detection dog around the exterior of each car . . . does not transform the seizure into a search,” the Court opened the door for canine sniffs to be used at any checkpoint that is lawful at its inception. Indeed, in perhaps a prescient moment, the Court specifically declined to address the legality of stops where canine sniffs might be used in circumstances wholly unrelated to drug interdiction. This holding reinforced the logic of Place to reassure law enforcement that conducting searches with canine enhancement does not implicate the Fourth Amendment.

The following year, however, the Court invalidated a search that used sensory enhancement to detect details of the home. In Kyllo v. United States, the Court considered whether a thermal imaging device could be used by police to determine the relative amount of heat emitted in a residence, in an attempt to detect if marijuana was being grown inside. The police used the device to scan a portion of the petitioner’s house, and they determined that the portion they scanned was relatively hot compared to other portions. Based partly on the results of this scan, a Federal Magistrate issued a search warrant for the home; a subsequent search revealed more than one hundred marijuana plants. The District Court found that the search warrant was valid, and the appellate court affirmed.

The Supreme Court reversed, deciding to suppress the evidence as the fruit of an illegal search. The Court focused its reasoning on both the nature of the device and the location to be searched. With regard to the device, the Court found that obtaining details of a “‘constitutionally protected area'” by sensory-enhancing equipment-which could not be otherwise obtained without a physical intrusion-is proscribed. This statement was qualified, however, with a suggestion that if the device was “in general public use,” the search might be acceptable. With regard to the location, the Court reiterated its belief that the Fourth Amendment draws “‘a firm line at the entrance to the house.'” Although the Government contended that only non-intimate details of the home were being captured, the majority rejected this argument by noting first that the distinction between “‘off-the-wall'” observations and “‘through-the-wall'” observations is illusory, and second that any details of the home can be considered intimate details. The Court combined this logic to hold that such surveillance is, in fact, a search and, as such, is presumptively unreasonable without a warrant