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Monday, January 24, 2005

Illinois v. Caballes (dog sniffing reaffirmed)

The Supreme Court handed down Illinois v. Caballes today, finding in an opinion by Justice Stevens, that the use of a trained narcotics detection dog during a lawful traffic stop does not implicate legitimate privacy interests that would offend the Fourth Amendment.

What I find interesting about the case is the way the majority distinguishes Kyllo v. United States (the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search):
Critical to that decision was the fact that the device was capable of detecting lawful activity -- in that case, intimate details in a home, such as "at what hour each night the lady of the house takes her daily sauna and bath." The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
Since detection of unlawful activity does nto offend the Fourth Amendment, it seems that the issue is overinclusion. But Justice Stevens doesn't speak to the risk of the dog sniffing out lawful, private activity. He states elsewhere in the opinion that the record contains no evidence of high error rates, but doesn't acknowledge that a finding of high error rates, particularly the existence of false positives, would make this case harder to distinguish.

This may be exaggerating the issue, however, since thermal imaging is able to detect 100% of much legal, private conduct, whereas even the highest evidence pegs narcotics dogs error rates as significantly lower.

But I wonder what error percentage would be enough for members of the majority to concede a fourth amendment violation. Kyllo was 5-4 with an interesting majority makeup (Scalia, Souter, Thomas, Ginsburg, and Breyer). So for Scalia, Thomas, and Breyer, the point at which the the search violates the fourth amendment is somewhere between dog-sniffing (12.5-60% according to the dissent) and thermal-imaging (presumably 100%).

UPDATE: Orin Kerr at the Volokh Conspiracy discusses the case
UPDATE: More analysis and links to other blogs on Grits for Breakfast


Anonymous Anonymous said...

In Kyllo, it is rather clear that Justice Scalia felt that the ability to use thermal imaging technology to pry into the lives of private activity was in some way uncouth. While I am not of the opinion that Kyllo was decided correctly, it is clear that the legal distinction rest largely on the capability to discover legal activity (such as a lady in a sauna).

However, there is a major difference between a thermal imager and a drug sniffing dog. Basically, what the dog must do is give an up or down indication of drugs or no drugs. The dog is NOT trained to discover other private activities.

There is a major difference between the dog being right and wrong, and the dog discovering other behaviors. For example, if the the government invented a thermal imager that ONLY detected heat radiations from cannabis plants, it would likely pass the Kyllo test. Why? One has no reasonable expectation in growing marijuana in their house, regardless of the temperature.

As the Court said in United States v. Place,

"...Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrasment and inconvenience entailed in less discriminate and more intrusive investigative methods."Thus, there is a major difference between dog sniffing and thermal imaging devices. While inaccurate dogs can create problems, that seems more of an administrative problem that can be dealt with by magistrates on a case-by-case basis. Obviously if a dog is incorrect 90% of the time, it creates various problems. However, if the dog is correct 90% of the time, there seems to be little constitutional problem.

Since Kyllo and Caballes are so different, it's not surprising the decision was 6-2. And surely, if Chief Justice Rehnquist was in better health, it would have been a 7-2 decision.

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