Alfano: Interior-Vehicle Sniffs

ALFANO FINAL (DO NOT DELETE)
4/2/2012 2:34 PM
Notes
Interior-Vehicle Sniffs: Reining in the
Leash on Drug-Dog Sniffs and Searching
for the Search that Courts Have Yet to
Find
JESSICA ALFANO
ABSTRACT
Canines have become a widely accepted method for drug detection

and crime prevention due to their exceptional sense of smell. The U.S.
Supreme Court has held that a drug dogs positive alert to the presence of
illegal drugs provides the police with probable cause to search a vehicle, a
view most recently reinforced in Illinois v. Caballes. The Court, however,
has not decided a vehicle-sniff case where a drug dog physically invades
the vehicles interior and alerts to the presence of illegal drugs only after
entry. Lower courts have deemed interior sniffs absent any detectable
handler facilitation to be outside the purview of the Fourth Amendment
because the drug dogs actions were merely instinctive.
This Note highlights the Courts failure to acknowledge that a trained
drug dog performing a vehicle sniff is a state actor, and, thus, the canines
entry into the vehicles interior constitutes an unconstitutional Fourth
Amendment search. The less intrusive nature rationale underlying
approval of drug-dog sniffs is severely weakened in an interior sniff, and
an individuals reasonable expectation of privacy is different.
Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Economics, Tufts
University (2008). I dedicate this Note to my grandfathers, Dr. Joseph G. DiStasio and Dr.
Louis F. Alfano Sr., whose lifetime achievements and work ethic are truly inspirational. I
thank my parents and family for their unconditional love and support, and I am grateful for
the hard work of my New England Law Review colleagues during the editing and revision
process. Lastly, this would not have been possible without my backbone, Michael Powell,
whose love and encouragement motivated me throughout the writing process and, of course,
my Rottweiler, Justice Powell.
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INTRODUCTION
ederal, state, and local law enforcement personnel have been using
canines for their exceptional sense of smell for many years in a wide
variety of tasks including: search and rescue missions, narcotics
detection, bomb finding, and contraband-agricultural-product detection.1
Since the U.S. military began training canines during World War II as
guards, messengers, mine detectors, scouts, and sled dogs, 2 canines have
become instrumental to law enforcement in this country. 3 In terms of drug
detection, trained drug dogs use their highly attuned sense of smell at the
direction of police handlers to find hidden drugs that a human investigator
might not otherwise detect.4 As such, drug-dog teams have become the
most widely used, broadly sensitive, accurate, fast, mobile, flexible, and
durable system available for detecting illegal drugs.5
However, although canine sense of smell may be far superior to
humans, it is not always perfect.6 It is well established that the Fourth
Amendment to the U.S. Constitution protects privacy in an array of
situations,7 and the U.S. Supreme Court has given canine sniffs a unique
universe, subject to a unique Fourth Amendment analysis.8 A strong
jurisprudential foundation exists upon which courts have determined that
1 Julio E. Correa, The Dogs Sense of Smell, ALA. COOP. EXTENSION SYS. 1-2 (June 2011),
http://www.aces.edu/pubs/docs/U/UNP-0066/UNP-0066.pdf (stating that a dog has more than
220 million olfactory receptors in its nose, whereas a human has only about five million and
defining olfaction as the act or process of smelling).
2 ANNA M. WALLER, DOGS AND NATIONAL DEFENSE 21 (1958).
3 See Charles Mesloh et al., Sniff Test: Utilization of the Law Enforcement Canine in the Seizure
of Paper Currency, 52 J. OF FORENSIC IDENTIFICATION 704, 708 (2002).
4 OFFICE OF THE CITY AUDITOR, PORTLAND POLICE BUREAU: DRUG TRAINING AID
PROCEDURES STRENGTHENED, RECENTLY IMPROVED PRACTICES SHOULD CONTINUE 2 (May 2010)
[hereinafter PORTLAND POLICE BUREAU], available at http://www.portlandonline.com/auditor/
index.cfm?a=301483&c=51639.
5 Charles Mesloh et al., Scent as Forensic Evidence and Its Relationship to the Law Enforcement
Canine, 52 J. OF FORENSIC IDENTIFICATION 169, 175 (2002) (citing M. Williams et al., Canine
Detection Odor Signatures for Explosives, SPIE CONFERENCE ON ENFORCEMENT & SECURITY
TECHNOLOGIES, Nov. 1998, at 291, 291).
6
Craig Scheiner, Time Is of the Esscents: The Fourth Amendment, Canine Olfaction, and Vehicle
Stops, FLA. B.J., Mar. 2002, at 26, 26; see also Andrew E. Taslitz, Does the Cold Nose Know? The
Unscientific Myth of the Dog Scent Lineup, 42 HASTINGS L.J. 15, 19 (1990).
7 Steven B. Dow, Step Outside, Please: Warrantless Doorway Arrests and the Problem of
Constructive Entry, 45 NEW ENG. L. REV. 7, 8 (2010); see, e.g., Roe v. Wade, 410 U.S. 113, 152
(1973); Katz v. United States, 389 U.S. 347, 356-57 (1967); Griswold v. Connecticut, 381 U.S.
479, 485-86 (1965).
8 Ken Lammers, Canine Sniffs: The Search That Isnt, 1 N.Y.U. J. OF L. & LIBERTY 845, 856
(2005).
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an exterior vehicle sniff by a canine trained in narcotics detection is sui

generis9 and is not a search under the Fourth Amendment.10 However,
current jurisprudence offers little support for the proposition that an
otherwise lawful canine sniff becomes an unconstitutional, warrantless
search under the Fourth Amendment when the alert only occurs after the
canine has physically invaded the vehicle.11
Failure to account for strong Fourth Amendment interests in favor of
classifying an interior sniff as a search could immunize significant lawenforcement conduct that should not enjoy immunity from constitutional
constraints.12 In the wake of Illinois v. Caballes, a recent U.S. Supreme Court
decision upholding the validity of an exterior-vehicle canine sniff, the
validity of interior canine sniffs remains an open question. 13 For as long as
the police have at their fingertips the ability to conduct canine sniffs
whenever they choose, the threat of such sniffs will be ever-present.14
Part I of this Note will discuss the legal framework for analyzing
Fourth Amendment searches and canine sniffs, including: the reasonable
expectation of privacy doctrine; traditional canine-sniff jurisprudence not
treating exterior vehicle sniffs as searches; and how courts have dealt
with the issue of drug dogs instinctive actions of leaping into a vehicle
and sniffing the interior before alerting to the presence of narcotics. Part II
will discuss how a drug dog is a state actor. Part III will examine why the
drug dog, as a state actor conducting an interior vehicle sniff, should be
subject to a Fourth Amendment search analysis. Part IV will analyze the
judicial acceptability of interior and exterior canine sniffs and argue that
canine-sniff jurisprudence where a drug dog instinctively acts and
physically invades a vehicles interior erodes constitutional rights. Finally,
Part V will show that current analysis fails to preclude law enforcement
from actually training drug dogs to physically invade vehicles during
exterior sniffs.
9 BLACKS LAW DICTIONARY 1572 (9th ed. 2009) (defining sui generis as of its own kind or
class).
10
See infra Part I.B.2.

See United States v. Stone, 866 F.2d 359, 363-64 (10th Cir. 1989) (holding that a drug dog
alerting only after physically entering the vehicle was not a Fourth Amendment search).
11
12
Nina Paul & Will Trachman, Comment, Fidos and Fi-donts: Why the Supreme Court Should
Have Found a Search in Illinois v. Caballes, 9 BOALT J. CRIM. L. 1, 1-2 (2005).
13 See id. at 12 (*T+here remain compelling arguments for finding that at least some genres
of dog sniffs should be considered searches under the Fourth Amendment.).
14
Id.
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I.
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Fourth Amendment Jurisprudential Background and Trained

Canines
A. Overview of the Fourth Amendment Search
The Fourth Amendment of the U.S. Constitution guarantees in part:

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . . .15 In Katz v. United
States, the U.S. Supreme Court considered when a person is guaranteed
Fourth Amendment protections against unreasonable searches and
seizures.16 The Court stated: [T]he Fourth Amendment protects people,
not places, and [w]hat a person knowingly exposes to the public . . . is
not a subject of Fourth Amendment protection.17 Justice Harlans
concurrence in Katz set forth what has become the prevailing test for
Fourth Amendment privacy issues:18 [T]here is a twofold requirement,
first that a person have exhibited an actual (subjective) expectation of
privacy and, second, that the expectation be one that society is prepared to
recognize as reasonable.19
However, the U.S. Supreme Court has failed to consistently apply its
Katz holding to subsequent cases.20 The Supreme Courts holding in Bond v.
United States illustrates this failure.21 There, the Court held that law
enforcements tactile manipulation of the defendants luggage in an
overhead compartment out of his reach was unconstitutional because
[p]hysically invasive inspection is simply more intrusive than purely
visual inspection.22
In Kyllo v. United States, the Supreme Court addressed the issue of
sense-enhancing technology based on law enforcements use of a thermal
imager to scan and detect heat emanating from the defendants home.23 The
district court described the imager as non-intrusive and as unable to
show any people or activity within the walls of the structure.24
15
U.S. CONST. amend. IV, cl. 1.

389 U.S. 347, 351 (1967).
17 Id.
18 In United States v. Jones, the Supreme Court recently reinforced the significance of
Harlans concurrence stating: Our later cases have applied the analysis of Justice Harlans
concurrence in that case . . . . 132 S. Ct. 945, 950 (2012).
19 Katz, 389 U.S. at 361 (Harlan, J., concurring).
20 See, e.g., Bond v. United States, 529 U.S. 334, 337 (2000).
21 Id. at 335-39.
22 Ric Simmons, The Two Unanswered Questions of Illinois v. Caballes: How to Make the World
Safe for Binary Searches, 80 TUL. L. REV. 411, 437 (2005) (quoting Bond, 529 U.S. at 337).
16
23
24
533 U.S. 27, 29 (2001).

Id. at 30.
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Nevertheless, the Supreme Court subsequently held that the police engage
in a presumptively unreasonable search under the Fourth Amendment
where they use sense-enhancing technology to obtain any information
regarding the interior of the home that could not otherwise have been
obtained without physical intrusion into a constitutionally protected
area, and the technology in question is not in general public use.25
Justice Scalias opinion makes clear the need to protect Fourth
Amendment privacy from being eroded by the use of police technology.26
B. Canine Sniffs Are Not Generally Searches Under the Fourth
Amendment.
Although a canine sniff accomplishes the same goal as mechanical
sense-enhancing technology, such as a thermal imager, the U.S. Supreme
Court has taken a different approach to canine sniffs as an investigative
police tool.27 There are three fundamental rationales underlying caninesniff jurisprudence: (1) sniff are not physically intrusive;28 (2) canines only
sense smells emanating from containers or vehicles;29 and (3) canines only
alert to the scent of contraband, which does not enjoy Fourth Amendment
protection.30
1.
Canine Sniffs as Sui Generis
In United States v. Place, the U.S. Supreme Court ruled that a canine
sniff of a suitcase was sui generis and not a search under the Fourth
Amendment.31 Offering two rationales for its conclusion, the Court stated
that: (1) a canine sniff is much less intrusive relative to an officer[]
rummaging through the contents of the luggage, and (2) the sniff detected
evidence of contraband without physically or visually intruding upon
noncontraband items.32 The Court also noted that it was aware of no other
investigative procedure . . . so limited both in the manner in which the
information is obtained and in the content of the information revealed by
the procedure.33
25
Id. at 34 (quoting Silverman v. United States, 365 U.S. 505, 512 (1961)).
Dow, supra note 7, at 19; see Kyllo, 533 U.S. at 33-34.
27 See Lammers, supra note 8, at 847.
28 See, e.g., United States v. Place, 462 U.S. 696, 707 (1983) (*T+he manner in which
information is obtained through [a sniff+ is much less intrusive than a typical search.).
29 See, e.g., United States v. Hutchinson, 471 F. Supp. 2d 497, 510 (M.D. Pa. 2007).
30 See, e.g., Illinois v. Caballes, 543 U.S. 405, 408 (2005); Place, 462 U.S. at 707 (*T+he sniff
discloses only the presence or absence of narcotics, a contraband item.).
26
31
32
33
462 U.S. at 707.

Id.
Id.
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Soon after Place, in United States v. Jacobsen, the Court analyzed the use
of a chemical test to determine the presence of narcotics. 34 In that opinion,
the Court abandoned its much less intrusive language and instead
focused on the information revealed by the procedure.35 Place and Jacobsen
fit within the binary search doctrinethey were both searches that
could, and did, reveal only evidence of illegal activity.36 Binary searches
can provide law enforcement with a direct answer to whether an
individual is presently engaged in illegal activity without invading that
individuals privacy.37 The Jacobsen Court declared that such binary
searches do not implicate the Fourth Amendment.38 In Indianapolis v.
Edmond, the U.S. Supreme Court extended the reasoning from Place in
holding that an exterior sniff of an automobile does not require entry into
the car and is not designed to disclose any information other than the
presence or absence of narcotics.39 The Court concluded that a sniff by a
dog that simply walks around a car is much less intrusive than a typical
search.40
Although the Kyllo Court held that the use of sense-enhancing
technology to obtain information without physical intrusion into a
constitutionally protected area is an impermissible search without a
warrant,41 courts have treated the use of canines enhanced sense of smell
much differently.42 In Illinois v. Caballes, the Court noted that the key
difference between a drug-dog sniff and sense-enhancing technology is
that the drug-dog sniffs reveal only evidence of wrongdoing, whereas
34
United States v. Jacobsen, 466 U.S. 109, 111 (1984).

Id. at 122-24. The Court merely asked whether the government activity infringe*d+ an
expectation of privacy that society is prepared to consider reasonable on the issue of whether
the chemical test was a search. Id. at 122. Summarizing Place, the Court stated that the
canine sniff was not a search because the governmental conduct could reveal nothing about
noncontraband items. Id. at 124 n.24.
35
36
See United States v. Colyer, 878 F.2d 469, 474 (D.C. Cir. 1989) (stating that *a+s in Place,
the driving force behind Jacobsen was the recognition that because of the binary nature of the
information disclosed by the sniff, no legitimately private information is revealed even
though Place and Jacobsen did not themselves use the term binary).
37
Simmons, supra note 22, at 413.

See Jacobsen, 466 U.S. at 124.
39 Indianapolis v. Edmond, 531 U.S. 32, 40 (2000).
40 Id. (emphasis added) (quoting United States v. Place, 462 U.S. 696, 707 (1983)).
41 See Kyllo v. United States, 533 U.S. 27, 28 (2001) (quoting Silverman v. United States, 365
U.S. 505, 512 (1961)).
38
42
See, e.g., United States v. Almeida, No. 2:11-cr-127-DBH, 2012 WL 75751, at *10 (D. Me.
Jan. 9, 2012) (approving of decisions upholding vehicle-interior sniffs and contrasting drugdog searches with man-made investigatory products).
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sense-enhancers currently reveal more than just illegal activity. 43 The

Caballes Court, in other words, reasoned that the canine sniff does not
conflict with the Kyllo reasoning because the canine sniff is squarely
incapable of revealing something legal.44 Further, Caballes held that
reasonable, articulable suspicion is not required to justify the use of a drug
dog to sniff a vehicle during a traffic stop and that a drug-dog sniff alone
is never a Fourth Amendment search,45 even though the use of
technological aids to achieve the same goal was held to be a search in
Kyllo.46 In stating that any interest in possessing contraband cannot be
deemed legitimate, and thus, governmental conduct that only reveals the
possession of contraband compromises no legitimate privacy interest,
the Caballes majority assumed canines to be utterly infallible detectors of
contraband.47 However, the Caballes Court limited its holding: In this case,
the dog sniff was performed on the exterior of respondents car while he
was lawfully seized for a traffic violation.48
2.
Other U.S. Courts on Instinctive Canine Actions and

Interior Sniffs
The issue of interior sniffs was highlighted in the Tenth Circuit case of
United States v. Stone, in which the defendant was stopped for speeding and
opened the rear of the hatchback to retrieve a speeding citation from earlier
that day to show the officer.49 Other officers arrived on scene with a drug
dog that circled the vehicle, jumped into the open hatchback, and then
keyed on a duffel bag, which contained illegal narcotics.50 The court
held that the alert by the drug dog gave police probable cause to search the
vehicle. Furthermore, the fact that the drug dog jumped into the hatchback
did not violate the Fourth Amendment because the dog jumped into the
43
See Illinois v. Caballes, 543 U.S. 405, 409-10 (2005).

See Lammers, supra note 8, at 847.
45 See Caballes, 543 U.S. at 409; The Supreme Court, 2004 TermLeading Cases, 119 HARV. L.
REV. 169, 182 (2005).
46 See Kyllo, 533 U.S. at 33, 40. But see Cecil J. Hunt, II, Calling in the Dogs: Suspicionless Sniff
Searches and Reasonable Expectations of Privacy, 56 CASE W. RES. L. REV. 285, 287-89 (2005) ([I]t
is clear that whether the evidence is gathered by a live drug-sniffing dog or an electronic
handheld device, the legal principles involved are the same.).
47 Caballes, 543 U.S. at 408 (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984)). The
Caballes majority failed to address actual error rates in cases even though actual cases have
demonstrated the less-than-perfect reliability of canine sniffs. See Lammers, supra note 8, at
851-52; see also Caballes, 543 U.S. at 412 (Souter, J., dissenting) (citing judicial opinions
describing the less-than-perfect accuracy of dog sniffs).
44
48
49
50
Caballes, 543 U.S. at 409.

United States v. Stone, 866 F.2d 359, 361 (10th Cir. 1989).
Id.
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hatchback on his own volition and immediately alerted to contraband. 51

Although the defendant argued the exclusionary rule was intended to
exclude a dog from jumping into a place thats open where a smell or an
odor is emanating from, the lower court disagreed without citing legal
authority for its stance.52 The Tenth Circuit agreed with the lower court and
upheld the validity of the interior sniff as not violating the Fourth
Amendment.53
In United States v. Hutchinson, during an exterior-vehicle sniff, the drug
dog apparently entered into the car via an open window prior to alerting
to the duffel bag on the back seat without first alerting to the exterior of
the vehicle.54 The court relied on the plain smell doctrine as an extension
of the plain view doctrine, stating that the doctrine applies where: an
odor emanates from a vehicle, the drug dog detects the scent from a lawful
location, the drug dog enters the vehicle on its own volition, and law
enforcement does not intervene or facilitate that entry. 55 The court held that
when a drug dog instinctively moves from the exterior to the interior of a
vehicle, without law enforcement prompting that move, no Fourth
Amendment violation occurs.56
More recently, in United States v. Pierce, during a lawfully conducted
traffic stop and exterior vehicle sniff, the drug dog went to the front
passenger side door[,] . . . jumped up onto his hind legs and proceeded to
reach his nose into the vehicle.57 The district court relied upon the legal
framework of Hutchinson and cases cited therein and found that a drug
dogs alert after breaching the interior of a vehicle was not a search
under the Fourth Amendment.58 The Third Circuit Court of Appeals
51
Id. at 362 (citation omitted).

Id. at 363.
53 Id. at 364.
54 United States v. Hutchinson, 471 F. Supp. 2d 497, 505 (M.D. Pa. 2007).
55 Id. at 510.
56 Id. at 506; see also United States v. Vazquez, 555 F.3d 923, 930 (10th Cir. 2009) (citing to
Stone when upholding the legality of a sniff where the dog instinctively entered the vehicle);
United States v. Williams, 690 F. Supp. 2d 829, 844-45 (D. Minn. 2010) (stating that the fact
that the passenger window of the vehicle was open, creating an opportunity for the dog to
breach the interior of the vehicle, did not render the search unlawful (citation omitted));
United States v. McKoy, 2007 WL 891356, at *7 (D.D.C. Mar. 22, 2007) (noting that the dogs
conduct in jumping into the *car+ was instinctive and was not facilitated by police officers);
United States v. Watson, 783 F. Supp. 258, 262 (E.D. Va. 1992) (relying on Stone to hold that
where there was no evidence that the police handler encouraged the dog to physically invade
the vehicle, the dogs instinctive actions did not violate the Fourth Amendment).
57 United States v. Pierce (Pierce II), 622 F.3d 209, 211 (3d Cir. 2010) (quoting the appellate
record at 140).
52
58
See id. at 213-15. The court of appeals stated that during a lawful traffic stop, the
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agreed.59 The court focused on the distinction between whether the drug
dogs action in physically intruding the vehicles interior was coached or
instinctive.60 In holding it to be instinctive and thus not a search, the court
stated that instinctive implies the dog enters the car without assistance,
facilitation, or other intentional action by its handler.61
3.
Interior Sniffs Facilitated by Officers Are

Unconstitutional Searches.
In United States v. Winningham, law enforcement had reasonable

suspicion to believe that a van was transporting illegal aliens near the New
Mexico-Mexico border.62 Border patrol agents validly stopped the van, and
one of the agents opened the sliding door to inspect the interior. 63 A drugdog team arrived on the scene, and during the exterior sniff, the unleashed
drug dog jumped into the vehicle through the open door and
methodically sniffed the vans interior.64 The Tenth Circuit stated that
there was a readily apparent desire to facilitate a dog sniff of the vans
interior where officers opened the door and the handler unleashed the
dog before it physically invaded the van. 65 The court held that the sniff was
a search in violation of the Fourth Amendment. 66
Likewise, in State v. Freel, the Court of Appeals of Kansas stated that
the probable-cause requirement is triggered when law enforcement aids a
drug dogs entrance into a vehicle, such as by physically placing the dog
inside the vehicle.67 The Freel court determined that the probable-cause
requirement had been triggered where the videotape show[ed] [the
officer] facilitated the dogs entry into the car.68 The court recognized that
law enforcement cannot use drug dogs to accomplish that which they are
not permitted to do themselves.69 Here, this meant that the officer could not
place the drug dog inside the vehicle without first having probable cause to
narcotics dogs alert that led to the discovery of unlawful drugs in the automobile, in which
the dog jumped in through the open door, did not amount to an unlawful search under
the Fourth Amendment. See id. at 212, 214-15.
59
60
61
62
63
64
65
66
67
68
69
See id. at 213-15.

See id. at 214.
Id.
United States v. Winningham, 140 F.3d 1328, 1329 (10th Cir. 1998).
Id.
Id. at 1330.
Id. at 1331.
Id. at 1332-33.
32 P.3d 1219, 1225 (Kan. Ct. App. 2001).
Id.
Id. (citing United States v. Thomas, 787 F. Supp. 663, 684 (E.D. Tex. 1992)).
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search the vehicle.70

C. Canine-Handler Training and Certification
Drug dogs are not proficient drug-detection tools on their own; rather,
the handler is an integral component of a drug-dog team as [t]he olfactory
ability of the dog has little relevance if the handler cannot properly
interpret the alert of the dog.71 Effective training is achieved through
training the dog and handler together because the success of a drug dog is
dependent upon both parties understanding the applicable procedures
and, more importantly, upon the bond developed between both parties. 72
Although there is no single standard and no national procedure for drugdog training and certification,73 the typical procedure involves training the
dog to detect several narcotics, including marijuana, heroin, and cocaine.74
Police commonly train their canines using drug samples obtained from
drug seizures or from the Drug Enforcement Agency (DEA).75 Handlers
must also partake in ongoing training for different types and amounts of
drugs. In addition, drug-dog teams must be recertified regularly to remain
proficient.76 Even though many have deemed drug dogs to be infallibly
accurate detectors of odor, a drug dogs accuracy depends on the quality of
its training.77 Continuous training is therefore required to ensure that a
dogs error rate remains low and its reliability high. 78 The infallibility of
the canine nose has been indispensable to the underlying rationale that a
canine sniff can only detect the presence of illegal contraband and to the
justification of a canine sniffs constitutionality.79
70 Id.; see also State v. Warsaw, 956 P.2d 139, 143 (N.M. Ct. App. 1997) (stating that the
officer reached into the trunk to remove the glass-laden carpet because he expected the
narcotics dog to jump in there and holding that those activities constituted an illegal
search).
71
Mesloh et al., supra note 5, at 178.

Melanie Hamilton, How to . . . Start a K-9 Unit, POLICE: L. ENFORCEMENT MAG., Feb. 2003,
at 18, 22.
73 See Dan Hinkel & Joe Mahr, Drug Dogs Often Wrong, CHI. TRIB., Jan. 6, 2011, at 1.
74 See, e.g., PORTLAND POLICE BUREAU, supra note 4.
75 See, e.g., id.
76 E.g., id.
77 Lammers, supra note 8, at 852.
78 See Hinkel & Mahr, supra note 73. There have been cases where there were canine sniff
error rates as high as 38% and where the drug contamination rate of circulating currency was
established as 80%, rendering *the canines+ reaction meaningless. Lammers, supra note 8, at
851-52 (footnotes omitted) (discussing the difficulty in determining how accurate a drug dogs
alerts have been during its career).
72
79
See, e.g., Illinois v. Caballes, 543 U.S. 405, 408-09 (2005).
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D. Handler Cues and the Clever Hans Effect

During the training process, handlers are taught cueing, which is the
process by which a handler subtly informs the drug dog as to where the
target is located.80 Cueing may be done intentionally or unintentionally.81
Cueing can take on a myriad of forms, from overt measures, such as
physical motions and verbal commands, to inconspicuous changes in the
handlers gaze, posture, or proximity to the canine. 82 From this there exists
a likelihood that the handler can influence the canines reactions.83 Since
handler beliefs affect working dog outcomes,84 and experienced officers
often contemplate the location of drugs as they approach a vehicle, the
drug-dog team raises concern of the Clever Hans Effect in the course of
drug-dog sniffs.85
The Clever Hans Effect refers to a horse in the late 1800s that
audiences perceived as having the ability to perform a variety of tricks
unparalleled by other animals, including: arithmetic, reading, spelling, and
telling time.86 In reality, however, Clever Hans was not a mathematically
gifted horse but rather an animal that had learned how to read his masters
body language.87 Clever Hans answered questions correctlythrough
tapsby watching subtle differences in his masters facial expressions
80 Terry Fleck, Steve Nicely (Defense K-9 Expert) Update, U.S. POLICE CANINE ASSOC.,
http://www.uspcak9.com/training/nicely.html (last visited Mar. 30, 2012).
81 Lisa Lit et al., Handler Beliefs Affect Scent Detection Dog Outcomes, 14 ANIMAL COGNITION
387, 387-88 (2011), available at http://www.springerlink.com/content/j477277481125291/
fulltext.pdf; see J. CHRISTY JUDAH, BUILDING A BASIC FOUNDATION FOR SEARCH AND RESCUE
DOG TRAINING 105 (2007) (explaining that during cueing, handlers can intentionally or
unintentionally have a tendency to pause just a little longer at the real . . . source, pass by
nonhuman samples quicker, . . . or otherwise unintentionally physically communicate with
the dog that this is the correct sample).
82 Lit et al., supra note 81, at 392.
83 Id. at 392-93; Lammers, supra note 8, at 852. The human handlers were not only
distracted on almost every occasion by the stimulus aimed at them, but also transmitted that
distraction to their animalswho responded accordingly. M.K., Animal Behaviour: Clever
Hounds, THE ECONOMIST BABBAGE BLOG (Feb. 15, 2011, 9:05 AM), http://www.economist.com/
blogs/babbage/2011/02/animal_behaviour. Dogs *may+ cry*+ wolf at the unconscious behest
of their handlers. Id.
84
Lit et al., supra note 81, at 393.

See ROBERT H. WOZNIAK, Oskar Pfungst: Clever Hans (The Horse of Mr. von Osten), in
CLASSICS IN PSYCHOLOGY, 1855-1914: HISTORICAL ESSAYS 155, 157 (1999). The Clever Hans
Effect is an animals ability to learn a response to changes in a humans physical or vocal
characteristics. Lammers, supra note 8, at 852.
85
86
OSKAR PFUNGST, CLEVER HANS (THE HORSE OF MR. VON OSTEN): A CONTRIBUTION TO
EXPERIMENTAL ANIMAL AND HUMAN PSYCHOLOGY 21-23 (Carl L. Rahn trans., 1911) (1907),
available at www.gutenberg.org/files/33936/33936-h/33936-h.htm.
87
Id. at 141-42, 240.
530
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and posture that changed when the horse reached the correct answer. 88
Like horses, dogs are social animals that can become experts at reading
human body language. 89 Therefore, a drug dog that is responding to subtle
cues from its handler may be ostensibly sniffing for illegal drugs when it is
instead falling into the Clever Hans trap.90
ANALYSIS
II. State Actors, Canines, and Fourth Amendment Behavior
A. Court Views of the Drug Dogs Physical Intrusion as Instinctive
Handlers refer to a drug dogs physical intrusion into a vehicle during
the course of an exterior sniff as instinctive91 or behavior that is
mediated by reactions below the conscious level.92 In general, courts have
readily accepted handlers characterizations of a drug dogs actions as
instinct based.93 In United States v. Stone, the Tenth Circuit noted that even
though the drug dogs exterior sniff of the defendants vehicle was proper,
the dog created a troubling issue under the Fourth Amendment when it
entered the hatchback.94 However, the court agree[d] with the district
judge that the dogs instinctive actions did not violate the Fourth
Amendment.95 Similarly, courts have since stated that without evidence
that the handler improperly facilitated the drug dogs interior intrusion,
such interior sniffing is lawful.96
88
Eric Letendre, The Clever Hans Effect, THE DOG HACKER (Dec. 7, 2007), http://
ultimatedogblog.com/the-clever-hans-effect; Lit et al., supra note 81, at 387.
89 Lit et al., supra note 81, at 388; Steven D. Nicely, The Clever Hans Effect on the Judicial
System, K9 CONSULTANTS OF AMERICA 1 (2010), available at http://www.k9consultantsof
america.com/training_information/ARTICLES/Clever%20Hans%20and%20Judical%20System.
pdf.
90
Lammers, supra note 8, at 852.

See, e.g., United States v. Vazquez, 555 F.3d 923, 930 (10th Cir. 2009) (noting that the
district court relied on the officers testimony that the drug dogs entry into the vehicle was
based upon instinct and not facilitated by law enforcement).
92 THE AMERICAN HERITAGE COLLEGE DICTIONARY 719 (4th ed. 2002).
93 See Vazquez, 555 F.3d at 930 (stating that the lower court credited the officers testimony
on the determination that the drug dogs entry in the vehicle was instinctive).
91
94
866 F.2d 359, 363 (10th Cir. 1989).

Id. at 364.
96 See, e.g., Vazquez, 555 F.3d at 930; United States v. Williams, 690 F. Supp. 2d 829, 844-45
(D. Minn. 2010); United States v. Hutchinson, 471 F. Supp. 2d 497, 506 (M.D. Pa. 2007); United
States v. McKoy, 2007 WL 891356, at *6-7 (D.C. Cir. Mar. 22, 2007); United States v. Watson,
783 F. Supp. 258, 262, 265 (E.D. Va. 1992).
95
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531
The courts conclusion in United States v. Hutchinson that the breach of

the physical plane between the interior and the exterior of the vehicle was
not a Fourth Amendment search is fundamentally flawed. 97 Due to the lack
of jurisprudence on the interior sniff issue, the Hutchinson court relied
heavily on United States v. Stone but at the same time admitted that Stone
did not provide any legal authority for its conclusion that a dog sniff that
took place within a vehicle does not violate the Fourth Amendment if the
dogs entry is found to be voluntary . . . .98 The Stone conclusion has
likewise been the cracked foundation for much of, if not all, subsequent
interior sniff drug-dog jurisprudence to date.99
B. Drug Dog as a State Actor
Truly unconscious activity is instinctive.100 While it may appear as
though a dog is acting instinctively when it leaps into a vehicles interior
without overt detectable handler facilitation, it may actually be responding
to handler cues.101 Although the handler may be acting unconsciously and
thus instinctively, the dog may actually be acting upon handler cues it has
learned through daily and continual training with its handler. 102 In United
States v. Pierce, the district court based its conclusion that a dog sniff
inside a vehicle does not violate the Fourth Amendment if the dog enters
the vehicle voluntarily on the notion that the dog is an animal acting on
instinct and is not itself a state actor.103 The court failed to acknowledge,
97
See infra note 98 and accompanying text.

Hutchinson, 471 F. Supp. 2d at 507.
99 See, e.g., Watson, 783 F. Supp. at 265 (relying exclusively on Stone to conclude the search
was lawful because there was no evidence that the dog was encouraged to jump in the car by
its handler where the drivers side door was open and the drug dog climbed into the vehicle
before alerting to narcotics); Idaho Dept of Law Enforcement v. $34,000 U.S. Currency, 824
P.2d 142, 147 (Idaho Ct. App. 1991) (stating that the fact that the dog disobeyed a command
and instinctively jumped inside when the trunk was opened does not render the inventory
search invalid).
98
100 See Stayaway from Bnei Baruch, Carl G. Jung: Archetypes of the Collective Unconscious,
HELIUM (last updated May 14, 2007), http://www.helium.com/items/221986-carl-g-jungarchetypes-of-the-collective-unconscious (The collective unconscious . . . is an inborn instinct
. . . .).
101

See Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection
Dog, 85 KY. L.J. 405, 424 (1997) (Handler cues are conscious or unconscious signals given
from the handler that can lead a detection dog to where the handler thinks drugs are
located.). But see United States v. Vazquez, 555 F.3d 923, 930 (10th Cir. 2009); United States v.
Williams, 690 F. Supp. 2d 829, 844-45 (D. Minn. 2010); Hutchinson, 471 F. Supp. 2d at 506;
United States v. McKoy, 2007 WL 891356, at *6-7 (D.C. Cir. Mar. 22, 2007); Watson, 783 F.
Supp. at 262, 265.
102
103
United States v. Pierce (Pierce I), No. 08-126-JJF, 2009 WL 255627, at *5 (D. Del. Feb. 2,
532
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however, that the dog may have acted upon something other than its pure
animal instinct.104 Because of the extensive and ongoing training a canine
must receive to be deemed a reliable detector of narcotics, the drug dog
and its handler can be viewed as a single entity acting as a state actor.105
Furthermore, the drug dog can also be viewed as a state actor itself in two
possible ways: as an employee of the state and as a private actor acting on
behalf of the state.106
1.
Dog and Handler as One Inseparable Team
The relationship of a drug dog to its handler in a drug-dog team has

been described by at least one court as a mere extension of the officers
sensory faculties.107 As an integral team, drug dogs and their handlers
may share more than just training and search experience together
unintentional phenomenal cues [may] encourag[e] . . . dog[s] to
perform or alert[.]108 Canines are [h]abitual watcher[s] of . . . behavior
[that] see[] your intent even when you think you are giving nothing
away.109 Unexplained jumping is a common result of the Clever Hans
Effect, and it usually occurs in response to unintentional human cues that
mislead the dog.110 The frequency of this issue as it arises in canine training
suggests that the jump or leap appearing to be instinctive that leads to the
physical intrusion of a vehicle is anything but instinct. Instead, it is quite
possibly the result of a learned response to handler cues that may have
been consciously or unconsciously given to the drug dog.111
Additionally, as a handler takes his drug dog to the area to be
searched, any increases in the handlers biological indicators, including
blood pressure, heart rate, and breathing rate, generally cause measurable
changes within the handlers body.112 This . . . anticipatory sense travels to
the dog, and a domino effect of heightened excitement between the canine
2009).
104 See infra notes 108, 111, and accompanying text; see also Hinkel & Mahr, supra note 73
(discussing concerns that dogs can be miscued through improper handling).
105
See infra notes 115, 122, and accompanying text.
106
See infra notes 115, 122, and accompanying text.

107 United States v. Thomas, 787 F. Supp. 663, 684 (E.D. Tex. 1992).
108 JUDAH, supra note 81, at 106. The sense of smell is vital to a canine, and its own naturally
produced scents play an integral role in how the animal behaves in its environment. Id.
Pheromones are produced involuntarily and unconsciously . . . . ALEXANDRA HOROWITZ,
INSIDE OF A DOG: WHAT DOGS SEE, SMELL, AND KNOW 80 (2009). Unintentional cueing of the
dog can occur very easily. JUDAH, supra note 81, at 62.
109
110
111
112
HOROWITZ, supra note 108, at 167.

See Letendre, supra note 88; Lit et al., supra note 81, at 387-88.
See Lit et al., supra note 81, at 388.
See JUDAH, supra note 81, at 107.
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533
and handler ensues.113 As dogs are skilled readers of our behavior,114 the
drug dogs ability to sense and react to its handlers biological and
chemical changes suggests that the two members of the team act as one
entity serving a single purpose: to determine the presence of illegal drugs
within a target vehicle.115
A trained drug dogs behavior, including its alerts, must be
interpreted by its handler in order to have any recognizable meaning or
significance.116 Though courts generally regard a drug dogs alert as wholly
objective proof of the presence of drugs, the alert usually has a large
subjective component as well.117 An alert is a sign: its meaning derives
solely from the unification of the signifiedthe presence of illegal
narcoticsand the signifierthe drug dogs alerting actions.118 The drug
dogs handler is the means by which this sign, which is essential to
obtaining probable cause, is detected and interpreted. 119 Without the
handlers interpretation, the drug dogs alert has no legal significance;
without the drug dogs alert, the handler has no probable cause. 120 The
interdependency of the two beings creates a single entitya single state
actor.121
113
Id.
HOROWITZ, supra note 108, at 80.
115 See supra notes 112-113 and accompanying text; infra notes 118-120; cf. ECKHART TOLLE,
GUARDIANS OF BEING 114 (2009) (We are ultimately not separate . . . from . . . the dog . . . .).
116 See JUDAH, supra note 81, at 108.
117 See Vaughanbell, Sniffing Out the Unconscious, MIND HACKS (Feb. 19, 2011, 3:17 AM),
http://mindhacks.com/2011/02/19/sniffing-out-the-unconscious (*W+hen the human handlers
become suspicious the dogs are more likely to seem to detect suspicious scents, making the
process a lot more subjective than the search teams like to believe.); see, e.g., United States v.
Rosario-Peralta, 199 F.3d 552, 562 (1st Cir. 1999) (explaining that handler testimony assists in
interpreting the signal from the canine); United States v. Outlaw, 134 F. Supp. 2d 807, 813
(W.D. Tex. 2001) (*A+n alert is simply an interpretation of a change in the dogs behavior by a
human handler.).
114
118
FERDINAND DE SAUSSURE, COURSE IN GENERAL LINGUISTICS 70-71 (Charles Bally et al.

eds., Roy Harris trans., Open Court Publg Co. 1989) (1972). A sign is a combination of a
concept and a sound-image where the concept is what is signified and the sound-image is the
signifier. Id. at 66. The complete signs value comes from the way the signifier and the
signified unite. Id. at 70-71.
119
See id. at 68.

See Bird, supra note 102, at 422; see also SAUSSURE, supra note 118, at 68 (stating that the
signified and signifying elements alone are nothing, as they blur into a shapeless mass).
121 But see United States v. Winningham, 140 F.3d 1328, 1329-31 (10th Cir. 1998); United
States v. Thomas, 787 F. Supp. 663, 684 (E.D. Tex. 1992).
120
534
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2.
v. 46 | 519
Drug Dog as a State Actor Under Agency Theory
Setting aside the argument that a drug dog and its handler are so
intertwined that they constitute a single state entity, the drug dog should
nonetheless be regarded as an agent of the state for the purposes of a
Fourth Amendment analysis.122 Research on the hourly cost of canine units
shows that they cost far less than minimum-wage employees.123 As long as
their basic needs are met and they are allowed to work, canines are
considered easily pleased employees.124 According to the National Narcotic
Detector Dog Association, one kind of canine team is a commissioned law
enforcement officer, working a canine for a law enforcement agency, with
the responsibilities and duties of locating narcotics.125 A canine can
therefore be categorized as an employee of the state.126 Basic agency law
states that employees are agents of their employers, and, as such, a canine
working within a police unit squarely fits within this definition of an
agent.127 Further, sources for funding these canine employees include the
Department of Justice and the Department of Homeland Security. 128 In
addition, police departments may have their own specially marked K-9
cruisers and even entire specialty K-9 units with significant resources
and officers dedicated to these canines.129
In drug investigations, police use canines solely as a drug-detection
technology.130 Canines can uncover drugs that human officers cannot smell
122 See RESTATEMENT (THIRD) OF AGENCY 1.01 (2006) (Agency is the fiduciary
relationship that arises when one person (a principal) manifests assent to another person (an
agent) that the agent shall act on the principals behalf and subject to the principals control,
and the agent manifests assent or otherwise consents so to act.).
123
See JAY RAPP, HOW TO TRAIN DOGS FOR POLICE WORK 8 (1990).
See id.
125 Narcotic Detection Standards, NATL NARCOTIC DETECTOR DOG ASSN (July 17, 2008),
http://www.nndda.org/official-docs/docs_download/2-narcotics-detection-standard.
124
126 See BLACKS LAW DICTIONARY 602 (9th ed. 2009) (defining employee as *a+ person
who works in the service of another person (the employer) under an express or implied
contract of hire, under which the employer has the right to control the details of work
performance).
127 See BLACKS LAW DICTIONARY 72 (9th ed. 2009) (defining agent as *o+ne who is
authorized to act for or in place of another).
128 David Eric Anderson, K9 Units in Small Departments: Overcoming Budget Constraints
for Forming and Maintaining the Unit 20 (undated) (unpublished B.S. thesis, Mount Olive
College), available at http://www.uspcak9.com/pdf/k9UnitsInSmallDepartments.pdf.
129
See id. at 11-12.

See Hunt, supra note 46, at 287-88 (2005) (discussing the extensive science, training, and
expertise required for successfully implementing a drug-dog team as fitting within the
definition of police technology).
130
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535
and might not find on their own.131 Drug dogs and their handlers partake
in regular training in order to maintain proficiency in detecting narcotic
odors.132 Likewise, the agencies that employ drug dogs require certification
and recertification as often as twice per year.133 Hence, although canines
have a naturally enhanced sense of smell, a drug-dog team is not a reliable
investigative tool for law enforcement without continuous training and
certification.134 Put differently, a drug dogs ability to accurately detect the
presence of illegal drugs within a vehicle is necessarily dependent upon the
training it receives from law enforcement.135
The statethrough training, certifying, and maintaining onsite
physical control of a drug dog by using a leash 136controls the means by
which a dog acts: an employer-employee relationship under agency law. 137
As an agent of its employer, an employees impermissible actions within
the scope of his employment will impute liability to the employer as if the
employer had committed those acts himself.138
State agents are prohibited from entering a vehicle to make a
warrantless search for illegal drugs unless they have probable cause to
believe contraband is located there.139 As an agent, the drug dogs actions
should be imputed upon the state; thus a drug dogs entrance into a vehicle
without probable cause violates the Fourth Amendment. 140
131
PORTLAND POLICE BUREAU, supra note 4, at 2.

See, e.g., id.
133 See, e.g., id.
134 Cf. Hinkel & Mahr, supra note 73, at 1 (stating that many unjustified searches result
from poorly trained drug-dog teams).
132
135
Cf. id.
A leash is a mechanism to control the radius of a canines movement. See STANLEY
COREN, HOW DOGS THINK: UNDERSTANDING THE CANINE MIND 214 (2004) (describing a benefit
of leash training as direct handling of the dog); CESAR MILLAN WITH MELISSA JO PELTIER,
HOW TO RAISE THE PERFECT DOG 165 (2009) (discussing the leash as a physical control over the
canine).
137 See RESTATEMENT (THIRD) OF AGENCY 7.07(3)(a) (2006) (defining employee as an
agent whose principal controls or has the right to control the manner and means of the agents
performance of work).
136
138
Id. 7.07(1).
See, e.g., Chambers v. Maroney, 399 U.S. 42, 48 (1970) (*A+utomobiles . . . may be
searched without a warrant . . . provided that there is probable cause to believe that the car
contains articles that the officers are entitled to seize. (citing Carroll v. United States, 267 U.S.
132, 153-56 (1925)).
139
140
Cf. Smith v. Maryland, 442 U.S. 735, 739 n.4 (1979) (assuming that the telephone
company was an agent of the police for purposes of state action when it installed a pen
register on the defendants telephone line).
536
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v. 46 | 519
Even still, failure to adopt a single-state-actor or employee-as-agent

view of drug dogs does not cause the state-actor argument to fail.141 In
United States v. Pierce, the district court stated that the dog is an animal
acting on instinct and is not itself a state actor, and, consequently, its
instinctive actions as a private actor did not transform the exterior sniff into
an interior Fourth Amendment search.142 Nevertheless, the U.S. Supreme
Court has held that private actors who perform functions at the direction of
the state can themselves become state actors.143 Therefore, drug dogs are
private actors acting on behalf of the state and, through agency law, are
subject to the same constitutional restraints as their police-handlers.144
III. Drug Dog Acting in Capacity as State Actor During Investigations
As part of a law-enforcement team, a drug dog who conducts a vehicle
sniff is either present in the law-enforcement vehicle that initially stops the
target vehicle or is summoned to the scene with its handler by another law
enforcement agent.145 The drug dogs presence at the scene is not random
or coincidental.146 The dog was not freely roaming the streets only to
fortuitously stumble upon a vehicle that law enforcement suspected
contained drugs or other contraband. 147 Rather, like its officer-handler and
any other law enforcement agents that may be called to the scene, the
purpose of a drug dogs presence is the same as that of the law
enforcement agentswho are unquestionably state actorsto determine
whether the vehicle contains evidence of illegal activity. 148 That purpose
continues as a drug dog conducts a vehicle sniff.149 Thus, a drug dog, who
was either present when a state actor initially stopped the vehicle or was
specifically brought to the target vehicle by another state actor, conducts
the vehicle sniff in his capacity as a state actor.150
141
See infra notes 143-144 and accompanying text.

Pierce I, No. 08-126-JJF, 2009 WL 255627, at *5 (D. Del. Feb. 2, 2009) (emphasis added).
143 See, e.g., Lugar v. Edmonson Oil Co., 457 U.S. 922, 941 (1982).
144 Cf. id.
145 See, e.g., Illinois v. Caballes, 543 U.S. 405, 406 (2005).
146 See, e.g., id.
147 See, e.g., id. (When *the officer+ radioed the police dispatcher to report the stop, a
second trooper . . . a member of the Illinois State Police Drug Interdiction Team, overheard the
transmission and immediately headed for the scene with his narcotics-detection dog.).
142
148
149
150
See, e.g., id. at 409.

See, e.g., id.
Cf. Lugar v. Edmonson Oil Co., 457 U.S. 922, 941 (1982).
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537
A. Canine Sniffs Based on More Than Just Instinct and Natural Ability
In United States v. Pierce, the Third Circuit affirmed the district courts
finding that a drug dogs alert after breaching the interior of a vehicle was
not a search under the Fourth Amendment.151 Although neither the U.S.
Supreme Court, nor the Third Circuit, had yet addressed the issue, the
district court looked to decisions on factually similar cases handed down in
the Tenth Circuit and another district court within the Third Circuit.152 The
district court stated: Both courts concluded that a dog sniff inside a
vehicle does not violate the Fourth Amendment if the dog enters the
vehicle voluntarily, because the dog is an animal acting on instinct and is
not itself a state actor.153 Nonetheless, even if it is true that the use of
drug dogs in this context is not a search, surely such conduct is close to the
line, considering that it is quite different from the sniffing of inanimate
and unattended objects.154 However, the court concluded that the canine
sniff of both the exterior and interior of [the] Defendants vehicle was not a
search within the meaning of the Fourth Amendment.155
Though the courts have relied on the instinctive nature of the drug
dogs behavior in physically invading the vehicle, [t]he behavior of a dog
is the result of many factors. Some of these may include heredity, natural
instinct, basic senses, past experiences and basic drives.156 Put another
way, instinctive behavior does not have an automatic totally unlearned
quality of instinct.157 Charles Darwin similarly suggested that
domestication destroys natural instincts.158 This supports the notion that
any action of a caninebecause the canine is a domesticated animal
regardless of how instinctive and unassisted it may appear, is never fully
151
Pierce II, 622 F.3d 209, 214-15 (3d Cir. 2010).

See United States v. Hutchinson, 471 F. Supp. 2d 497, 505-10 (M.D. Pa. 2007)); Pierce I,
No. 08-126-JJF, 2009 WL 255627, at *5 (D. Del. Feb. 2, 2009) (citing United States v. Stone, 866
F.2d 359, 363-64 (10th Cir. 1989). In Hutchinson, *a+ drug-detecting canine . . . sniffed the
vehicles exterior then jumped through an open window and alerted on a duffle bag in the
back seat*,+ and the court concluded that the dogs instinctive action, unprompted and
unassisted by police officers, did not constitute a search under the Fourth Amendment. see
Hutchinson, 471 F. Supp. 2d at 500, 505-10; Pierce I, 2009 WL 255627, at *6.
152
153
Pierce I, 2009 WL 255627, at *5.

Wayne R. LaFave, The Routine Traffic Stop from Start to Finish: Too Much Routine, Not
Enough Fourth Amendment, 102 MICH. L. REV. 1843, 1897 (2004) (quoting Doe v. Renfrow, 451
U.S. 1022, 1026 n.4 (1981) (Brennan, J., dissenting from denial of certiorari)).
155 Pierce I, 2009 WL 255627, at *6.
156 Behavior of Dogs, U.S. POLICE CANINE ASSN, http://www.uspcak9.com/training/
behaviourofdogs.cfm (last visited Mar. 27, 2012).
154
157
158
Id.
CHARLES DARWIN, ON THE ORIGIN OF SPECIES 215 (David Quammen ed., 2008).
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v. 46 | 519
the sole product of instinct.159 Therefore, the courts reliance on canine

instinct, in assessing the validity of an interior sniff after canine entry
into a vehicle without probable cause, is misplaced.160
B. Fourth Amendment Search in Capacity as State Actor
1.
More Physically Intrusive
The U.S. Supreme Court has held a search which is reasonable at its
inception may violate the Fourth Amendment by virtue of its intolerable
intensity and scope.161 It is therefore reasonable to suggest that a sniff,
which is reasonable at its inception, may likewise violate the Fourth
Amendment if the intensity and scope become intolerable.162 Put another
way, even though the Court readily accepts an exterior sniff as reasonable,
it does not follow that an expanded-scope sniff, one that involves physical
intrusion into a vehicles interior, is necessarily also reasonable. 163 Courts
have repeatedly held the physical intrusion by a drug dog into a vehicle
that leads to an alert where the drug dogs actions were instinctive and
not facilitated does not render the search invalid.164 Nevertheless, courts
have not extended the analysis set forth in United States v. Thomas
regarding when a drug dogs entry into a vehicle constitutes an invasive
search.165 The Thomas court stated:
No probable cause was necessary for the dog to sniff the outside
of the car because the dog merely amplified the human olfactory
capacity, which under the circumstances would not have been a
search under the Fourth Amendment. For the very same reason,
the placing of a dog inside the trunk and passenger compartment
of a car must be considered an invasive search requiring probable
cause. Just as an officer could not enter the passenger
compartment or trunk of a vehicle to conduct a search without
probable cause, neither can a canine be placed inside a car on less
than this standard.166
159
See Behavior of Dogs, supra note 156.

See infra note 172 and accompanying text.
161 392 U.S. 1, 18 (1968).
162 See id.
163 See generally Illinois v. Caballes, 543 U.S. 405, 407-10 (2005).
164 See, e.g., Pierce II, 622 F.3d 209, 212-15 (3d Cir. 2010); United States v. Vazquez, 555 F.3d
923, 930 (10th Cir. 2009); United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007); United States
v. Almeida, No. 2:11-cr-127-DBH, 2012 WL 75751, at *10 (D. Me. Jan. 9, 2012).
160
165
166
See sources cited supra note 164.

United States v. Thomas, 787 F. Supp. 663, 684 (E.D. Tex. 1992) (citation omitted).
2012
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539
Currently, then, exterior sniffs are not considered searches under the
Fourth Amendment.167 Because the level of intrusion in an interior sniff is
higher than that of an exterior sniff, interior sniffs should constitute
searches.168 Therefore, in order to justify interior sniffs under Terry v.
Ohio, the government would need to show a higher level of interest to
avoid obtaining a warrant. 169
On a similar note, in Bond v. United States, the U.S. Supreme Court
stated that [p]hysically invasive inspection is simply more intrusive than
purely visual inspection.170 As such, one of the fundamental bases for
permitting exterior drug dog sniffsthat they are less intrusive than a
typical searchis not present when a drug dogs more intrusive physical
invasion results in an interior sniff.171 Courts that have addressed this
interior sniff issue have erroneously failed to incorporate the more
physically intrusive nature of an interior sniff into their analyses. 172
Just as an individual who places a bag in an overhead compartment
anticipates that their property might be exposed to the physical
manipulation of others, including passengers attempting to fit their own
bag into the compartment, an individual who drives a vehicle on public
roadways can expect that his or her vehicle may be exposed to certain
types of exterior canine sniffing, even by dogs owned by private citizens. 173
Similarly, a federal agents physical manipulation of luggage is analogous
to a drug dogs physical intrusion and subsequent sniffing inside the
vehicle. Just as a federal agents tactile manipulation far exceeds the
casual contact *one+ . . . expects from other passengers, a drug dogs
intrusion into the vehicle far exceeds the casual contact and exterior
167
See United States v. Place, 462 U.S. 696, 707 (1983).
168
Thomas, 787 F. Supp. at 684.
169
Cf. Indianapolis v. Edmond, 531 U.S. 32, 40 (2000).

170 529 U.S. 334, 337 (2000).
171 Compare Place, 462 U.S. at 707 (finding exposure of defendants luggage to a trained
canine in a public place did not constitute a search within the Fourth Amendment), with
United States v. Stone, 866 F.2d 359, 363 (10th Cir. 1989) (holding that although an interiorvehicle search without probable cause is invasive, a drug dogs invasion into the hatchback of
a car was not violative of the Fourth Amendment since there was no indication that the dog
did not act on instinct).
172
See, e.g., Thomas, 787 F. Supp. at 684 (discussing only the physical placement of a drug
dog inside the vehicle as the factor that would render a sniff unconstitutional); United States
v. Almeida, No. 2:11-cr-127-DBH, 2012 WL 75751, at *10 (D. Me. Jan. 9, 2012) (focusing on the
reason for the drug dogs entry into the vehicle as determinative of the sniffs
constitutionality); State v. Freel, 32 P.3d 1219, 1225 (Kan. Ct. App. 2001) (stating that the
reason for finding an unconstitutional search is that the drug dog was encouraged to enter the
vehicle by the police officer).
173
See Bond, 529 U.S. at 338.
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v. 46 | 519
sniffing expected from a neighborhood dog.174

Moreover, the Bond Court stated that the determination of whether a
Fourth Amendment violation occurs is immune to the subjective intent of
law enforcement.175 The Court further stated that the determinative issue in
Bond was not what the agent subjectively intended to do but rather what
the agent actually did.176 Applying that rationale to drug dogs, it should
not matter that a dogs leap into a vehicle is instinctivethe drug dogs
subjective intent is an unconscious act rather than the objective effect of
his action.177 Physical invasion of the vehicles interior far exceeds the
casual contact one would reasonably expect from a dog. 178 Using the Bond
logic, even though a drug dog may not consciously intend to enter a
vehicle when it physically invades the interior, it does not follow that the
the dogs actions are therefore legally inconsequential or beyond the scope
of constitutional protection.179
2.
Expectation of Privacy and Revelation of Contraband in a

Binary Search
A strict interpretation of a reasonable expectation of privacy in

Justice Harlans concurrence in Katz is one that society deems legitimate,
and purely illegal activity does not fit within that realm of legitimacy.180
This line of analysis concludes that a binary search, which employs an
investigative method that can only reveal evidence of illegal activity and
nothing more, is a constitutional search.181 However, adherence to an
unwavering view of this strict approach has serious flaws. As Justice
Brennan noted in his United States v. Jacobsen dissent, this view of the
binary-search doctrine, whereby a drug dog is the investigative method
that only detects evidence of illegal activity, could allow police to release
trained drug dogs into public areas to roam the streets at random, alerting
the officers to people carrying cocaine.182 One commentator has asked the
174
See id.
Id. at 338 n.2.
176 Id.
177 See id.; see also Whren v. United States, 517 U.S. 806, 813 (1996) (stating that the
subjective intent of the law enforcement officer is irrelevant in determining whether the
officers actions violate the Fourth Amendment).
175
178
Cf. Bond, 529 U.S. at 338 n.2.

Cf. id.
180 See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Simmons,
supra note 22, at 415.
181 David A. Harris, Supermans X-Ray Vision and the Fourth Amendment: The New Gun
Detection Technology, 69 TEMP. L. REV. 1, 38 (1996); Simmons, supra note 22, at 415.
179
182
United States v. Jacobsen, 466 U.S. 109, 138 (1984) (Brennan, J., dissenting).
2012
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541
question: What characteristics does a surveillance procedure need to have

before it can be considered a binary search and therefore fall outside the
restrictions imposed by the Fourth Amendment?183 A canine sniff of a
vehicle in which the canine makes an instinctive leap and breaches the
interior of the vehicle before alerting does not possess the same
characteristics as an exterior sniffa binary searchand therefore is
within reach of, and subject to the limitations of, the Fourth Amendment. 184
There must be a determinative point at which a drug-dog sniff imputes a
higher reasonable expectation of privacy, 185 and in terms of a vehicle, a
threshold allowing access to a vehicles interior is the most logical point at
which this higher standard should be enforced.186
3.
Misplaced Emphasis on Handler Facilitation During the

Sniff
Despite the abundance of case law analyzing the Fourth Amendment

implications of improper handler or law enforcement facilitation as
dispositive, courts do not consider the fact that there is something
inherently different in a drug-dog sniff that physically invades the interior
of the vehicle and one that is limited to the exterior. 187 Case law suggests
that courts are willing to find handler facilitation as the dispositive reason
for transforming a lawful exterior sniff into a Fourth Amendment search
only where the means by which the dog physically invaded the vehicle
were facilitated by handler or law enforcement actions. 188 The lack of legal
basis on the issue of whether handler facilitation exists is an unfortunate
indication of judicial activism to achieve the ends by any logic necessary. 189
In United States v. Lujan, the defendant argued that the drug dogs
handler was on notice that the drug dog had the potential to spontaneously
jump into a car because the dog had, on a prior occasion, climbed into a
car without direction.190 Thus, the handler should have acted to prevent
183
Simmons, supra note 22, at 417.

Cf. id. at 416-17 (confirming that a sniff by a drug-detection dog is not a search is
certain to encourage law enforcement to make even broader use of drug-detection dogs
specifically and binary searches more generally).
184
185 See Hope Walker Hall, Comment, Sniffing Out the Fourth Amendment: United States v.
Place-Dog Sniffs-Ten Years Later, 46 ME. L. REV. 151, 174 (1994).
186
Paul & Trachman, supra note 12, at 13.

See supra note 172 and accompanying text.
188 See infra note 195 and accompanying text.
189 Cf. LaFave, supra note 154, at 1904 (arguing that the courts view of what is required for
a consensual search of a citizens car during a routine traffic stop is not grounded in law, but
rather the distorted views of ordinary people involved in traffic stops).
187
190
398 Fed. Appx 347, 350-51(10th Cir. 2010).
542
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the dog from jumping into the defendants car.191 The court was
unpersuaded and relied on United States v. Stone to say improper officer
facilitationnot handler noticewas the issue.192 Because there was no
evidence of officer facilitation, the spontaneous jump and physical
intrusion did not render the sniff invalid under the Fourth Amendment.193
The validity of an interior sniff should not turn on whether the handler
or law enforcement personnel facilitated the drug dogs breach of the
interior by opening a door or window.194 Instead, there should be an
inquiry into whether the individuals expectation of privacy within the
interior of the vehicle was reasonable and different from his expectation
of privacy of the exterior of his vehicle. 195
Courts across jurisdictions have repeatedly held the drug dogs
physical intrusion into a vehicle that leads to an alertwhere the drug
dogs actions were instinctive and not facilitated by its handler or
other law enforcement personneldoes not render the sniff
unconstitutional.196 However, they have failed to meaningfully
acknowledge that an alert resulting only after physical intrusion is
different than one that results from an exclusively exterior sniff.197 As a
result, courts have failed to draw any valid distinction between interiorsniff cases and exterior-sniff cases, which the Supreme Court has
determined are outside of the Fourth Amendment. 198
4.
Different Reasonable Expectations of Privacy
An individuals vehicle may not enjoy the same overall degree of

privacy as ones home, but a comparison between a home and a vehicles
interior is not incomprehensible.199 Courts use a different analysis to
191
Id. at 351.
Id.
193 Id.
194 But see Pierce II, 622 F.3d 209, 214 (3d Cir. 2010) (discussing only interior-sniff cases with
improper handler facilitation as violating the Fourth Amendment).
195 But see, e.g., United States v. Almeida, No. 2:11-cr-127-DBH, 2012 WL 75751, at *10 (D.
Me. Jan. 9, 2012) (discussing an animals instinctive behavior as the dispositive issue in
interior-sniff cases).
192
196
See cases cited supra note 164.

See Hall, supra note 185, at 174 (noting that a drug dog jumping into a vehicle to sniff
may involve an elevated expectation of privacy in relation to a purely exterior sniff).
198 See United States v. Stone, 866 F.2d 359, 363-64 (10th Cir. 1989) (noting that the drug
dog created a troubling Fourth Amendment issue when it entered the vehicle before
alerting but agreeing with the district court that no Fourth Amendment violation occurred,
without citing to legal authority).
199 See Payton v. New York, 445 U.S. 573, 585 (1980) (The physical entry of the home is the
chief evil against which the wording of the Fourth Amendment is directed. (quoting United
197
2012
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543
determine whether police actions exclusively outside the entrance of the

home have Fourth Amendment implications apart from the standard
implemented if that same officer breach[ed] . . . the entrance to an
individuals home.200 While the degree of difference in the standards for
analysis may not be settled, it is certain that there is a difference between
the two, and the Fourth Amendment has drawn a firm line at the entrance
to the house.201
Although the U.S. Supreme Court has distinguished the privacy
expectations between an automobile and a home, it has still held that
automobiles . . . may be searched without a warrant in circumstances that
would not justify the search without a warrant of a house . . . provided that
there is probable cause to believe that the car contains articles that the officers
are entitled to seize.202 Thus, the Court has acknowledged a difference
between a vehicle and home but still requires probable cause for a
warrantless vehicle search.203 Even in the face of this probable-cause
requirement and despite the fact that an officer who, during a lawful traffic
stop, has no probable cause to search a vehicle for illegal drugs until a drug
dog alerts, courts have failed to adequately analyze a post-vehicle-entry
alert as possibly being the fruit of a poisonous tree. 204 When a drug dog
makes an alert only after physically entering a vehicles interior, acting in
its capacity as a state actor, it has made a warrantless entry into a vehicle
without probable cause.205 However, under the same circumstances, if the
drug dogs handler or another human agent of law enforcement physically
entered the vehicle before the drug dogs alertthe means to probable
causehe would have engaged in an impermissible Fourth Amendment
search.206 Courts nevertheless have taken an approach to police actions
involving drug dogs that is wholly inconsistent with other areas of Fourth
States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972)) (internal quotation marks omitted)).
200 See id. at 589.
201 Id. at 590; accord Kirk v. Louisiana, 536 U.S. 635, 636 (2002) (per curiam).
202 Chambers v. Maroney, 399 U.S. 42, 48 (1970) (emphasis added) (citing Carroll v. United
States, 267 U.S. 132, 153-54 (1925)).
203
Compare Payton, 445 U.S. at 576 (holding that the Fourth Amendment prohibits the
warrantless search of a suspects home in order to make a routine felony arrest), with
Chambers, 399 U.S. at 48 (indicating that police may conduct warrantless searches of
automobiles without violating the Fourth Amendment if they have probable cause).
204 See Pierce II, 622 F.3d 209, 214 (3d Cir. 2010) (discussing only interior-sniff cases
involving handler facilitation as unconstitutional); United States v. Hutchinson, 471 F. Supp.
2d 497, 505-06 (M.D. Pa. 2007) (noting that there is no binding authority on this issue, but
courts have reached a consensus).
205
206
But see Pierce II, 622 F.3d at 214; Hutchinson, 471 F. Supp. 2d at 506.
See Chambers, 399 U.S. at 48-49 (citing Carroll, 267 U.S. at 153-54).
544
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v. 46 | 519
Amendment jurisprudence.207
Though the accepted reasonable expectation of privacy may differ on
the issue of threshold entry, a drug dogs post-intrusion alert on a vehicle,
with the alert being the triggering factor of probable cause to search, is
comparable to a police officer only having probable cause to arrest after
entering a room and finding a single occupant. 208 In Johnson v. United States,
probable cause to arrest hinged on police knowledge gained only after,
and wholly by reason of, their entry into the home.209 Similarly, where a
drug dog instinctively enters a vehicles interior and only alerts thereafter,
probable cause to search hinges on a drug dogs knowledge of the presence
of drugs.210 Probable cause is therefore gained only after, and wholly by
reason of olfactory observations made after [the drug dog] had obtained
[entry] under color of [its] police authority.211 In Johnson, the U.S. Supreme
Court held that an officer must have some valid basis in law for the
intrusion.212
Like the officer in Johnson who had no probable cause before physical
intrusion, an officer-handler, whose drug dog does not alert before
physically entering a vehicle, does not have probable cause to search until
the post-intrusion alert.213 As such, when a drug dogs instinctive
intrusion results in an alert, courts should require that the intrusion have
some valid basis in law distinct from that upon which an exclusively
exterior sniff is validly conducted. 214 Failure to acknowledge this
distinction should, at the very least, warrant scrutiny of law enforcements
investigative authority reaching into otherwise private areas.215
207 Compare, e.g., Pierce II, 622 F.3d at 214 (discussing past cases, which have held searches
to be constitutional where a drug dog entered a vehicle instinctively after a driver voluntarily
opened the entry point used by the dog), and Hutchinson, 471 F. Supp. 2d at 506
(acknowledging that a dogs jumping into the cars interior through the hatchback did not
violate the Fourth Amendment), with Johnson v. United States, 333 U.S. 10, 16 (1948) (holding
that the government properly based its right to arrest on information obtained after entering a
room without probable cause).
208
See Johnson, 333 U.S. at 16.

See id. (holding the validity of the search incident to arrest depended upon the validity
of the arrest itself). It was therefore their observations inside of her quarters, after they had
obtained admission under color of their police authority, on which they made the arrest. Id.
209
210
See id.
211
See id.
Id. at 17.
213 Id. at 16.
214 See Johnson, 333 U.S. at 17. But see generally Illinois v. Caballes, 543 U.S. 405, 407, 409-10
(2005).
212
215
See Paul & Trachman, supra note 12, at 2.
2012
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545
IV. Slippery Slope of the Current Judicial Analysis

A. Jurisprudential Trend and Indiscriminate Use
One danger of treating interior sniffs that result from instinctive
leaps, jumps, or other actions, the same as exterior sniffs is the possibility
that canine drug sniffs [could become almost] entirely exempt from
Fourth Amendment inspection . . . .216 This danger is enhanced by the fact
that there is one significant difference between an officers request to
search and a drug-dog sniffthe passenger would not have the option of
refusing the sniff.217 Though that is on the far end of the spectrum of
cognizable concern, the current jurisprudence nonetheless requires one to
ask: If there are no Fourth Amendment restrictions on canine sniffs . . . ,
what is to prevent their widespread and indiscriminate use?218
B. The Question of True Infallibility
Another way to delineate between exterior and interior sniffs is in the
fact that scent odor from narcotics drifts with the air currents.219 Physical
intrusion into a vehicle permits the dog to gain closer access to interior
components, thereby enhancing the drug dogs already powerful sensory
abilities.220 Such access and enhanced proximity may increase the
probability that a drug dog will alert on a smaller quantity of drugs or even
residue221 where actual, traceable amounts of drugs are in fact not
present.222 A drug dogs higher probability of false alert decreases its
accuracy, and a drug dog with a higher probability of false alert is
generally viewed as less reliable than a drug dog with a lower probability
of false alert.223 With a greater possibility that the canine nose is not
infallible, the reliability of a drug dog-handler team may be called into
question more easily where the alert occurs only after the drug dog has
216 Caballes, 543 U.S. at 423 (Ginsburg, J., dissenting) (citing Bond v. United States, 529 U.S.
334, 338-39 (2000)).
217 Id.; Paul & Trachman, supra note 12, at 42.
218 Simmons, supra note 22, at 417.
219 Mesloh et al., supra note 5, at 175.
220 See id.
221 See United States v. Booker, 186 F.3d 1004, 1006 (8th Cir. 1999) (stating that where the
drug dog alerted three times on suitcases where nothing of relevance was found, it was more
than possible . . . that the suitcases contained drug residue that the defendants did not
purposefully leave behind).
222 See id.; Hinkel & Mahr, supra note 73; Hunt, supra note 46, at 315 (noting that even an
innocent person unknowingly may possess currency contaminated with drugs).
223
See Hinkel & Mahr, supra note 73.
546
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entered into the vehicles interior.224

Drug sniffing dogs are only as good as [their] handlers.225 In fact,
canines do not inherently possess the ability to detect and alert to the
presence of illegal drugs; rather, they must receive training to become
drug dogs.226 Thus, all canine sniffs are based on training and instinct.227
The proper legal analysis must therefore question whether there are cracks
in the foundationthe training process itself.228 Drug-dog training and
certification schools make no mention of training processes that involve
teaching a canine to leap through open doors or windows.229 Therefore, a
drug dogs action during the course of a procedure that is inconsistent with
its trained behavior suggests that neither the training, dog, nor handler is
flawless in the execution of a trained drug-dog sniff.230 Canine fallibility is a
more likely when a drug dog instinctively leaps through an open
threshold, as opposed to a purely exterior sniff, which weakens the canine
infallibility rationale relied upon in Caballes.231 Courts must recognize this
significant difference to properly analyze the interior-sniff issue.232
The notion that the canine nose is infallible is indispensable to the
underlying rationale that a canine sniff can only detect the presence of
illegal contraband. In turn, this justifies the constitutionality of a canine
sniff.233 Hence, a fallible canine sniff could be the first step in a process
that may disclose intimate details without revealing contraband.234 In
224
225
See id.
Id. (quoting Alex Rothacker, a Chicago area dog trainer who works with drug-sniffing
dogs).
226
See id.
See id.; Lit et al., supra note 81, at 388.
228 See Taslitz, supra note 6, at 121.
229 See, e.g., Narcotics Detection, BULLOCKS CANINE SERVICE, http://www.bullocksk9kennels
.com/narcdetect.htm (last visited Mar. 30, 2012) (describing training for vehicle narcoticsdetection searches as including multiple vehicles with at most one hidden compartment on
the interior or exterior but not mentioning entering through windows or doors); Police K9
Drug Dogs, K9 GLOBAL TRAINING ACADEMY WORKING DOGS, http://www.k9gta.com/PoliceK9-Drug-Dogs.html (last visited Mar. 30, 2012) (offering drug-dog search techniques for
vehicles, buildings, open area, aircraft, buses, wind currents, and luggage but not open
windows or doors).
230 See Lit et al., supra note 81, at 388.
231 Cf. Illinois v. Caballes, 543 U.S. 405, 412 (Souter, J., dissenting) (criticizing the Courts
ruling to uphold the validity of drug-dog sniffs).
227
232 See Jessica Na, Comment, A Whiff of Things to Come: The Unreasonableness of Dog Sniffs in
Illinois v. Caballes, 39 LOY. L.A. L. REV. 1471, 1479-80 (2006); cf. Caballes, 543 U.S. at 412 (noting
that once a canines sense of smell is recognized as being imperfect, it is no longer unique
under the Fourth Amendment because it may detect more than contraband).
233
234
See, e.g., Caballes, 543 U.S. at 409 (majority opinion).

Paul & Trachman, supra note 12, at 16 (quoting Caballes, 543 U.S. at 413 (Souter, J.,
2012
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547
distinguishing its holding from Kyllo, the Caballes Court emphasized the
difference between canine sniffs and sense-enhancing technology.235
However, a fallible canine sniff would render any distinction between
these two types of police investigative tools largely insignificant. 236
Communication between a handler and drug dog based on the dogs
infallible ability to accurately identify particular scents is the primary
rationale for courts deeming a drug dogs alert presumptively reliable to
establish probable cause.237 The Sixth Circuit, for example, has stated that
there are no dispositive factors that will establish the validity of a drug
dogs alert, and where there is nothing unusual about the alert and nothing
to undermine the handlers credibility, that handlers testimonywith
nothing moresufficiently supports the reliability not only of the drug dog
but, more significantly, of the positive alert as well. 238 However, the initial
threshold issue of whether unusual circumstances exist that call into
question the reliability of the drug-dog alert must be properly
scrutinized.239 Such situations may arise when the alert at issue was itself
ambiguous, or the alert was the product of abnormal circumstances. 240
Another one of those limited situations occurs when a drug dog sniffs the
exterior of a vehicle, physically enters the vehicle through either an open
window or door, and positively alerts only after his physical entry into the
vehicles interior.241 Most courts find that a drug dogs training and
certification records alone are sufficient to demonstrate reliability and
support a probable-cause determination; however, reliability need not be
shown by the drug dogs track record or accuracy in its fieldwork.242
Likewise, one court has also concluded [i]n the absence of some other
circumstance requiring a more detailed inquiry into [the drug dogs]
reliability, it would not require the government to produce real-world
records of that drug dogs searches or performance.243
dissenting)). Contra Caballes, 543 U.S. at 409-10 (majority opinion).

235 533 U.S. 27, 40 (2000) (holding that surveillance with a device that is not in general
public use constitutes an unreasonable search without a warrant).
236 See supra note 46 and accompanying text.
237 See Caballes, 543 U.S. at 411 (Souter, J. dissenting).
238 United States v. Howard, 621 F.3d 433, 447 (6th Cir. 2010).
239 See id. at 447-48.
240 See id. at 450.
241 See, e.g., Pierce II, 622 F.3d 209, 210 (3d Cir. 2010) (stating that a drug dog went to the
front passenger door, jumped up onto his hind legs, and proceeded to reach his nose into the
vehicle whereupon his behavior suddenly changed).
242
State v. Nguyen, 811 N.E.2d 1180, 1187 (Ohio 2004) (citing a new trend in some federal
courts recognizing that once the state demonstrates the drug dog is trained and certified, it
negates any need to establish the reliability of the challenged drug dog).
243
United States v. Wood, 915 F. Supp. 1126, 1136 (D. Kan. 1996).
548
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v. 46 | 519
V. Training to Instinctively Leap Through Openings

Yet another danger exists with the current interior-sniff jurisprudential
trend: where courts unanimously find any interior sniff that began as a
lawful exterior sniff and did not involve an officer opening the threshold
through which the drug dogs entered the vehicle, drug dogs could
ultimately be trained through the use of handler cues to leap, jump, or stick
their heads through open doors and windows while performing an
exterior-vehicle sniff.244 As long as courts uphold the sniffing theory in
order to avoid a search analysis under the Constitution, logic would dictate
that the drug dogs could well be trained to engage in this instinctive
behavior. This would permit law enforcement to search a vehicles interior
exempt from Fourth Amendment restraints. 245
Since [i]t may be more parsimonious to suggest that dogs respond not
only to scent, but to additional cues issued by handlers as well,246 and
because a drug dog can detect even minute changes, whether biochemical
or otherwise in its handler, there is nothing to prevent drug-dog training to
eventually involve cueing to leap through open doors or windows.247
Since canines can sense the most discreet hand signals or changes in body
language,248 using cueing249 to instruct a drug dog to leap through an open
door or window would likely go undetected by courts given their current
treatment of what constitutes impermissible handler facilitation in a
drug-dog sniff.250 In turn, if the sniff is flawed in some waynamely the
canine has been trained to leap instinctively through open windows and
doorsthe tainted synchronicity between the two interrelated and
interdependent team members makes it irrelevant as to whether the drug
dog or its handler actually physically invaded the vehicle to conduct the
interior sniff.251 In such an instance, the handler has cued the drug dog and
unquestionably facilitated the physical invasion; and the resulting interior
sniff should be analyzed as a Fourth Amendment search. 252
244 See Lit et al., supra note 81, at 392 (suggesting that dogs can respond to nonverbal cues
that do not require formal training).
245
246
247
248
249
250
251
252
See United States v. Stone, 866 F.2d 359, 363-64 (10th Cir. 1989).
See id. at 387-88; Hinkel & Mahr, supra note 73.
See HOROWITZ, supra note 108, at 164-65.
See supra note 111 and accompanying text.
See Stone, 866 F.2d at 363-64.
But see id.
But see id.
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549
CONCLUSION
It is well established that a trained drug dogs exterior sniff of a vehicle
is not within the purview of Fourth Amendment protections, but the U.S.
Supreme Court has yet to settle the law on those sniffs originating as
exterior sniffs and ending with the production of fruits of an interior
search. Lower courts that have decided canine-sniff issues resulting from
instinctive drug-dog leaps or other physical intrusions into vehicles and
subsequent interior sniffs with post-intrusion alerts have glossed over the
fact that there is a distinction in the reasonable expectation of privacy
people can have in the interior and exterior of their vehicles. Those courts
have instead robotically reinforced the theory of the infallible canine
nose. Current jurisprudence holds that as long as a human law
enforcement agent does not physically cross the vehicle threshold, they are
free to use canines to circumvent the Fourth Amendment. In other words,
the drug dog is probable cause with four legs.
Courts thus far have proved unwilling to recognize that there is a
distinction between a drug dog sniffing the exterior of a vehicle and a drug
dog sniffing the interior of a vehicle before alerting. Yet there is no further
point in such instances that would make a more logical boundary of where
a canines actions begin to have Fourth Amendment implications than the
interior-exterior threshold of a vehicle. The dangers of law enforcements
encroachment on constitutional protections increases with every inch drug
dogs are permitted to physically invade individuals vehicles, provided
that physical invasion begins with a lawful exterior sniff.
Though the argument set forth in this Note is not immune to counterargumentsuch as extension of the plain smell doctrine or other
warrantless search exceptions, or a determination that although interior
vehicle sniffs are warrantless searches, they are nevertheless reasonable
the fact remains that interior-vehicle sniffs must, at a bare minimum, be
analyzed as searches within the purview of the Fourth Amendment. The
problem interior sniffs create is similar to Justice Brennans concern in his
Jacobsen dissent: Hence, at some point in the future, if the Court stands by
the theory it has adopted today, search warrants, probable cause, and even
reasonable suspicion may very well become notions of the past.253 For as
long as courts continue with their current line of legal reasoning on this
issue, or lack thereof, there is no end in sight for the potential dismantling
of Fourth Amendment guarantees from the infallible canine nose. As it
currently stands, interior-sniff jurisprudence illuminates the concern that
there may no longer be a slippery slope, but rather a cavernous abyss,
into which the Fourth Amendment falls victim to the power of the
253
United States v. Jacobsen, 466 U.S. 109, 138 (1984) (Brennan, J., dissenting).
550
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infallible canine nose.
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ALFANO FINAL (DO NOT DELETE)

Canines have become a widely accepted method for drug detection

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New England Law Review

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Reining in the Leash on Drug -Dog Sniffs

an exterior vehicle sniff by a canine trained in narcotics detection is sui

See infra Part I.B.2.

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Fourth Amendment Jurisprudential Background and Trained

The Fourth Amendment of the U.S. Constitution guarantees in part:

U.S. CONST. amend. IV, cl. 1.

533 U.S. 27, 29 (2001).

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Reining in the Leash on Drug -Dog Sniffs

Canine Sniffs as Sui Generis

462 U.S. at 707.

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United States v. Jacobsen, 466 U.S. 109, 111 (1984).

Simmons, supra note 22, at 413.

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Reining in the Leash on Drug -Dog Sniffs

sense-enhancers currently reveal more than just illegal activity. 43 The

Other U.S. Courts on Instinctive Canine Actions and

See Illinois v. Caballes, 543 U.S. 405, 409-10 (2005).

Caballes, 543 U.S. at 409.

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hatchback on his own volition and immediately alerted to contraband. 51

Id. at 362 (citation omitted).

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Reining in the Leash on Drug -Dog Sniffs

Interior Sniffs Facilitated by Officers Are

In United States v. Winningham, law enforcement had reasonable

See id. at 213-15.

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search the vehicle.70

Mesloh et al., supra note 5, at 178.

See, e.g., Illinois v. Caballes, 543 U.S. 405, 408-09 (2005).

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Reining in the Leash on Drug -Dog Sniffs

D. Handler Cues and the Clever Hans Effect

Lit et al., supra note 81, at 393.

Id. at 141-42, 240.

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New England Law Review

Lammers, supra note 8, at 852.

866 F.2d 359, 363 (10th Cir. 1989).

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Reining in the Leash on Drug -Dog Sniffs

The courts conclusion in United States v. Hutchinson that the breach of

See infra note 98 and accompanying text.

Lit et al., supra note 81, at 388.

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Dog and Handler as One Inseparable Team

The relationship of a drug dog to its handler in a drug-dog team has

See infra notes 115, 122, and accompanying text.

See infra notes 115, 122, and accompanying text.

HOROWITZ, supra note 108, at 167.

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