The Fourth Amendment affords United States citizens the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Throughout the last two centuries, the Supreme Court has developed extensive case law that has created a somewhat formulaic approach to determining whether one’s Fourth Amendment rights have been violated—namely, the “reasonable expectation of privacy” test. The Court has applied this test to afford the home, vehicle, airport, and the pedestrian all varying levels of privacy rights, and has upheld most of these respective levels of privacy in the context of the police canine sniff. The Supreme Court has failed, however, to craft case law that protects a pedestrian’s expectation of privacy when faced with a police dog. Police canines are trained to detect particular illegal substances and to alert their human handlers to contraband. These alerts, in turn, create the probable cause that a human officer needs before she may legally conduct a search. However, these alerts are often inaccurate, partially due to human suggestions to the dogs (“handler cues”) and poor training methods utilized by trainers throughout the country. Inaccurate dog alerts, in turn, permit human officers to conduct full searches without probable cause. Notably, the Supreme Court has overlooked and ignored these pressing issues, and has permitted dog sniffs to occur in various settings, without finding that they violate the Fourth Amendment. In most situations however, the Court has implemented safeguards which assure that an individual’s reasonable expectation of privacy is not violated by a sniff and a potentially inaccurate alert. Because the Court has afforded the pedestrian no such safeguards or protections, he is left wholly vulnerable to dogs approaching him and alerting inaccurately, either by accident or as a result of their handlers’ suggestions. This note suggests four steps that the government must take to maintain the privacy protections that pedestrians deserve. First, it must acknowledge that a pedestrian is entitled to a heightened reasonable expectation of privacy. Second, it must implement a temporary presumption against street sniffs that are not supported by human reasonable suspicion, until it can assure that dog alerts are accurate. Third, it must standardize training requirements for all handler-canine pairs, which will target the problems that cause false alerts. Fourth, it must implement a threshold accuracy requirement for all handler-canine pairs. This four-step solution will guarantee that pedestrians’ Fourth Amendment rights are being protected against the potential dangers of the canine sniff.
Jacey L. Gottlieb,
Who Let the Dogs Out—and While We’re at It, Who Said They Could Sniff Me?: How the Unregulated Street Sniff Threatens Pedestrians’ Privacy Rights,
82 Brook. L. Rev.
Available at: http://brooklynworks.brooklaw.edu/blr/vol82/iss3/9