Dog Days at the Court: Do We Have an Expectation of Privacy in the Smells that Leak from Our Homes?
This question formed an important backdrop to a decision issued by the Minnesota Supreme Court on Thursday in the appeal of Scott Evan Davis. In August of 2004, an officer with the Burnsville Police Department obtained a search warrant for Davis’s apartment, after noting as part of the warrant application that a specially-trained drug-sniffing dog had alerted to the presence of narcotics at the threshold of Davis’s apartment door.
While I know that it is horribly off-message for this blog, which ordinarily leaves the review of criminal law matters to others, but the Court’s dog-sniff cases (like this one and this one) are just too interesting to pass up.
Particularly so, because Minnesota’s recent dog-sniff cases struggle with the provocative questions raised by the 2001 decision of the U.S. Supreme Court in Kyllo v. United States. In Kyllo, the High Court held that when the government uses a “device” that is not in general public use, to explore details of a home that would previously have been unknowable without physical intrusion, this surveillance qualifies as a search under the Fourth Amendment. In Kyllo, police officers used a thermal scanner to measure the heat emanating defendant Kyllo’s home, to infer that he was using high-intensity lamps to grow marijuana inside the house.
With respect to Kyllo, I have always thought that Justice John Paul Stevens and his fellow dissenters had the better analysis; namely that “public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community.”
A provocative brain-teaser that had me whirling over this Memorial Day Weekend, as it earlier divided the Minnesota Supreme Court, is how, if at all, the use of a drug-sniffing dog might be different from the thermal scanner described in Kyllo.
The Court’s complete analysis in Davis, including a lively dissent from Justices Page and Meyer, is accessible here.