b. Kyllo v. United States
Defendant argues that the Supreme Court’s decision in Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), teaches that the heightened expectation of privacy in one’s home makes the warrantless search in this case improper. In Kyllo, the Supreme Court considered whether the use of a thermal imaging device to discover heat emanating from a home–consistent [*24] with the cultivation of marijuana–constituted a “search” under the Fourth Amendment. The Court held that the thermal imaging equipment revealed private details about the interior of the home that would have been undiscoverable without the assistance of specialized technology, and therefore constituted a search of the interior of that home for purposes of the Fourth Amendment for which a warrant was required. See id. at 40. Defendant argues a drug-sniffing dog–like thermal imaging equipment–is a specialized device that reveals private details about the interior of a home. Accordingly, Defendant argues I should extend Kyllo to the circumstances of this case and find the dog sniff outside his apartment to be “presumptively unreasonable without a warrant.” I decline this invitation.
Defendant’s reliance on Kyllo in the context of a dog sniff test is misplaced. Initially, I note that the Supreme Court in Caballes distinguished a dog sniff test from the use of thermal imaging equipment considered in Kyllo:
Critical to [the Kyllo] decision was the fact that the device was capable of detecting lawful activity--in that case, intimate details in a home, such as "at what hour each night the [*25] lady of the house takes her daily sauna and bath." The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
Caballes, supra, 543 U.S. at 409-10 (quoting Kyllo, supra, 533 U.S. at 38).
The Kyllo Court emphasized that requiring a warrant for the use of thermal imaging technology “assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, 533 U.S. at 34-35. Quoting Carroll v. United States, 267 U.S. 132, 149, 45 S. Ct. 280, 69 L. Ed. 543, T.D. 3686 (1925), the Court further noted: “The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted.” Kyllo, 533 U.S. at 40. Thus, if “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without [*26] physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Id.
It cannot seriously be argued that a dog can explore “details of the home” that would “previously have been unknowable” without physical intrusion. As early as 800 B.C., Homer told the story of Argos–a dog raised by Ulysses before setting out for Troy–who recognized Ulysses disguised as a beggar. In 1848, John Lord Campbell recounted the tale of Sir Thomas More, after being appointed Lord Chancellor in October 1529, employing a beggar-woman’s little dog to discover her identity. JOHN LORD CAMPBELL, 1 THE LIVES OF THE LORD CHANCELLORS 548-49 (3d ed. 1848). In 1918, a court in Kentucky noted dogs had been employed as scent-detectors for hundreds of years. See Fitzgerald v. Maryland, 153 Md. App. 601, 837 A.2d 989, 1037 (Md. Ct. App. 2003) (citing Blair v. Kentucky, 181 Ky. 218, 204 S.W. 67, 68 (Ky. Ct. App. 1918)). To the extent a dog can detect a scent, therefore, it does not detect anything that “would have been unknowable” without physical intrusion when the Fourth Amendment was adopted in 1791. Cf. Cusumano, supra, 67 F.3d at 1509 (distinguishing a thermal imaging device from “the less refined tools of [*27] days past”). Moreover, it cannot be doubted that a dog sniff–unlike a thermal imaging device–does not reveal “details of the home” because a dog sniff–unlike a thermal imaging device–does not reveal any details at all, but “informs the police instead merely of a reasonable chance of finding contraband they have yet to put their hands on.” See Caballes, supra, 543 U.S. at 416 (Souter, J., dissenting).
Further–unlike the thermal imaging devices in Kyllo–a dog sniff does not detect “information regarding the interior of the home” that could not otherwise have been obtained without “physical ‘intrusion into a constitutionally protected area.’” Kyllo, 533 U.S. at 34 (quoting Silverman v. United States, 365 U.S. 505, 512, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961)). Simply put, a dog–unlike a thermal imaging device–does not detect anything inside a home, but merely detects the particulate odors that have escaped from a home. In that sense, the odors are no longer “private,” but instead are intermingled with “the public airspace containing the incriminating odor.” See Morales-Zamora, supra, 914 F.2d at 205. No physical intrusion is–or historically has been–required to detect suspicious odors. See, e.g., Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436 (1948) [*28] (noting the smell of opium emanating from a room provides probable cause to believe opium is being smoked inside); Taylor v. United States, 286 U.S. 1, 6, 52 S. Ct. 466, 76 L. Ed. 951 (1932) (noting police officers–as they “approached the garage”–relied on their sense of smell to determine “the odor of whisky coming from within”); Venema, supra, 563 F.2d at 1005 (holding the detection of odors outside the locker involved “no physical trespass of the locker itself”). The fact that the smell at issue here was detected by a dog rather than a human does not change its fundamental non-private nature. Cf. United States v. Bronstein, 521 F.2d 459, 461 (2d Cir. 1975) (noting the constitutional privacy interest in a smell is the same whether the smell is detected by a canine nose or a human nose). Accordingly, I hold that “as long as the canine unit is lawfully present when the sniff occurs, the ‘canine sniff is not a search within the meaning of the Fourth Amendment.’” Meindl, supra, 83 F. Supp. 2d at 1217 (quoting Reed, supra, 141 F.3d at 650).
