Is a dog sniff at the front door a search?

[Saint_Cad]

@Richard_Parker

A police officer doesn’t execute a search merely by looking for criminal activity. If this were so, there’s not much they would be able to do without a warrant. Instead, a search is when they violate your privacy when looking for criminal activity. Whether a dog sniff violates your privacy as it has been defined under the Fourth Amendment is the question posed. Simply assuming it does begs the question.

Since we are using logic here of Begging the Question Fallacy = Circular Logic, I would like to point out the syllogism I am using.

A = Dog is there to find drugs in the house
B = Dog is there for another purpose (this could be also written as ~A)

I claim:
A or B
~B
Therefore A

Another way would be the tautology ~(~A) = A

No one has yet stated any reason why a drug dog is there at your door other than to sniff for drugs so as far as I’m concerned my syllogism hold i.e. you have not invalidated any of my premises. So now that we’ve shown that the dog has no other purpose than to detect drugs in the house not visible from outside, how is this any different than that whole thermal camera case? That is why I claim it is a search is because if the dog were detecting infra-red radiation instead of smells then SCOTUS has already decided it’s a search.

[Richard_Parker]

Your logic is flawless, but doesn’t get us anywhere except back to the OP’s question.

@Saint_Cad

So now that we’ve shown that the dog has no other purpose than to detect drugs in the house not visible from outside, how is this any different than that whole thermal camera case? That is why I claim it is a search is because if the dog were detecting infra-red radiation instead of smells then SCOTUS has already decided it’s a search.

Because, as explained up-thread and indeed as explained by the Supreme Court itself, unlike the thermal-imaging case which allows the officers to see all manner of private and legal activities, a dog sniff doesn’t reveal any of that.

[Cheesesteak]

@Richard_Parker

It’s not the fact of the contraband that makes this not a search. It’s the fact that *only *contraband can be discovered by the search.

There is also the fact that this search is being conducted from my front porch. Does an officer have the right to bring his “drug only” search devices onto my property, and conduct his operation from my porch, without my approval?

[Boyo_Jim]

Let me repeat a question from before that puts aside the question of the dog being on private property. Has it yet been legally determined whether drug dog sniffing something at an airport constititutes a search, or merely evidence to justify a search?

[simster]

@Richard_Parker

It is of course a familiar premise that the officer cannot search a private space without complying with the Fourth Amendment’s requirements even when there is in fact illegal contraband there.

But that’s a red herring as applied here. It’s not the fact of the contraband that makes this not a search. It’s the fact that *only *contraband can be discovered by the search. By dint of dog-smelling, the officer doesn’t see your porn stash or your anti-government posters, or your secret religious items. He only “sees” your marijuana stash. The Supreme Court has said that makes a huge difference to whether it violates your privacy.

You and I might disagree with the Court, but simply asserting it to be false doesn’t make for a very interesting discussion. The question is, why do you think that premise is false?

I think that the simple ‘fact’ that the tool in question is only a ‘search’ tool is what makes the premise false - similar to opening a safe (where no warrant exists) to ‘see’ if something illegal ‘might’ be inside.

I see it as a (likely overly) simple bit test -

If you have probable cause to believe contraband exists inside someones premises - get a warrant and use every tool you have available to find it.

If a search tool alerts to presence of contraband (outside of a warrant) that can be used as probable cause to obtain said warrant to proceed further.

Taking a specialized dog to a specific and usually considered private location constitutes a search and should fall under the protections of the 4th. Since the Dog’s senses are far greater than that of a humans, this means that the border between where a human officer can generally go (to the front door) will necessarily be different than where the dog would be allowed to go.

I also see this as another example of the police force looking for ways around the checks/balances that getting a warrant implies - which is enough of a slippery slope that we should always fight against it.

[simster]

@Boyo_Jim

Let me repeat a question from before that puts aside the question of the dog being on private property. Has it yet been legally determined whether drug dog sniffing something at an airport constititutes a search, or merely evidence to justify a search?

Airport is a public accomidation - and you agree that your property may be searched at anytime in the confines thereof - the dog alert justifies further action.

[Richard_Parker]

@Cheesesteak

There is also the fact that this search is being conducted from my front porch. Does an officer have the right to bring his “drug only” search devices onto my property, and conduct his operation from my porch, without my approval?

Yes. Indeed, he has the right to perform his own sniff test on your doorstep, in which he might smell even private odors–a broader invasion than the dog sniff.

What I think is at least arguable under current law, though there is no precedent to support it yet, is whether officers can do so systematically as a dragnet.

@Boyo_Jim

Let me repeat a question from before that puts aside the question of the dog being on private property. Has it yet been legally determined whether drug dog sniffing something at an airport constititutes a search, or merely evidence to justify a search?

Yes, it has been held not to constitute a search, and most courts have found it to be sufficient for PC (though SCOTUS hasn’t weighed in on that one).

[Richard_Parker]

@simster

Taking a specialized dog to a specific and usually considered private location constitutes a search and should fall under the protections of the 4th. Since the Dog’s senses are far greater than that of a humans, this means that the border between where a human officer can generally go (to the front door) will necessarily be different than where the dog would be allowed to go.

But, again, the question you need to address is whether it violates your privacy to have a dog smell your business but only report when the dog thinks it smells contraband. If you think that’s the case, why?

[Cheesesteak]

@Richard_Parker

Yes. Indeed, he has the right to perform his own sniff test on your doorstep, in which he might smell even private odors–a broader invasion than the dog sniff.

What I think is at least arguable under current law, though there is no precedent to support it yet, is whether officers can do so systematically as a dragnet.

I submit fully that he should be allowed to bring his nose to my front porch and breathe through it as much as he wants.

This isn’t his own nose, it’s a device that does what his own nose can’t. Can he set up a search device on my property and use it to search inside my home, without my consent?

[Richard_Parker]

Or, to put it another way, suppose the police had a murderer-detector. They wave it at your front door and it tells them if a murderer is inside, and nothing else. Under what circumstances should they be permitted to use this device?

Do they need a warrant to wave it at your door? Why? Does your answer depend on it being improper for an officer to come to your door to ask questions even without the murderer-detector (and therefore require a complete reworking of current law)?

The only difference between a murderer-detector and a drug dog is the severity of the crime, and the potential reliability of the sniff, neither of which is relevant to whether it is a search.

[Grumman]

@Richard_Parker

This is just an assertion. Do you have an argument?

It’s not simply an assertion, it is a legal ruling by the Supreme Court:

@http://abcnews.go.com/US/story?id=93127

The Supreme Court today, in Kyllo vs. U.S., ruled that authorities scanning a home with an infrared camera without a warrant constituted an unreasonable search barred by the Fourth Amendment.

It did so, the court said, because the device is not in general use by the public, so Kyllo had an expectation of privacy, and because the imaging provided by the camera revealed details about Kyllo’s home “that would previously have been unknowable without physical intrusion.”

The same reasoning should apply here.

[Richard_Parker]

@Grumman

It’s not simply an assertion, it is a legal ruling by the Supreme Court:
The same reasoning should apply here.

Except the Supreme Court has already said it doesn’t apply here. Justice Stevens wrote for the *Caballes *majority:

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 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.

[simster]

@Richard_Parker

But, again, the question you need to address is whether it violates your privacy to have a dog smell your business but only report when the dog thinks it smells contraband. If you think that’s the case, why?

Is ‘privacy’ the gating factor here? If so - the officer’s approach on my doorstep - again without probable cause at this point - with a dog - with the intent to ‘search’ my premises is the privacy issue - not whether or not the dog can ‘witness’ anything other than the contraband.

Its the ‘warrant-less nature’ of the search that I object to - not the ‘what the dog can witness’ aspect of it.

[simster]

@Richard_Parker

Except the Supreme Court has already said it doesn’t apply here. Justice Stevens wrote for the *Caballes *majority:

A car on a public road - already stopped for something else - in which case teh officer ‘detected’ PC to call for a dog to be brought to the scene - is a far different thing than taking a dog to a private address without any information ahead of time.

[Richard_Parker]

@simster

Is ‘privacy’ the gating factor here? If so - the officer’s approach on my doorstep - again without probable cause at this point - with a dog - with the intent to ‘search’ my premises is the privacy issue - not whether or not the dog can ‘witness’ anything other than the contraband.

Its the ‘warrant-less nature’ of the search that I object to - not the ‘what the dog can witness’ aspect of it.

And that’s a perfectly sensible position to hold. But it conflicts with the current well-established Fourth Amendment framework which holds that an officer merely being on your doorstep with an intent to smell inside your house for marijuana does not violate the Fourth Amendment. If you concede that it doesn’t matter “what the dog can witness” above and beyond the officer’s senses, then you concede the whole ballgame in terms of existing law.

[Czarcasm]

@Cheesesteak

Does an officer have the right to bring his “drug only” search devices onto my property, and conduct his operation from my porch, without my approval?

@Richard_Parker

Yes. Indeed, he has the right to perform his own sniff test on your doorstep, in which he might smell even private odors–a broader invasion than the dog sniff.

Q. Does the officer have the right to use extra equipment to search for drugs on my property?
A. Yes, he has the right to use his own senses to detect drugs on your property.

Does Not Compute.

[Grumman]

@Richard_Parker

Except the Supreme Court has already said it doesn’t apply here. Justice Stevens wrote for the *Caballes *majority:

Then Stevens’ argument hinges on a premise which is factually untrue: that a sniffer dog will detect nothing except illegal drugs.

[Czarcasm]

@Richard_Parker

And that’s a perfectly sensible position to hold. But it conflicts with the current well-established Fourth Amendment framework which holds that an officer merely being on your doorstep with an intent to smell inside your house for marijuana does not violate the Fourth Amendment. If you concede that it doesn’t matter “what the dog can witness” above and beyond the officer’s senses, then you concede the whole ballgame in terms of existing law.

A dog is not a nose.

[Bricker]

@simster

Is ‘privacy’ the gating factor here? If so - the officer’s approach on my doorstep - again without probable cause at this point - with a dog - with the intent to ‘search’ my premises is the privacy issue - not whether or not the dog can ‘witness’ anything other than the contraband.

Its the ‘warrant-less nature’ of the search that I object to - not the ‘what the dog can witness’ aspect of it.

You understand, though, that the officer could walk up to your door without a dog, but with the intent to see if any contraband was visible in your living room when you open the door… right?

[Richard_Parker]

So your position is that the presence of equipment that reveals *less *private information than the officer’s nose, but more accurately detects contraband, transforms it into a search? Why is that so, Czarcasm?