Ken... take a deep breath and exhale slowly. No one ever suggested that the dogs are infallible... they're just a variation of the officer smelling alcohol on a traffic stop or the odor of marijuana coming from a vehicle. But the dog can smell more than we can. It's as simple as that. Just as with the officer who smells booze or marijuana, yes, it can turn out to be faulty sensory information, but most of the time it's accurate. You know as a defense attorney that the reason you're challenging K9 sniffs in your cases is because in fact the dog was accurate IN THIS CASE.
As would be true in every single constitutional issue in every case I am defending.However, the point is that the reasoning for allowing non-searches by dogs is the assumption of infallibility. The Supreme Court allows this kind of "investigative tool" under an assumption that it will not reveal legal items (at least not without also revealing an illegal item). This is demonstrably untrue.As well, no matter how many times the court says this is not a search it is always a weak argument that smacks of sophistry. The dog, accurate or not, reveals information which a human would never find without engaging in what would clearly be an unconstitutional search. Without the dog law enforcement would have to open the bag, enter the residence, or search the car without a legitimate reason in order to find the illicit items.
I find it incredible that you can say with a straight face that a dog who is sniffing the invisible odors emenating from a place is conducting a search WITHIN that place. It's not logical. It's no more a search than the officer detecting the odor of alcohol emanating from a stopped vehicle. The dog's nose is just keener.By the way, that's why Kyllo is so wrong.
Okay, now you're just baiting me.You know the emanations rationalization is badly flawed. Carried to its end it invalidates the 4th Amendment in its entirety. All things emanate smells, temperatures, dander, etc. Use of tools which use trace amounts of these things leaking out of whatever house or container(traces which would never be plainly obvious to any person) can expose what is inside any house, car, suitcase, pocket, or anything else. Short of building an enviromentally sealed residence with a decon shower and airlock separating the inside from the outside world and a coolant system built into the walls to stop thermal readings and walking around outside in a sealed plastic suit under this theory you have absolutely no rights against the government knowing everything about you and your life.Since I doubt many people could afford that kind investment and it's obviously way outside the "reasonable expectation of privacy", it is pretty clear that the emanations theory should die the death to which Kyllo condemned it.
It is still counterintuitive, to say the least, to argue that one has a reasonable expectation that your drugs' odors won't be sniffed by someone (human or canine). You clearly have an expectation about someone opening your bag. But the odors you've released into the atmosphere? Likewise, do you really reasonably expect that the heat emenating from your house, which is no longer IN your house, is subject to privacy? Looked at from another angle, in either case, do you really have standing to complain about emanations that are no longer in your area of control (your bag, your house) but have been released into the "public domain?" It's a stretching of common sense to the breaking point to suggest that you retain a privacy interest in odors or heat or other "emanations" from someplace in which you DO have a privacy interest. In my humble opinion, it is not an "unreasonable search" if the police are where they have a lawful right to be, and use whatever means they have (their own sense of smell, a K9, a passive heat detector, binoculars) to PASSIVELY detect whatever it is you allow to escape those areas in which you have a privacy interest.
You don't have a privacy interest in the trace odors or radiated heat per se. The reasonable expectation of privacy is in the information which is revealed by active use by police of tools meant to reveal that which is not plainly apparent.It is reasonable to expect that when you are in your bedroom at 11:00 p.m. with the curtains drawn that no one will know what you are doing. There are devices which, actively aimed at your bedroom by law enforcement can pick up every sound as it comes through the walls or windows even though the human ear would never hear them. Thermal imaging can pretty much provide a picture of any activity in that room as heat leaks out of the building. Of course, the emanation argument for the first of these was rejected in Katz (in 1967) and the second was rejected in Kyllo. Sadly, the Supreme Court doesn't seem capable of being consistent when it comes to dogs.
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