Bartelt’s Dog and the Continuing Vitality of the Supreme Court’s Tacit Distinction between Sense Enhancement and Sense Creation
posted by Albert Wong
Last Term, in an amicus brief in United States v. Jones, 565 U.S. __, several colleagues and I highlighted the Supreme Court’s long, albeit not always clearly stated, history of distinguishing between sense-enhancing and sense-creating technologies for Fourth Amendment purposes. As a practical matter, the Court has consistently subjected technologies in the latter category to closer scrutiny than technologies that merely bolster natural human senses. Thus, the use of searchlights, field glasses, and (to some extent) beepers and airplane-mounted cameras was not found to implicate the Fourth Amendment. As the Court explained, “[n]othing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology” may afford. 460 U.S. at 282 (emphasis added). In contrast, the Court has held that technologies that create a new capacity altogether, including movie projectors, wiretaps, ultrasound devices, radar flashlights, directional microphones, thermal imagers, and (as of Jones) GPS tracking devices, do trigger the Fourth Amendment. To hold otherwise, as the Court has stated, would “shrink the realm of guaranteed privacy,” leaving citizens “at the mercy of advancing technology.” 533 U.S. at 34-36.
In fact, of the landmark cases involving technology and the Fourth Amendment during the past 85 years (from United States v. Lee, 274 U.S. 559, in 1927 to Jones in 2012), only in one instance did the Supreme Court appear to deviate from this distinction between sense enhancement and sense creation. In that case, United States v. Place, 462 U.S. 696, and its successors, City of Indianapolis v. Edmond, 531 U.S. 32, and Illinois v. Caballes, 543 U.S. 405, the Court held that the use of trained narcotics-detection dogs (more apparently similar to using a new capacity than merely enhancing a natural human sense) did not implicate the Fourth Amendment. In our amicus brief in Jones, we rationalized Place, Edmond, and Caballes by arguing that dogs were unique, being natural biological creatures that had long been used by the police, even in the time of the Framers. Further, we argued, a canine sniff, unlike the use of, say, a wiretap or a thermal imager, “discloses only the presence or absence of narcotics, a contraband item.” 462 U.S. at 707 (emphasis added). Still, the apparent ‘dog exception’ was rankling.
The Supreme Court’s recent opinion in Florida v. Jardines, No. 11-564, clarifies those previous holdings by effectively limiting them to their respective contexts (“canine inspection of luggage in an airport” in Place and “canine inspection of an automobile during a lawful traffic stop” in Caballes). See slip op. at 8 (emphases added). Consistent with the notion that the use of trained narcotics-detection dogs is more akin to creating a new capacity than augmenting a human sense, the Court in Jardines declined to find Place, Edmond, or Caballes dispositive, instead analogizing the use of such dogs to the use of the (sense-creating) GPS tracking device considered in Jones. Id. at 8-9. As Justice Kagan, with Justices Ginsburg and Sotomayor joining, further explains, a trained drug-detection dog is “a super-sensitive instrument” comparable to the thermal-imaging device considered in Kyllo v. United States, 533 U.S. 27. See Kagan’s concurrence, slip op. at 3-5.
As the Court states, the fact that “forensic dogs have been commonly used by police for centuries” is “irrelevant.” Slip op. at 9. And although dogs are “animal, not mineral,” “that is of no significance” to the Fourth Amendment analysis; “that the device is just a dog cannot change the equation.” Kagan concurrence at 1-2, 4. “Detective Bartelt’s dog was not your neighbor’s pet, come to your porch on a leisurely stroll,” Kagan continues. Id. at 2. Rather, “drug-detection dogs are highly trained tools … [t]hey are to the poodle down the street as high-powered binoculars are to a piece of plain glass.” Id. at 2 (emphasis added). Finally, in response to the dissent’s suggestion that since a “human sniff is not a search,” the use of a trained drug dog might be better viewed as a mere enhancement of the natural human sense of smell, Kagan reminds us that the Court already addressed that very same line of reasoning in Kyllo (where it rejected as “quite irrelevant” the suggestion that thermal imagers might be viewed as an enhancement of the natural human ability to “perceive, without technology, the heat of the home”). Id. at 4-5 n.2 (internal citation omitted).
In short, three decades after dog sniffs were first considered by the Supreme Court, Bartelt’s dog has finally managed to put Place in its proper place and bury the sole apparent exception to the Court’s consistent distinction between sense enhancement and sense creation.
The author would like to thank Christina Mulligan for insightful suggestions which have greatly improved this post.