Bartelt’s Dog and the Continuing Vitality of the Supreme Court’s Tacit Distinction between Sense Enhancement and Sense Creation
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. Read More