View Full Version : Is a Dog Technology?

12-20-2004, 06:34 PM

Just over three weeks ago, the Court heard argument in No. 03-923, Illinois v. Caballes, which asks whether a dog "marijuana sniff" of a car during a routine traffic stop for speeding is a "search" for purposes of the Fourth Amendment. Relying upon the Court's decision in United States v. Place, Illinois and the United States argued in Caballes that dog sniffs are never searches, because the only thing they can detect is contraband. This led some Justices at oral argument to wonder whether that would mean that authorities can have dogs sniff outside homes and apartments in order to detect marijuana inside, or whether there is something constitutionally distinct about a home, as the Court suggested recently in its 5-4 decision in Kyllo, in which it concluded that the use of a heat-sensing device on the outside of a house is a search. See, for example, the transcript of argument (http://www.supremecourtus.gov/oral_arguments/argument_transcripts/03-923.pdf) at pages 4, 15-17 (Souter, J.), 10 (O'Connor, J.); see also id. at 24-25 (O'Connor) (same question as to parked cars). At one point (see page 9), Justice Scalia -- the author of, and decisive vote in, Kyllo -- indicated that Kyllo would have come out differently if the only thing the device could have detected was "a dead body with a knife through the heart."

Today, the Maryland Court of Appeals addressed the hypo that troubled the Court in Caballes, ruling 5-2 that a dog sniff of an apartment is not a search (http://www.courts.state.md.us/opinions/coa/2004/8a04.pdf). (Hat tip: How Appealing.) As the court notes (pages 18-21), this ruling widens a split in the lower courts on what will almost certainly be a cert.-worthy "follow-up" question to Caballes if the Court's decision in that pending case does not resolve it. Of note, the Maryland high court reasoned that Kyllo "has no bearing on dog sniffs" because, inter alia, "a dog is not a technology -- he or she is a dog. . . . . Across America, people consider dogs as members of their family. The same cannot be said of cars, blenders, or thermal imagers." Whether or not this is good modern sociology (I'm a cat-person myself, and I know of several persons who are inordinately fond of their kitchen gadgets), contrast this statement from Justice Stevens in the Caballes argument: "There's nothing magical about the fact that it's an animal rather than a sophisticated device."

Hammock Parties
12-20-2004, 06:40 PM
techˇnolˇoˇgy Audio pronunciation of "technology" ( P ) Pronunciation Key (tk-nl-j)
n. pl. techˇnolˇoˇgies

1. The application of science, especially to industrial or commercial objectives.
2. The scientific method and material used to achieve a commercial or industrial objective.
2. Electronic or digital products and systems considered as a group: a store specializing in office technology.
3. Anthropology. The body of knowledge available to a society that is of use in fashioning implements, practicing manual arts and skills, and extracting or collecting materials.

Hammock Parties
12-20-2004, 06:44 PM
Rain Man and Gaz will both vote yes.

Taco John
12-20-2004, 06:51 PM
I'll vote yes based on definition 3.