The first case might have been a dissent by Justice Brennan involving a case not taken. A thirteen-year-old girl sued in a case arising from drug-sniffing dogs taken to a junior high school.
A later SCOTUS case noted that specially treated drug-sniffing dogs began to be a thing in the 1970s The incident took place in 1979 and included the dog sniffing the girl's crotch. The dog "alerted," resulting in a body search at the nurse's office.
Justice Brennan flagged here how drug-sniffing dogs can be a specific privacy concern, even more than something like a metal detector. Drug-sniffing dogs are large German Shepherd-type dogs. Some people also (this arose in GITMO, involving cultural taboos) might have a specific fear of dogs.
The Supreme Court in U.S. v. Place, involving luggage at an airport, reached out to decide that drug-sniffing dogs are particularly benign for Fourth Amendment purposes. They only determine if there is contraband, which people do not have a reasonable expectation of privacy to avoid.
The challenger specifically did not challenge the dog sniff. He won on other grounds. Multiple justices, including Blackmun (a moderate on Fourth Amendment issues), flagged that the Court should not have decided the issue without careful briefing.
(The search of luggage at airports is also a special circumstance though the result of the case shows that even then there are limits.)
The "no reasonable expectation of privacy" theme arose again in U.S. v. Jacobson. The case is far from a typical situation. A private courier handled a package and it broke open to expose powder that clearly appeared to be drugs. It was sealed and given to the government. They then reopened it and did a field test on a small portion of the powder.
A challenge failed. Justice White concurred while also arguing the majority's reasoning went too far. Justice Brennan (and Marshall) dissented. However, even if they granted the intrusion was minimal given the facts. We are talking about a minor situation here.
Their dissent made the important point that just because a search "only" determined contraband, it might still be unreasonable. A search is being performed. Your "effects" (in this case) are being interfered with in a way relevant to Fourth Amendment purposes. Your right to privacy, your legitimate expectation of privacy, does not go out the window because contraband is involved.
The details will matter. A field test to test a bit of powder that was already exposed is getting close to a "pure" law school-type hypothetical. The luggage in the earlier case was seized for an extended period. Dogs sniffing children is next-level stuff.
Illinois v. Cabelles involved drug-sniffing dogs used during a traffic stop. The two cases were cited to uphold the use of the dogs. The use of a field test for powder is not quite the same as the use of dogs. A dog sniffing luggage at the airport is also different. Justice Ginsburg's dissent emphasized the point.
Justice Souter also dissented, noting that dogs are not infallible. He would have logically applied other cases involving the usage of general crime investigatory techniques during traffic stops. As he noted:
They are conducted to obtain information about the contents of private spaces beyond anything that human senses could perceive, even when conventionally enhanced. The information is not provided by independent third parties beyond the reach of constitutional limitations, but gathered by the government’s own officers in order to justify searches of the traditional sort, which may or may not reveal evidence of crime but will disclose anything meant to be kept private in the area searched. Thus in practice the government’s use of a trained narcotics dog functions as a limited search to reveal undisclosed facts about private enclosures, to be used to justify a further and complete search of the enclosed area.
Florida v. Jardines finally applied neutral principles to protect a person's privacy. The difference was that a dog was brought onto the "curtilage" (protected area) around a house. A house has special Fourth Amendment protection. Nonetheless, a person and the closed containers in a car (effects) do as well.
Florida v. Harris is a reasonable opinion that puts forth a totality of the circumstances test to determine if a dog sniff was reasonable. Someone in the blog argued the opinion left open the possibility of the usage of unqualified dogs. I think that is overblown.
The opinion held the dog's skills can be challenged. Also, as discussed here [the source of the photo], we should be careful about unreliable dogs. That, however, goes to the specific reasonableness of any information used in a search. The constitutional test more likely than not will have many false positives.
Rodriguez v. U.S. set limits on the use of dogs. The Court held the traffic stop had ended, so the search and seizure was illegitimate. The dog sniff is granted as something separate from a normal traffic stop (license, registration, record check).
But, now, it is clearly allowed as long as it is done within the time when that other stuff is done. The police, however, cannot extend the stop past the normal traffic-related mission to also do a dog sniff.
I would have not established a precedent allowing the dog sniff as yet another add-on. Dog sniffs should be treated as a "search." Multiple cases show the potential for violation of privacy. They are not painless ways to find contraband.
The "reasonableness" test of the Fourth Amendment can allow for some balancing test. The use of bomb-sniffing dogs, for instance, is not the same thing. Likewise, time, place, and manner rules are possible in a general sense. Drug sniffs in airports v. outside your home and yes during a traffic stop.
A few justices were concerned about the widespread of using dogs. For instance, walking a drug-sniffing dog around the neighborhood as a roving (Rover?) search and seizure device. An alert would be a way to get a search warrant.
Florida v. Jardines shows that the usage of a dog can itself be problematic. It is worse when a search and seizure exposes non-contraband such as when police enter a home. But, the sanctity of your person, home, papers, and effects is generally protected.
The usage of specially trained animals and technology are helpful tools in crime control. They also have value for public safety in non-criminal contexts.
Nonetheless, they are not magical things that lack privacy violation effects. At least, to use the old test, that is a legitimate expectation to have.
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