DEFINING CIVIL LIBERTIES| LAST OCCURRING A HEAD|^9393You Decide
DRAWING LINES AND THE FOURTH AMENDMENT
The Supreme Court has ruled that police do not need a search
warrant to have drug-sniffi ng dogs search luggage at an airport
or a car that has been stopped for a traffi c violation unrelated to
drugs. Lower courts have also ruled that sniffs are not consid-
ered searches in a hotel hallway, school locker, outside a pas-
senger train’s sleeper compartments, or outside an apartment
door. However, lower courts have been split on whether drug-
sniffi ng dogs may be used outside a home without a warrant,
due, in part, to a Supreme Court precedent giving homes stron-
ger Fourth Amendment protection than cars, lockers, or other
areas. For example, in 2001 the Court ruled that police needed
a warrant to use a thermal imaging device outside a home in an
attempt to detect marijuana growing under heat lamps inside.
Another case provided an opportunity for the Court to sort
out the lower court confl ict by determining which precedent
from its own decisions was most relevant (the thermal imaging
case involving homes or the dog-sniffi ng cases about airports
and cars). The case involved a Houston man, David Smith, who
was arrested when a trained dog smelled methamphetamine
in his garage. Based on the dog’s positive indication, the police
obtained a search warrant and found the meth and other evi-
dence of criminal activity. Smith was sentenced to 37 years in
prison but has appealed the conviction on the grounds that the
evidence against him was illegally obtained. His lawyers argued
to the Supreme Court that the thermal imaging case was the
relevant precedent and that the charges should be thrown out,
saying, “No distinction exists between a thermal imaging device
and drug sniffi ng dog in that they are both sense-enhancing and
permit information regarding the interior of a home to be gath-
ered which could not otherwise be obtained without a physical
intrusion into a constitutionally protected area.” The district
attorney, urging the Court to reject the appeal, said the thermal
imaging case was not relevant because the Court’s ruling in
that case was focused on protecting the original meaning of the
Fourth Amendment from erosion by new technology. He said
that in contrast to thermal imaging devices, “The use of a drug
detection dog does not constitute the use of any technology, let
alone advanced technology.”a The Supreme Court declined to
hear the case. While this means the conviction stands, it does
not imply Court agreement or disagreement with the convic-
tion. Interestingly, in the very same term in which the Court
declined to hear this case, they decided the case noted above
ruling that using a drug-sniffi ng dog during a routine traffi c
stop did not violate the Fourth Amendment.b
At the opposite end of the technological spectrum from
a drug-sniffi ng dog are all the new surveillance technologies
that are available to law enforcement offi cials. Video surveil-
lance in public places, cell phones with tracking chips, collec-
tion of Wi-Fi data, “E-ZPass” highway toll collection systems,
roadside assistance devices, and web traffi c data kept by online
merchants and social networking sites are some of the more
obvious technologies that could be used by law enforcement
offi cials. Others that are becoming more common or will be
used soon include RFIDs (radio frequency identifi cations), which
are the size of a grain of rice and transmit information wire-
lessly through radio waves; facial recognition software and iris
scanners; “smart dust devices”—tiny wireless micromechani-
cal sensors—that can detect light and movement; and drones,
which have primarily been used for military purposes but also
have vast potential for tracking suspects in any context.
In the context of rapidly changing technology, what is the
public’s “reasonable expectation” for privacy? Justice Alito
raised this question in oral arguments in a Supreme Court case
involving a GPS tracking device (we discuss the case later in
the chapter). He said,“Technology is changing people’s expec-
tations of privacy.... Maybe 10 years from now 90 percent of
the population will be using social networking sites and they
will have on average 500 friends and they will have allowed
their friends to monitor their location 24 hours a day, 365 days
a year, through the use of their cell phones. Then—what would
the expectation of privacy be then?”cFederal agents use a drug-sniffi ng dog to inspect a car.Critical Thinking Questions
- If you had to decide the case of the drug-sniffi ng
dog, how would you have ruled? Do you think that
homes should have stronger privacy expectations
than cars? Even when it concerns illegal drugs? - How would you answer Justice Alito’s question
about the expectation of privacy in an era of rapidly
changing technology? When should law enforce-
ment offi cials have to get a warrant to monitor our
behavior?