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Circuit Co urt for Ho ward C ounty Case No. 13-K-02-41456

IN THE COURT OF APPEALS OF MARYLAND No. 8 September Term, 2004

MATTHEW THOM AS FITZGERALD v. STATE OF MARYLAND

Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.

Opinio n by Rak er, J. Bell, C.J., and Greene, J., dissent

Filed:

December 10, 2004

This case raises the issue of whether a canine sniff of an apartment door is a search under the Fourth Amendment of the United States Constitution. The United States Supreme Court and this Court have held that canine sniffs are non-searches for Fourth Amendment purposes. As the canine sniff doctrine does not depend upon the sniff's location, w e shall hold that a sniff of an apartment door from a common area is a permissible non-search under the Fourth Amen dment.

I. In February 2002, an anonymous source informed Detective Leeza Grim of the Howard County Po lice Depa rtment Crim inal Investigation Bureau, Vice and Narcotics Division, that Petitioner Fitzgerald and his girlfriend Allison Mancini lived together in an apartment at 3131 Normandy Woods D rive in Ellicott City, Howard County. The source also stated that Fitzgerald and Mancini drove a white pick-up truck and regularly sold a high quality grade marijuana called "Kind Bud." Grim's subsequent investigation confirmed that the couple live d in the build ing and tha t the car wa s registered to Alicia Joy M ancini, apparently Allison Mancini's relative. Grim also learned tha t Fitzgerald h ad a juven ile record of separate 1998 arrests for distribution of marijuana near a school and for three first degree burglaries. Based on these events, Grim met with Officer Larry Brian of the How ard Cou nty Police Department's K-9 unit on March 19, 2002. Brian then visited Fitzgerald and

Mancini's apartment building acc ompanied by A lex, Brian's certified drug detecting dog.

Alex's olfactory acumen previously had precipitated numerous arrests.1 Brian and Alex entered the building through unlocked glass doors leading to a vestibule with a stairwell and mailboxes. Brian led Alex to scan apartment doors A, B, C, and D. Alex "alerted"2 at apartment A, indicating the presence of narcotics. Apartment A was Fitzgerald and

Mancini's apartmen t. Sniffs of th e other three apartmen ts did not resu lt in alerts. Alex repeated the sniffs with the identical outcome. Finally, on March 20, the anonymous source contacted Grim again and asserted that Fitzgerald and M ancini con tinued to sell "Kind Bud" marijuana. The next day, District Court Judge JoAnn Ellinghaus-Jones issued a search and seizure warrant fo r Fitzgerald a nd Ma ncini's apartm ent based o n Grim's a ffidavit. The warrant was executed on April 2, 2002. Grim seized substantial amounts of marijuana and other evidence of marijuana use and distribution. Fitzgerald and Mancini were arrested and charge d with p ossessio n of m arijuana with in tent to di stribute a nd relate d offe nses. In the Circuit Court for Howard County, Fitzgerald moved to suppress the evidence seized pursuant to the search and seizure warrant. Fitzgerald challenged the canine sniff as

Fitzgerald called Officer Brian to testify at the suppression hearing. The examination focused on the dog's reliability. This issue is not before us, as Fitzgerald does not raise it in this appeal. Fitzgerald conceded this point at oral argument. At the suppression hearing, Officer Brian testified about how Alex communicates his detection of contraband: "Okay. What Alex does is he sits there and I present to him, he sits there in that area, and what he does is he'll sit and he looks at me and that is his indication to me that he smells the presence of a narcotic." 2
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a search of his a partme nt with out a w arrant. F urther, h e claimed that without the canine sniff, th e police would have la cked th e requis ite prob able ca use fo r the wa rrant. After hearings on September 18 and October 3, 2002, Judge Lenore Gelfman denied the motion on October 21, 2002. Judge Gelfman held that the apartment hallway was open to the public and that the Supreme Court and this Court have held dog sniffs not to be search es. This case proceeded before the Circuit Court on a plea of not guilty, agreed statement of facts. Th e Circuit Court found petitioner guilty of possession with intent to distribute a controlled dangerous substance and senten ced him to two years incarceration, all suspended, and a $1000 fine, all but $2 50 suspen ded, with two year s super vised p robatio n. The State

entered a nolle prosequi to the other counts. Fitzgerald noted a timely appeal of Judge Gelfman's denial of his Motion to Suppress. In a thorough and well-written opinion authored by Judge Charles Moylan, the Court of Special Appeals affirmed. We granted certiorari on April 8, 2004. 380 Md. 617, 846 A.2d 401 (2004). Fitzgerald presents this Court with three questions, which we list in slightly altered form: I. Does a dog sniff constitute a search under the Fourth Amendment of the United States Constitution or Article 26 of the Maryland Declaration of Rights? II. If so, was the sniff an unlawful search?

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III. If the dog sniff is unlawful and its results excised from Grim's affidavit, would the remaining information establish probable cause to issue the warrant?

II. We review first Fitzgerald's contention that a canine sniff of an apartment's exterior is a search under the Fourth Amendment. Fitzgerald argues first that the United States Supreme Court decisions in United States v. Karo , 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) and Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), created a distinction between canine sniffs of residences and all other canine sniffs. He also argues that Alex's ability to detect diazepam tablets, available by

prescription, as well as prohibited narcotics, expanded the scope of Alex's sniff resulting in it becoming a search. The State responds that Karo and Kyllo are inapplicable to dog sniffs and that the Supreme Court and this Court have held a dog sniff not to be a search. The State argues that this Court should not consider the diazepam issue, because Fitzgerald did not raise it below. Our review of the propriety of the denial of a motion to suppress is confined to the record of the suppression hearing. See State v. Carroll, __ Md. __, 859 A.2d 1138, 1142 (2004); Ferris v. State , 355 Md. 356, 368, 735 A.2d 491, 497 (1999). We review the trial court's legal conclusions de novo for clear error and the factual findings in the light most favorable to the State. See Ferr is, 355 Md. at 368, 735 A.2d at 497.

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A. The United States Supreme Court determined the constitutionality of a warrantless canine sniff in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).3 In Place, an airline passenger raised the suspicions of law enforcement officers before takeoff. The police officers contacted Drug Enforcement Administration agents in the arrival city. As part of their investigation, the agents had a trained narcotic detection dog sniff the passenger's two pieces of luggage. Id. at 698-99, 103 S.Ct. at 2639-40 The Supreme Court held that a canine sniff is not a search under the Fourth Amendment.4 Id. at 707, 103 S.Ct. at 2645. The Court noted the limited nature of a canine sniff: "A `canine sniff' by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not On April 5, 2004, the United States Supreme Court granted certiorari in People v. Caballes, 802 N.E.2d 202 (Ill. 2003), in order to determine whether the Fourth Amendment requires reasonable, suspicion "to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop." Illinois v. Caballes, 124 S.Ct. 1875, 158 L.Ed.2d 466 (2004). The Court ultimately held that the agents' ninety-minute detention of the luggage was an unreasonable seizure. United States v. Place, 462 U.S. 696, 709-10, 103 S.Ct. 2637, 2645-46, 77 L.Ed.2d 110 (1983). 5
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subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods. "In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here -- exposure of respondent's luggage, which was located in a public place, to a trained canine -- did not constitute a `search' within the meaning of the Fourth Amendment." Id. at 707, 103 S.Ct. at 2644-45. From the above language alone, it is possible to view the Court's holding either as narrowly directed at airplane luggage or as a general categorization of canine sniffs as non-searches. Subsequent Supreme Court decisions make clear that the Court has adopted the latter view.5

The vast majority of state courts considering dog sniffs have recognized that a canine sniff is not a Fourth Amendment search. See, e.g., Arizona, State v. Box, 73 P.3d 623, 627-28 (Ariz. Ct. App. 2003); State v. Weinstein , 947 P.2d 880, 884 (Ariz. Ct. App. 1997); Arkansas, Sims v. State , 2004 WL 652418 (Ark. 2004); Miller v. State, 102 S.W.3d 896, 902 (Ark. Ct. App. 2003); Willoughby v. State , 65 S.W.3d 453, 456 (Ark. Ct. App. 2002); Vega v. State , 939 S.W.2d 322, 323 (Ark. Ct. App. 1997); California, People v. Bautista , 8 Cal. Rptr.3d 862, 867 (Cal. Ct. App. 2004); Colorado, People v. Ortega, 34 P.3d 986, 991 (Col. 2001) (en banc); Florida, Bain v. State , 839 So.2d 739, 741 (Fla. Dist. Ct. App. 2003); Cardwell v. State , 482 So.2d 512, 515 (Fla. Dist. Ct. App. 1986); Georgia, Cole v. State , 562 S.E.2d 720, 722 (Ga. Ct. App. 2002); Idaho, State v. Parkinson, 17 P.3d 301, 307 (Idaho Ct. App. 2000); State v. Martinez, 925 P.2d 1125, 1130-31 (Idaho Ct. App. 1996); Illinois, People v. Cox, 739 N.E.2d 1066, 1070 (Ill. App. Ct. 2000); Indiana, Bradshaw v. State , 759 N.E.2d 271, 273 (Ind. Ct. App. 2001); Iowa, State v. Bergmann, 633 N.W.2d 328, 334 (Iowa 2001); Kansas, State v. Barker, 850 P.2d 885, 891-92 (Kan. 1993); Louisiana, State v. Kalie , 699 So.2d 879, 881 (La. 1997); State v. Washington, 687 So.2d 575, 580 (La. Ct. App. 1997); Massachusetts, Commonwealth v. Feyenord , 815 N.E.2d 628, 633 (Mass. App. Ct. 2004), Mississippi, Millsap v. State, (continued...) 6

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In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Supreme Court affirmed the Court's Place dog sniff holding. After concluding that federal agents' seizure of a white powdery substance discovered by private freight carrier employees was not unreasonable, the Court held that a chemical test to determine whether the powder was cocaine was not a search. Id. at 121-23, 104 S.Ct. at 1661-62. The Jacobsen Court asserted that its holding "is dictated by United States v. Place." Id. at 123, 104 S.Ct. at 1662. Indeed, the Jacobsen Court relied on the same reasoning as Place. The Court based its decision on the test's narrow scope of determining whether or not the powder was cocaine; "It could tell him nothing more, not even whether the substance was sugar or talcum powder." Id. at 122, 104 S.Ct. at 1661. Because of its limited scope, the test "does not compromise any legitimate interest in privacy." Id. at 123, 104 S.Ct. at 1661.

(...continued) 767 So.2d 286, 292 (Miss. Ct. App. 2000); Missouri, State v. LaFlamme, 869 S.W.2d 183, 188 n.2 (Mo. Ct. App. 1993); Nevada, Gama v. State , 920 P.2d 1010, 1013 (Nev. 1996); New Mexico, State v. Cleave, 33 P.3d 633, 636 (N.M. 2001); New York, People v. Offen, 585 N.E.2d 370, 371-72 (N.Y. 1991) (mem.); People v. Dunn, 564 N.E.2d 1054, 1056-57 (N.Y. 1990); North Carolina, State v. Fisher, 539 S.E.2d 677, 683 (N.C. Ct. App. 2000); North Dakota, State v. Kesler, 396 N.W.2d 729, 734-35 (N.D. 1986); Ohio, State v. Brassfield , 2004 WL 1068781 (Ohio Ct. App. 2004); Oklahoma, Scott v. State, 927 P.2d 1066, 1068 (Okla. Crim. App. 1996); Oregon, State v. Smith , 963 P.2d 642, 647 (Or. 1998); Pennsylvania, Commonwealth v. Johnston, 530 A.2d 74, 78 (Pa. 1987); Tennessee, State v. England, 19 S.W.3d 762, 766-67 (Tenn. 2000); Texas, Rodriguez v. State , 106 S.W.3d 224, 228-29 (Tex. App. 2003); Porter v. State, 93 S.W.3d 342, 346-47 (Tex. App. 2002); Wisconsin, State v. Miller, 647 N.W.2d 348, 35152 (Wis. Ct. App. 2002); Wyoming, Morgan v. State , 95 P.3d 802, 807-08 (Wyo. 2004); but see State v. Ortiz, 600 N.W.2d 805, 815-17 (Neb. 1999). Of the remaining states considering the issue, most have held based on their state constitutions that a dog sniff is a search requiring reasonable suspicion. See cases listed in infra n.14. 7

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The Jacobsen Court held that there is no legitimate privacy interest in the presence of illegal narcotics: ". . . [M]erely disclosing that the substance is something other than cocaine -- such a result reveals nothing of special interest. Congress has decided . . . to treat the interest in `privately' possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably `private' fact, compromises no legitimate privacy interest." Id. at 123, 104 S.Ct. at 1662. Rejecting Jacobsen's attempt to distinguish Place based on the dog's position outside of the luggage as opposed to the Jacobsen agents' physical invasion of his "effects," the Court stated that ". . . the reason this [Place's sniff] did not intrude upon any legitimate privacy interest was that the governmental conduct could reveal nothing about noncontraband items. That rationale is fully applicable here." Id. at 124, 104 S.Ct. at 1662 n.24. Thus, Place and Jacobsen together establish that government tests, such as a canine sniff, that can reveal only the presence or absence of narcotics and are conducted from a location where the government officials are authorized to be, i.e. a public place, are not searches. A review of Place and Jacobsen indicates that a crucial component of the Supreme Court's holdings is the focus on the scope and nature of the sniff or test, rather than on the object sniffed, in determining whether a legitimate privacy interest exists. This conclusion is supported by City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). While holding unconstitutional a highway checkpoint program designed to

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discover and interdict illegal narcotics, the Supreme Court noted that the program's use of dogs to sniff the outside of automobiles is constitutional. Id. at 40, 121 S.Ct. at 453. The Court wrote, "Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is `much less intrusive than a typical search.'" Id. at 40, 121 S.Ct. at 453 (citations omitted). Similarly, the three dissenting justices wrote, "We have already held, however, that a `sniff test' by a trained narcotics dog is not a `search' within the meaning of the Fourth Amendment because it does not require physical intrusion of the object being sniffed and it does not expose anything other than the contraband items." Id. at 52-53, 121 S.Ct. at 460 (Rehnquist dissenting) (citing Place). The focus of the Court and dissent's application of Place is not the object sniffed, the exterior of the luggage in Place and of the car in Edmond, but rather the narrow yes/no scope of the sniff. The only relevant locational determination is whether the dog was permitted outside the object sniffed. We applied the binding precedent of Place and its progeny in Wilkes v. State, 364 Md. 554, 774 A.2d 420 (2001). We held, based on Place and Jacobsen, that a canine (K-9) scan of a car is not a search under the Fourth Amendment. 6 Id. at 581, 774 A.2d at 436. See

Wilkes v. State, 364 Md. 554, 774 A.2d 420 (2001), focused primarily on whether the police improperly extended a traffic stop, in order to give the K-9 officer and dog (continued...) 9

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also, State v. Wallace, 372 Md. 137, 156, 812 A.2d 291, 302 n.6 (2002) (noting that "a canine sniff, in and of itself, is not a search for purpose of the Fourth Amendment"); Gadson v. State, 341 Md. 1, 8, 668 A.2d 22, 26 n.4 (1995) (noting that a "dog sniff of a vehicle conducted during a lawful detention is not a `search' within the meaning of the Fourth Amendment). After quoting Place, we noted: "We recognize the apparent difference between a K-9 scan conducted on a vehicle during a traffic stop and a K-9 scan conducted on luggage at an airport, however, we see no difference in their relationship to the Fourth Amendment. A K9 scan alone constitutes neither an intrusive search in the traditional sense nor a seizure and thus, there are few Fourth Amendment implications." Wilkes, 364 Md. at 581, 774 A.2d at 436 n.20. Thus, we read Place as applicable to dog sniffs in general, independent of the object searched, because of the sniffs' narrow scope. Again, the location or circumstance of the sniff was relevant only to determine whether the dog and officer's presence there was constitutional. B. Despite the Supreme Court and this Court's precedent, Fitzgerald asserts that dog sniffs of apartment doors are searches. This is a case of first impression in Maryland in the sense that we have never discussed the applicability of dog sniffs to the outside of an apartment. As our interpretation of Place is not object or location dependent, though, this

(...continued) sufficient time to arrive and scan. We held that the police did not extend improperly the stop. Id. at 588, 774 A.2d at 440. 10

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case is indistinguishable from our case law on car sniffs and from the Supreme Court's doctrine articulated in Place, Jacobsen, and Edmond. In addition, Place and its progeny have been applied in dozens of cases to multiple objects or locations besides luggage and automobiles: to hotel or motel rooms, see, e.g., United States v. Roby, 122 F.3d 1120 (8th Cir. 1997); railroad sleeper compartments, see United States v. Colyer, 878 F.2d 469 (D.C. Cir. 1989); storage facilities, see, e.g., United States v. Vasquez, 909 F.2d 235 (7th Cir. 1990) (garage); United States v. Lingenfelter, 997 F.2d 632 (9th Cir. 1993) (warehouse); packages shipped via common carrier, see, e.g., United States v. Daniel, 982 F.2d 146 (5th Cir. 1993); residences (cases discussed in detail infra); and non-contact sniffs of individual persons, see, e.g., United States v. Reyes, 349 F.3d 219 (5th Cir. 2003). There have been very few cases holding dog sniffs to be a search under the Fourth Amendment. These cases concerned individual persons, see, e.g., United States v. Kelly , 302 F.3d 291 (5th Cir. 2002), 7 automobiles, see, e.g., United States v. Winningham, 140 F.3d 1328 (10th Cir. 1998), and residences (all three cases discussed infra). See generally, Brian L. Porto, Annotation, Use

The question of dog sniffs of individuals is not before us today and has never been decided by this Court. Since Place was decided, only two federal circuit courts have addressed this issue. The Fifth Circuit has held that "an up-close canine sniff involving contact with a person's body is a search as defined in the Fourth Amendment," United States v. Kelly , 302 F.3d 291, 293 n.1 (5th Cir. 2002), but that an unintentional sniff of a person by a dog not in close proximity is not a search, United States v. Reyes, 349 F.3d 219, 224 (5th Cir. 2003). The Ninth Circuit has held that a sniff of a person from a close proximity is a search. See B.C. v. Plumas Unified School District, 192 F.3d 1260, 1266 (9th Cir. 1999). Consideration of this issue requires a record, extensive briefing, and oral argument. Hence, we take no position on the issue. 11

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of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of Fourth Amendment, 150 A.L.R. Fed. 399 (2004). Fitzgerald proposes that we differentiate sniffs of the exterior of homes from all other sniffs. He argues that the "application of the Place rationale to an investigative technique that intrudes upon the privacy of the home would be wholly at odds with the principles embodied in the Fourth Amendment." To support his argument, he points to United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) and Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). We will discuss both cases and conclude that they are not relevant to dog sniff doctrine. In Karo, a federal agent learned that Karo and others had ordered 50 gallons of ether from an informant and planned to use the ether to extract cocaine from imported clothing. Pursuant to a court order and the seller's consent, government agents installed a beeper in one can of ether. The agents monitored the beeper through its many travels, including sojourns in private residences. The Court held that monitoring a beeper in a private residence constitutes a Fourth Amendment search. Karo, 468 U.S. at 714, 104 S.Ct. at 3303. Fitzgerald is correct that Karo emphasized the expectation of privacy in private residences; the Court wrote, "At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable." Id. The Court, though, based its holding on the scope of

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information a beeper reveals. Comparing the beeper to the obviously impermissible case of an officer entering a private residence to verify the ether's presence, the Court noted: "For purposes of the [Fourth] Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched. Even if visual surveillance has revealed that the article to which the beeper is attached has entered the house, the later monitoring not only verifies the officers' observations but also establishes that the article remains on the premises." Id. at 715, 104 S.Ct. at 3303. The beeper's broader revelation about the interior of the house is a significant one. In Karo, the agents failed to notice that the ether had been moved from one residence to another. Only through using the beeper did they determine that the ether was no longer in the first house and then that the ether was in a second house. Id. at 708, 104 S.Ct. at 3300. Karo is inapposite to the case sub judice for a number of reasons. First, Karo's rationale does not contradict Place's rationale; the two complement each other. Place held that a dog sniff is unique in that it only can determine the presence or absence of contraband, 462 U.S. at 707, 103 S.Ct. 2644, while Karo held that a beeper's utility is too broad, because it indicates both the arrival of the ether and its continued presence. 468 U.S. at 715, 104 S.Ct. at 3303. Crucial in this respect is Karo's emphasis of the difference between what the government can observe outside the residence and what the beeper tells the government

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from its presence inside the residence. The dog, Alex in our case, occupied the same position as the government agent; he observed from the public space outside the residence. Were Alex to have entered the residence himself without a warrant, he would have conducted an unconstitutional search. Second, the object detected in Karo was a can of ether. The ether itself was not contraband; it was a potential tool for extracting contraband. In Place, the object was contraband itself. A pivotal premise of Place was that the sniff "does not expose noncontraband items." Id. Third, the Karo Court repeatedly categorized a beeper as an "electronic device." See, e.g., 468 U.S. at 715, 104 S.Ct. at 3303 (referring to the "monitoring of an electronic device such as a beeper . . ."). While we recognize that Karo did not make clear that the beeper's status as an electronic device guided the Court's decision, Karo read with Kyllo, infra, formulates a doctrine governing the use of technology to learn the contents of residences. Indeed, the Karo Court did make reference to the "technological advances" the Kyllo Court considered so important; in holding that the transfer to Karo of the can with the beeper was not itself a search, the Karo Court noted, "It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence." Karo, 468 U.S. at 712, 104 S.Ct. at 3302. Fitzgerald next cites Kyllo for his argument that Place and its progeny should not apply to the exterior of residences. In Kyllo, the Supreme Court held that the police's use

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of a thermal imager outside a residence to detect the amount of heat inside constituted a search, even if the purpose was to determine the presence of marijuana inside. 533 U.S. at 40, 121 S.Ct. at 2046. The Court elaborated a "general public use" standard: "We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical `intrusion into a constitutionally protected area' constitutes a search -- at least where (as here) the technology in question is not in general public use." Id. at 34, 121 S.Ct. at 2043 (citation omitted). Fitzgerald argues that this standard includes dog sniffs, which he classifies as "senseenhancing technology" that is "not in general public use." Even a perfunctory reading of Kyllo reveals that its standard does not apply to dog sniffs. Kyllo is an opinion about the need to limit "advancing technology." See, e.g., id. at 33-34, 121 S.Ct. at 2043 (commenting that "It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."); id. at 34, 121 S.Ct. at 2043 (stating that "The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy."). The Kyllo Court sought to draw a line to prevent the police from utilizing continuously advancing technologies to "see" more and more inside the home. For example, the Court asserted, "Reversing that approach [of a non-rigid application of the Fourth Amendment] would leave the homeowner at the mercy of advancing technology -- including imaging technology that could discern all human activity in the home. While the 15

technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development." Id. at 35-36, 121 S.Ct. at 2044. The Court viewed the thermal imager as particularly nefarious, even in its crude form, because of its broad potential uses. The imager's utility was not limited to ascertaining whether contraband was present. Instead, the imager could reveal "intimate" details such as "at what hour each night the lady of the house takes her daily sauna and bath." Id. at 38, 121 S.Ct. at 2045. With this review of Kyllo, it is clear that Kyllo has no bearing on dog sniffs. First, a dog is not technology--he or she is a dog. A dog is known commonly as "man's best friend." Across America, people consider dogs as members of their family. The same cannot be said of cars, blenders, or thermal imagers.8 In criticizing the general public use standard, the Kyllo dissenters argued that "sense-enhancing technology" is too broad. They did not argue that it would include dog sniffs, but rather that it would "embrace potential mechanical substitutes for dogs trained to react when they sniff narcotics." Id. at 47, 121 S.Ct. at 2050. (Stevens dissenting).9 Recognition that Kyllo does not apply to dog sniffs is In American Bar Association, ABA Standards for Criminal Justice: Electronic Surveillance

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