In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often results in a dismissal of the case. The courts do not reach this exclusionary quandary, however, if investigatory techniques used to discover the drugs are not covered by the Fourth Amendment. If the court holds that a given technique is not a search, no Fourth Amendment inquiry ensues. This is exactly what is happening to some investigatory techniques used in the “drug war.” Canine sniffs, aerial searches, and drug field tests have all been upheld on the ground that these techniques are not searches within the purview of the Fourth Amendment. Withdrawing judicial scrutiny from these techniques results in a growing sphere of government activity that is unreviewable. When government activity is unreviewable, the law enforcement process is open to abusive use of otherwise reasonable investigatory techniques. This Comment focuses exclusively on canine sniffs and argues that sniffs should be considered searches to be analyzed properly under the Fourth Amendment.
Hope W. Hall,
Sniffing Out the Fourth Amendment: United States v. Place-Dog Sniffs-Ten Years Later,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol46/iss1/8