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.7 Detection DevicesDetection devices disclose things that are incapable of being detectedby the ordinary senses.This section explores Fourth Amendment restrictionson four widely used police detection devices drug and bomb-sniffing dogs,magnetometers, X-rays, and thermal detectors.Detection devices that detect only the presence of contraband objects that79it is always a crime to possess are not regulated by the Fourth Amendment.The Supreme Court has determined that suspects have no legitimate expecta-tion of privacy in contraband and, therefore, have no Fourth Amendment right80to object to devices that detect only its presence.However, few devices arethis content-discriminating.An X-ray, for example, may reveal the presenceof a gun in a suitcase, but it can also reveal the outlines of numerous innocentobjects.The same is true of magnetometers used to screen for weapons in air-ports and elsewhere.Magnetometers reveal the presence of any object that has78Robert C.Power, Changing Expectations of Privacy and the Fourth Amendment, 16 WIDENERL.J.43 (2006).79United States v.Place, 466 U.S.109, 104 S.Ct.1652, 80 L.Ed.2d 85 (1984); United Statesv.Jacobsen, 466 U.S.109, 104 S.Ct.1652, 80 L.Ed.2d 85 (1984).80See cases supra note 79. § 5.7 LAWS GOVERNING POLICE SURVEILLANCE 289a sufficient metallic content, not just weapons.Use of detection devices thatare capable of disclosing hidden innocent activity results in a search and their81use is regulated by the Fourth Amendment.You are probably wondering whether there are any high-tech devices fine-tuned enough to detect guilty objects without exposing innocent ones.Underthe present state of technology, there are only two devices bomb and drug-sniffing dogs and chemical tests that can perform this task.A.Canine ExaminationsThe Supreme Court regards canine sniffs as sui generis because theydisclose only the presence of narcotics, a contraband item, without providing82 83information about lawful activity.United States v.Place, the first case thatpresented this issue, involved a canine examination of luggage at an airport.The Court could have ruled that use of a drug-detection dog was not a searchbecause the odor emanating from the suspect s luggage had been knowinglyexposed to the public and the dog was simply a sensory enhancement device,similar to a flashlight or binoculars.This would have gotten the job done.However, the Court did not say this.Instead, it came up with what was, at thattime, the rather startling proposition that suspects have no legitimate expecta-tion of privacy in contraband and, consequently, have no right to object to theuse of devices that expose only its presence.84In the same term, the Supreme Court decided United States v.Jacobsen,where it extended the rationale to chemical testing that reveals only the pres-ence of a particular drug.A package was damaged during shipment by acommon carrier.To determine the amount of damage, the carrier opened thepackage and observed four white bags of powder inside.The carrier imme-diately contacted federal agents, who ran chemical tests on the substance,confirming that the powder was cocaine.The defendants were arrested.TheSupreme Court ruled that because the chemical test only reacted to narcotics,there was no search.United States v.Place was recently reaffirmed in a case85involving a traffic stop.In Illinois v.Caballes, the defendant was stoppedfor speeding on an interstate highway.While one officer was writing a ticket,another officer arrived and walked a narcotics detection dog around the defen-dant s car.The dog alerted on the trunk of the car, and based on that alert,81Bourgeois v.Peters, 387 F.3d 1303 (11th Cir.2004) (holding that magnetometer screeningconstitutes a search); United States v.Epperson, 454 F.2d 769 (4th Cir.1972), cert.denied,406 U.S.947, 92 S.Ct.2050, 32 L.Ed.2d 334 (same); United States v.Young, 350 F.3d1302 (11th Cir.2003) (holding that use of an X-ray device that reveals, in picture form,the shape of objects inside a package constitutes a search within the meaning of the FourthAmendment).82See authorities supra note 79.83Supra note 79.84Supra note 79.85543 U.S.405, 125 S.Ct.834, 160 L.Ed.2d 842 (2005). 290 CONSTITUTIONAL LAW § 5.7officers searched the trunk, found marijuana, and arrested the defendant.Thecourt upheld the constitutionality, stating that [a] dog sniff conducted duringa concededly lawful traffic stop that reveals no information other than the loca-tion of a substance that no individual has any right to possess does not violatethe Fourth Amendment. Dog sniffs and chemical tests are the only two situations where the UnitedStates v.Place rationale has been applied.The reason is that, under the currentstate of technology, no other devices exist that react only to the presence ofcontraband.Someday, perhaps, there may be.Life would certainly be mucheasier if police were blessed with infallible detection devices that exposed86criminals, without disturbing the privacy of innocent citizens.When thishappens, the Fourth Amendment will quietly pass into oblivion.As a final note in passing, the fact that no Fourth Amendment justifi-cation is needed to perform a canine examination does not mean that policecan go around snatching objects from suspects and exposing them to a sniff.They must have a lawful right of access to the object or Fourth Amendment87grounds to seize it.Dog sniffs may be performed, without reasonable suspi-88cion, in any location that where the officer is lawfully present on any object89to which an officer has a lawful right of access.Otherwise, police need FourthAmendment grounds to seize the object before they may expose it to a sniff.B.X-Ray and Magnetometer SearchesEveryone who boards an airplane today has to walk through a magne-tometer (metal detector) and put their carry-on luggage on a conveyor beltto pass through an X-ray scanning machine.Similar screening procedureshave become a regular features at entrances to courthouses, jails, military86See generally, Ric Simmons, From Katz to Kyllo: A Blueprint for Adapting the FourthAmendment to Twenty-First Century Technologies, 53 HASTINGS L.J.1303 (2002).87Review § 4.4.88Illinois v.Caballes, supra note 85 (vehicle stopped for traffic violation); United Statesv.Place, supra note 79 (luggage in airport); Commonwealth v.Welch, 420 Mass.646, 651N.E.2d 392 (1995) (lockers in fire department s common room); United States v.Friend,50 F.3d 548 (8th Cir.1995) (car parked on private property outside curtilage); UnitedStates v.Roby, 122 F.3d 1120 (8th Cir.1997) (common corridor of a motel); Fitzgeraldv.State, 384 Md.484, 864 A.2d 1006 (Md.2004) (common hallway of apartment build-ing); United States v.Marlar, 828 F.Supp.415 (N.D.Miss.1993) (outside motel roomdoor); United States v.Lingenfelter, 997 F.2d 632 (9th Cir.1993) (exterior of commer-cial warehouse); State v.Carter.697 N.W.2d 199 (Minn.2005) (outside self-storageunit); United States v.Colyer, 878 F.2d 469 (D.C.Cir.1989) (Amtrak sleeper car); Scottv.State, 927 P.2d 1066 (Okla.Crim.App.1996) (luggage checked with bus company);United States v.Reyes, 349 F.3d 219 (5th Cir.2003) (non-contact canine sniff of person).However, police may not conduct a sniff inside the curtilage of a suspect s home, becausethey have no right to enter in search of evidence without a search warrant.State v.Rabb,920 So.2d 1175 (Fla.App.2006).89United States v.Place, supra note 79; see also § 4.4 of this book. § 5
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