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91 Or. L. Rev. 1203 (2012-2013)
Defending the Dog

handle is hein.journals/orglr91 and id is 1229 raw text is: JANE BAMBAUER*

Defending the Dog
Introduction            .................................        ..... 1203
I.     American Privacy Instincts................            ...... 1204
II.    The Counterproductive Preference for Human Error.......... 1206
III.   The Counterproductive Preference for Nondetection.......... 1208
IV.    A High Legitimacy Canine Program        ...........     ..... 1210
Conclusion................................                     ....... 1211
INTRODUCTION
Narcotics dogs generate a good deal of controversy, confusion,
and ire. The sniff of a dog, directed by a police officer to detect
drugs inside a car or home, is not a Fourth Amendment searchl-a
sharp reminder that the Supreme Court's interpretation of that word
has parted ways with common usage. On the other hand, if the dog
alerts, indicating it detects drugs, the alert alone is sufficient to
2
establish probable cause and justify a full-blown search.
This result seems patently unfair to many scholars. After all, dogs
are often wrong, alerting where no drugs can be found.4 Thus, the
* Associate Professor of Law, University of Arizona James E. Rogers College of Law;
B.S., Yale College; J.D., Yale Law School.
I Illinois v. Caballes, 543 U.S. 405,409 (2005).
2 Police may search a car immediately after a dog's alert under the motor vehicle
warrant exception. Id.
3 See, e.g., Lewis R. Katz & Aaron P. Golembiewski, Curbing the Dog: Extending the
Protection of the Fourth Amendment to Police Drug Dogs, 85 NEB. L. REV. 735 (2007);
Richard E. Myers II, Detector Dogs and Probable Cause, 14 GEO. MASON L. REV. 1, 22
(2006); Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog
Scent Lineup, 42 HASTINGS L.J. 15 (1990) (criticizing dog sniff tracking as evidence at
trial). But see James B. Johnston, Drugs, Dogs, and the Fourth Amendment: An Analysis of
Justice Stevens' Opinion in Illinois v. Caballes, 24 QUINNIPIAC L. REv. 659 (2006).
4 Worse yet, dogs can be biased, picking up on subtle cues from their handlers. These
problems are discussed fully in Part II.

[1203]

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