Replies

"_If_ the Court was right that the dog sniff could reveal only the presence or absence of"

The Fourth doesn't protect things - it protects places. It doesn't matter if he's got a kilo of coke or a box of matches in the trunk; the trunk is all we need to hear. Look at it this way - assume that the only item in the trunk was pot. Assume further that the first cop on the scene (with no dog) just decided for the hell of it to make the guy pop the trunk without consent or probable cause. What would happen and why?

The Fourth protects places regardless of the contents of said places. Unless it is apparent to a police officer in the normal course of events that there is direct evidence of a criminal act in a certain place (barrel of a gun sticking out from under the driver's seat), the place cannot be searched. The cop can have every warning bell in his brain sounding red alert, but if he doesn't have probable cause, he can't search. The cop can have 30 years of experience telling him this guy's definitely got some pot under the seat and he still can't search without probable cause. The place is protected even if the contents of said place are not.

"the dog sniff could reveal only the presence or absence of contraband, then the only information at issue was unprotectible in the first place. And if so, that falls under a _different_ exception to the Fourth Amendment from the 'plain view' exception."

I keep reading the 4th Amendment, but I still don't see anything that says it's ok to conduct a search if you're just real sure you'll find something bad.

"Here, they argue (rightly or wrongly; again, you may disagree with them) that the possession of contraband simply isn't information that falls within reasonable privacy expectations in the first place."

Again, the Fourth protects places - not things. While the 50 kilos of cocaine in my living room may not be protected, my living room (being a part of my home) is. Ergo, a cop who busts through the door, grabs the cocaine, and runs back out without looking at or touching anything else has still violated my 4th Amendment rights against unreasonable search and seizure. If he wants to enter my home, he needs probable cause and/or a warrant. Likewise, if he wants to search my trunk, he needs probable cause. It doesn't matter what I have in the trunk; the trunk itself is protected from searches without probable cause unless it's sitting wide open and subject to 'plain view'.

"I don't see thermal imaging and wiretaps and such meeting that standard now or ever."

You could easily have software that filters out anything not illegal - leaving only illegal 'unprotected' items for the police to view. Now what happens when your software does that and reports strictly illegal items to the police about you? Does that now make it ok to tap everyone's phones and scan everyone's house and car? As someone else pointed out, just what happens if we develop satellite-based technology that can do all this work for them? You could literally start shooting gamma rays through every part of the US and map everything down to the square inch. With powerful enough computer systems and good enough software, you could pinpoint every illegal item or substance in the country at all times. That said, we've still got a satellite mapping every square inch of our homes, bodies, children, etc. Is that what we want for ourselves?

'The Fourth doesn't protect things - it protects places.'

If that were true, it wouldn't protect 'information' _at all_ and we'd have to throw out many, many years of legal precedent protecting us from all sorts of snooping. You may recall that this was a big issue in the Wiretapping Cases a two or three decades back and that the Court decided to interpret the Fourth Amendment more broadly, precisely in order to guard _against_ such intrusions.

'It doesn't matter if he's got a kilo of coke or a box of matches in the trunk; the trunk is all we need to hear. Look at it this way - assume that the only item in the trunk was pot. Assume further that the first cop on the scene (with no dog) just decided for the hell of it to make the guy pop the trunk without consent or probable cause. What would happen and why?'

The evidence would be tossed, for _two_ reasons: (a) the trunk wasn't within the scope of the original stop, and (b) with no further information, the police had no authority to make him open it. On the other hand, if they'd smelled what they reasonably believed to be a rotting corpse and thought the smell emanated from the the trunk, they _could_ have made him open it even if they hadn't stopped him for that reason.

'The Fourth protects places regardless of the contents of said places. . . . The cop can have 30 years of experience telling him this guy's definitely got some pot under the seat and he still can't search without probable cause.'

Not quite. He can't _expand_ his search to include protected areas unless he's got probable cause. But he can get that probable cause in any number of ways, including searches that don't violate the Fourth Amendment (either by not being covered by it or by being 'reasonable'). The issue in the case under discussion here is whether the cops _got_ their probable cause in a Constitutionally acceptable manner -- i.e., whether the dog-sniff search was prohibited by the Fourth Amendment.

'I keep reading the 4th Amendment, but I still don't see anything that says it's ok to conduct a search if you're just real sure you'll find something bad.'

Then you're reading it correctly, because it doesn't say that and no one in this thread is arguing that it does.

'You could easily have software that filters out anything not illegal - leaving only illegal 'unprotected' items for the police to view. Now what happens when your software does that and reports strictly illegal items to the police about you? Does that now make it ok to tap everyone's phones and scan everyone's house and car?'

No, but not for the reasons at issue in this case. Again, the Court decided long ago that the Fourth Amendment _doesn't_ protect only 'places' and put constraints on the 'reasonable' uses of such technology. The logic of the current case doesn't alter them in any way (although no doubt as such technology develops, the Court will have to reconsider what is and isn't 'reasonable' in this context).