Dog sniffs not a search; what next?

Here's the money quote from today's 6-2 U.S. Supreme Court decision that says a dog sniff at a traffic stop is not a search:

"A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." (SCOTUS Blog)

That's a bunch of hoakum. All searches are looking for illegal items, so the Supreme Court majority's distinction is specious. The question should be whether the dog is a tool for conducting searches for contraband, or somehow just an extension of the officer. (As an aside, the fiction that the dog is itself an "officer" carries too much weight. Swear the hound in, then, why don't you? Place your left paw on the Bible and raise your right paw to God ...)

South Texas Law Professor Dru Stevenson, commenting at TalkLeft, offered the tired, "if-you-don't-have-anything-to-hide" response:

I don't carry drugs in my car, so dog sniffs around my parked vehicle do not pose much of a threat to me. It's hard for many of us to get passionate about protecting people's liberty to pursue illegal activities. And if none of us really have drugs in our trunks, it is even LESS likely that the police would bother expending resources on dog-sniff traffic stops.

So Professor Stevenson is alright with being searched by dogs because he thinks they won't find anything. But that doesn't mean what the dog is doing isn't a search! Dogs can now be trained to sense medical information with a "sniff," so once the government can articulate some public need for gathering that information, will that not be a search, either? His position also doesn't address the functional issue. Typically there's at most one dog per traffic unit, so traffic officers only call for the K-9 unit if the driver refuses to consent to a search. Should it be legal for an officer to make the driver wait for the K-9 unit if there is no other reason to believe they're violating the law. I don't think so, but this opinion seems to leave that common tactic wide open.

CrimProf blog has more on the precedents behind the decision, while Orin Kerr at the Volokh Conspiracy helpfully explains the court's reality-based reasoning: You see, the

"'reasonable expectation of privacy' is not the same as the expectation of privacy of a reasonable person, but rather is a term of art keyed heavily to property law. Because a person cannot have a property right in narcotics, the thinking goes (whether rightly or wrongly), interfering with his drugs does not infringe a property right and therefore does not constitute a search."

Well I'm glad we got that cleared up. Otherwise I'd have thought a reasonable expectation of privacy meant, you know, a reasonable expectation of privacy. Kerr identifies the fundamental shift in the Court's Fourth Amendment interpretation:

In my view, this is a potentially troubling development. The Fourth Amendment traditionally has focused on how the surveillance occurred, rather than the nature of the information obtained. Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information. This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasong focus on the nature of the information rather than how the information is obtained, it's no longer so clear.

I'm looking forward to reading the opinion (pdf) and digesting the outcome more, but this is awful news. Between this bad decision and Atwater v. Lago Vista, there may need to be state legislation introduced to restore the Fourth Amendment rights stripped away by the Supremes at traffic stops since the turn of the century. Viva the new federalism, huh?

UPDATE: New 21st Century Fourth Amendment Proposed