Law enforcement dogs perform two functions: detection and apprehension. In other words, they smell for things and bite people. Dogs can be trained as specialist sniffer dogs, specialist attack dogs, or as “dual-purpose” dogs that perform both functions. Because of their size and fierce personalities, German Shepherds and Belgian Malinois are the breeds typically used as either dual-purpose or attack dogs. Sniffers cover a much wider range of breeds including pointers, spaniels, labs, hounds, and retrievers.
In 2018, the Transportation Security Administration (TSA) transitioned to using mostly specialist sniffer dogs to search for drugs and bombs at airports, broadening the range of eligible breeds. If the dog would never assist with apprehension, it would not need the size, aggression, or teeth to incapacitate someone. Consequently, TSA’s dogs now look more like this and less like this. TSA did not give an official reason for this policy change. But employees were quoted as saying that they transitioned to dogs that wouldn’t “scare children.”
Why am I discussing dogs in a civil liberties blog? A policy that reduces stress in a tense environment seems unobjectionable, even admirable. But there may be another, more insidious consequence. In blunt terms, we may have traded our privacy for cute dogs. Right now, courts and legislatures are crafting rules that will define our digital privacy for decades. The TSA’s shift in policy illustrates a critical point: government plays an active role in shaping its power over us. In this crucial moment, it is worth understanding, and thinking carefully about, the tradeoffs between convenience and privacy that we are willing to accept.
The Fourth Amendment guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Critically, an interaction can only be an “unreasonable search” if it is, in fact, a search. Busting down your locked door and tearing through your cabinets is definitely a search. By contrast, if an officer watches you wave a gun around in a public park, that is definitely not a search.
There are a million grey area interactions in between. To deal with these, the Supreme Court purports to follow a test articulated by Justice Harlan in Katz v. U.S.: Did law enforcement breach your expectation of privacy, and was that expectation one that society considers reasonable? If so, that interaction was a search. Over the years, justices have used different approaches to gauge society’s expectations of privacy. One approach probes whether the interaction is invasive, distressing, or disruptive.
After discussing U.S. v. Place, a case about whether a police dog sniff at an airport constituted a search, my criminal procedure professor took an informal poll: “who would be uncomfortable if a German Shepherd came up to you when you were boarding a plane and sniffed you and your luggage?” When most of my classmates raised their hands—they would be intimidated—it may have been in part a reaction to the type of dog they envisioned. German Shepherds are big dogs. They weigh 60 to 80 pounds and are at least two feet tall. They have a very strong bite and tend to have a personality that is fiercely protective, and often quite aggressive. It is because of these traits that German Shepherds (as well as Belgian Malinois, which have very similar characteristics) are traditional dual-purpose police dogs. They have good noses, and their size, bite, and personality make them effective at apprehension. As part of their training, they are taught to bite potential suspects into submission and conditioned to protect their handlers against any signs of danger.
Interacting with a trained German Shepherd, especially in an airport’s already stressful environment, can be intimidating, distracting, and even traumatizing. A defendant, arguing that a sniff test was a search, could credibly claim that society expects that such a rattling interaction occur only with probable cause or a warrant.
TSA’s “cute dog” policy sweeps the legs out from under that argument. Today, a German Shepherd would never sniff you at an airport. Instead, the sniffer would be a small, floppy eared, smiley dog; one bred for obedience and trained only to sniff and sit in exchange for treats. It would be hard for a defendant to argue that society is perturbed by affable pets in public places.
Moreover, the transition to detection-only dogs reduces the risk of incidental harm from the sniff interaction. Risk of destruction is a critical value underlying the Fourth Amendment. Police searches, in the time of the founding fathers as in modern day, can be dangerous and destructive. Police carry weapons, they are typically looking for something that’s hidden, and they are, by necessity, suspicious of those they search. Police searches can result in property damage, physical injury, and mental trauma. Preventing these risks, when possible, is one of the Fourth Amendment’s motivations. The transition to detection-only dogs greatly limits the risks associated with a sniff test. Now, sniffees no longer interact with a dog designed and conditioned to be a weapon.
Nonetheless, as they relate to dog-sniff jurisprudence, these points are moot for the time being. The Supreme Court has repeatedly held that sniff tests, even by breeds perceived as intimidating and by dogs trained to attack, are not a Fourth Amendment search. The current court is unlikely to overturn that precedent.
So why bring it up at all? By employing cuter dogs, TSA made sniffs less disruptive and less risky. It may even make them kind of fun! That comfort comes at a cost. The change in dogs does not change the substance of the interaction—law enforcement uses dogs to peer inside your property. But by using cute dogs and Instagram, the government cemented its ability to do so without the need for a warrant or even probable cause. TSA’s cute dog policy offers a vivid example of how government can shape and collapse our right to privacy.
Today more than ever, awareness of this informal government power is crucial. Technology presents novel questions about what constitutes a search. Without a warrant or probable cause, may law enforcement look through your photos if your phone is unlocked? May they examine documents you stored on the cloud? May they track where you’ve gone by looking up which towers your phone pinged?
The answers to these questions will derive from the expectations of privacy that we as society hold. The government will be working to shape those expectations. Its actions may be subtle, seemingly innocuous, and even adorable. As we increasingly trade privacy for comfort and convenience, we must keep in mind that these conveniences can come at a cost. Keep your ears up and your nose to the ground.