A Stitch in Haste

Two key (and false) premises in the Supreme Court’s "sniff dog" jurisprudence (see post chain below) are that the dogs are infallible and that, since the dogs are only sniffing for illegal substances (i.e., drugs or explosives), "by definition" there can be no expectation of privacy from them.

There has been a mountain of evidence contradicting the first premise. Now we also have yet another counterexample negating the second:

You've heard of Bomb dogs? Drug dogs? Arson dogs? Now, Man's Best Friend is the latest weapon in the war on mold.

Traditional mold detection methods can be costly and drag on for weeks. Certified Mold Dogs generate quicker and more accurate results, which leads to lower remediation costs for homeowners and insurers.

First of all: "Certified" by whom exactly?

Anyway, a concerned homeowner who wants to know whether she has mold in her home and therefore hires a mold-dog firm raises no privacy red flags at first glance. But there is a secondary phenomenon arising: homeowners using mold dogs to challenge insurance denials for remediation claims. Insurance litigation can now literally reduce to "man versus dog" (or, more correctly, "lab versus dog").

Here again, the cult of infallibility regarding dog sniffs can have serious legal implications. Are we now going to see insurance companies forced to pay mold remediation claims that lab testing says is not necessary, based solely on the legal fiction of "the nose knows"?

Or perhaps we'll see the other edge of the sword. If the homeowner's human-based test results say mold, will insurance companies be entitled to require, as part of discovery, giving their mold dogs access to the home? How would you like it if, as part of an insurance dispute, you were required to let a mold dog rummage through your home?

Even the smallest baby steps toward greater reliance and trust in sniff dogs are steps in the wrong direction. They are not infallible. They are not immune from manipulation. They are not, in this context, "man's best friend" or "part of the family." They are just another tool to be used, and abused, in the erosion of privacy rights.

Oh, and for the animal lovers among the readership: there is also concern as to the humaneness of having dogs inhale toxic mold for a living. The ASPCA is reportedly investigating the practice.

Hat tip to Notes from the Legal Underground.