concurring
I concur in the result but disagree with the conclusion of the majority that a canine sniff performed outside an apartment for the purpose of detecting drugs located inside that apartment may be performed without a warrant based on reasonable suspicion. I would hold that the use of a canine at the threshold of a dwelling to detect an item found inside that dwelling constitutes a search, thus triggering the protection of the Fourth Amendment. Due to the heightened expectation of privacy one has in his or her dwelling, I would apply the standard principle that absent only a few narrowly prescribed exigent circumstances, the search of a dwelling must be made pursuant to a warrant based on probable cause.
The issues in the instant case are (1) whether a canine sniff of the exterior of a dwelling that is utilized to detect the presence of contraband inside that dwelling constitutes a search or seizure and if so, (2) whether the search was reasonable, i.e, whether the limited intrusive nature of the search and the fact that it can detect only contraband act to lower the standard from probable cause to reasonable suspicion.
WHETHER THE FOURTH AMENDMENT IS IMPLICATED
The majority fails to conclusively state how the protections of the Fourth Amendment apply to Ortiz. As the majority correctly *809states, the Fourth Amendment and Neb. Const, art. I, § 7, prohibit only unreasonable searches and seizures. Obviously, if no search or seizure occurred, Ortiz could not claim the protections of the Fourth Amendment, and the inquiry would end. See, e.g., U.S. v. Colyer, 878 F.2d 469 (D.C. Cir. 1989) (canine sniff was not search and therefore neither reasonable suspicion nor probable cause was required). Because it is clear that a seizure did not take place in the instant case where there was nothing tangible taken or detained by the police, I focus my inquiry only on whether a search occurred. United States v. Karo, 468 U.S. 705, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984). See, generally, State v. Cox, 247 Neb. 729, 529 N.W.2d 795 (1995) (discussing relation of property interests to determination of whether seizure has occurred).
As the majority stated, this court has traditionally relied on the principles enunciated in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), when considering whether Fourth Amendment protections are involved. See, also, State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986) (discussing Katz). A person’s right to invoke the protection of the Fourth Amendment as to unreasonable searches and seizures depends not upon a property right in the invaded place, but upon whether the person who claims protection of the Fourth Amendment has a legitimate expectation of privacy in the invaded place. Katz, supra', State v. Harms, 233 Neb. 882, 449 N.W.2d 1 (1989). Although the Fourth Amendment protects people, not places, one cannot understand an individual’s privacy expectations without reference to a place. Katz, supra (Harlan, J., concurring). Thus, we have held that “ ‘[ojwnership and .possessory rights in “places” are still important in determining whether or not a particular person has a legitimate expectation of privacy in a particular place.’ ” Harms, 233 Neb. at 888, 449 N.W.2d at 5.
I concede there is a split of authority regarding whether a canine sniff constitutes a search. Relying on the dicta in United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), which stated that a canine sniff of luggage that was detained in a public airport did not constitute a search within the meaning of the Fourth Amendment, the federal courts over*810whelmingly hold that canine sniffs are not searches. See State v. Waz, 240 Conn. 365, 292 A.2d 1217 (1997) (citing federal cases). We have also previously relied on Place to determine that a canine sniff of an express mail package did not constitute a search. State v. Morrison, 243 Neb. 469, 500 N.W.2d 547 (1993), disapproved on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). In addition to Place, United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984), made it clear that some types of police techniques such as field tests and dog sniffs are not protected as searches under the Fourth Amendment because of the limited nature of the intrusion. Jacobsen further indicated that if a police technique reveals only the presence or absence of contraband, the Court does not view the technique used to be a search.
State courts are also divided on the issue. Some courts conclude, usually on the basis of their state constitution, that canine sniffs constitute searches. However, other courts apply the reasoning of Place and Jacobsen to conclude that canine sniffs do not constitute a search. The reasoning of Place and Jacobsen is not without criticism, some of which I find relevant to the instant case.
First, as Justice Brennan noted in his dissent in Jacobsen, when the focus is on the nature of the item sought and revealed through the use of a dog sniff, the resulting theory is that individuals have no reasonable expectation of privacy due to the fact that they are carrying contraband. As Justice Brennan stated, this is contrary to the “fundamental principle that ‘[a] search prosecuted in violation of the Constitution is not made lawful by what it brings to light.’ ” Jacobsen, 466 U.S. at 140, quoting Byars v. United States, 273 U.S. 28, 47 S. Ct. 248, 71 L. Ed. 520 (1927). Such a focus also ignores the principles articulated in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), in which the Court held that Katz had a legitimate expectation of privacy in his telephone conversation regardless of the illegality of the content of that conversation. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.... But what he seeks to preserve as private, even in an area accessible *811to the public, may be constitutionally protected.” Katz, 389 U.S. at 351-52.
I agree that a dog sniff is undisputably less intrusive than a “full-blown” search due to its ability to identify only the presence or absence of contraband. However, as illustrated by Justice Brennan’s dissent in Jacobsen and this court’s reliance on the principles enunciated in Katz, this distinction alone should not be the deciding factor when considering whether a sniff constitutes a search. Were this to become the deciding factor, the court would act to foreclose any consideration of the circumstances under which the sniff was conducted and “may very well [pave] the way for technology to override the limits of law in the area of criminal investigation.” Jacobsen, 466 U.S. at 137-38 (Brennan, J., dissenting). See, also, Hope Walker Hall, Sniffing Out the Fourth Amendment: United States v. Place— Dog Sniffs — Ten Years Ixiter, 46 Maine L. Rev. 151 (1994). To the extent that a few cases appear to consider the ability of canine sniffs to detect only contraband as the deciding factor without considering other circumstances, I find the reasoning of those cases to be unpersuasive. See, U.S. v. Reed, 141 F.3d 644 (6th Cir. 1998); U.S. v. Lingenfelter, 997 F.2d 632 (9th Cir. 1993); U.S. v. Colyer, 878 F.2d 469 (D.C. Cir. 1989).
More important, the U.S. Supreme Court left unclear whether canine sniffs do not constitute searches only when conducted in areas such as airports, where the expectation of privacy on the part of passengers is already lowered. See Hall, supra. This is an important distinction because as one author has noted, the large majority of federal court decisions address dog sniffs in the context of luggage or other public areas outside of the defendant’s personal residence. Such cases require only a plain application of the dicta in United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). However, when a sniff occurs in the context of an area where there is a heightened expectation of privacy, the Second Circuit, along with many state courts, concludes that such sniffs do constitute searches. See Hall, supra (listing cases). I find the reasoning of these cases to be convincing.
In United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985), the Second Circuit held that a canine sniff conducted at the thresh*812old of an apartment constituted a search of that apartment under the U.S. Constitution, requiring a warrant based upon probable cause. Specifically, the court held:
Here the defendant had a legitimate expectation that the contents of his closed apartment would remain private, that they could not be “sensed” from outside his door. Use of the trained dog impermissibly intruded on that legitimate expectation. The Supreme Court in Place found only “that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a ‘search’ within the meaning of the Fourth Amendment.” . . . Because of [the defendant’s] heightened expectation of privacy inside his dwelling, the canine sniff at his door constituted a search.
Thomas, 757 F.2d at 1367. Thus, the Thomas court stated:
It is one thing to say that a sniff in an airport is not a search, but quite another to say that a sniff can never be a search. The question always to be asked is whether the use of a trained dog intrudes on a legitimate expectation of privacy.
Id. at 1366.
Other federal circuits have reconciled the holding of Thomas by noting that the issues in the cases they had under consideration did not involve an area such as a dwelling where the expectation of privacy is heightened. I believe this implicitly acknowledges that there may be some instances in which a canine sniff might be considered a search. See, e.g., U.S. v. Stone, 866 F.2d 359 (10th Cir. 1989) (distinguishing United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985), on basis of heightened expectation of privacy); U.S. v. Whitehead, 849 F.2d 849, 857 (4th Cir. 1988) (distinguishing sleeping car on train from dwelling in United States v. Thomas, supra, and stating, “Place obviously did not sanction the indiscriminate, blanket use of trained dogs in all contexts”), abrogated in part on other grounds, Gozlon-Peretz v. United States, 498 U.S. 395, 111 S. Ct. 840, 112 L. Ed. 2d 919 (1991); U.S. v. Thomas, 787 F. Supp. 663 (E.D. Tex. 1992) (placing dog inside trunk and passenger compartment of vehicle constituted invasion into area where there was expecta*813tion of privacy). See, also, Hope Walker Hall, Sniffing Out the Fourth Amendment: United States v. Place — Dog Sniffs — Ten Years Later, 46 Maine L. Rev. 151 (1994) (discussing cases). This distinction has been noted by state courts as well. See, State v. Young, 123 Wash. 2d 173, 867 P.2d 593 (1994) (noting that private residences were not involved in prior cases where Washington appellate courts approved warrantless dog sniffs); State v. Dearman, 92 Wash. App. 630, 962 P.2d 850 (1998) (dog sniff of garage of private residence required warrant based on probable cause).
Although a canine sniff for narcotics may be less intrusive in relation to other investigatory methods and will disclose only the presence or absence of narcotics, it remains a way of detecting the contents of a private, enclosed space. Through the use of a dog, officers are able to obtain information about what is contained within a dwelling that they could not obtain utilizing their own senses. “Consequently, the officer’s use of a dog is not a mere improvement of their sense of smell, as ordinary eyeglasses improve vision, but is a significant enhancement accomplished by a different, and far superior, sensory instrument.” Thomas, 757 F.2d at 1367. See, also, Dearman, 92 Wash. App. at 635, 962 P.2d at 853 (“using a narcotics dog goes beyond merely enhancing natural human senses and, in effect, allows officers to ‘ “see through the walls” of the home’ ”); State v. Pellicci, 133 N.H. 523, 580 A.2d 710 (1990) (canine sniff of vehicle is search because dog discerned something not otherwise apparent to officers through their own senses).
The majority in the instant case never addresses whether they consider the canine sniff conducted at the threshold of Ortiz’ apartment to be a search. Rather, the majority states that Ortiz had some expectation of privacy in the hallway and applies a reasonable suspicion standard to determine whether the sniff was reasonable. I disagree with this reasoning. As illustrated by United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985), Dearman, supra, and others, the dog in the instant case was not used to locate contraband in the hallway. Rather, it was used to determine whether there was contraband inside Ortiz’ apartment. As the second part of this concurrence illustrates, the location of the dog in attempting to determine the contents of the *814apartment may be a consideration when determining whether the search was reasonable, but it does not change the fact that the officers used the canine to locate something inside a private dwelling. Thus, it is Ortiz’ expectation of privacy in his apartment that is at issue. Under the facts of the instant case, I agree with the reasoning of Thomas and other authorities that a canine sniff at the threshold of an apartment constitutes a search of that apartment, thus involving the Fourth Amendment. Accordingly, I would hold that the canine sniff in the instant case constituted a search.
WHETHER CANINE SNIFF OF DWELLING REQUIRES WARRANT
The canine sniff in the instant case constituted a search, thus the next issue to be determined is whether that search was reasonable. I agree with the majority to the extent that they determine the search was unreasonable. However, I disagree with their reasoning that a canine sniff may be performed in an apartment hallway for the purpose of detecting contraband inside the dwelling without a warrant based on reasonable, articulable suspicion. Although I recognize that such a warrantless search may be appropriate in circumstances where the expectation of privacy is lower, I believe a search of a dwelling must be conducted pursuant to a warrant issued on the basis of probable cause.
Although the majority recognizes that there is a greater expectation of privacy in a dwelling than in objects of a less intimate or transient nature, the majority nevertheless balances the interests of the individual and the government to conclude that a warrantless intrusion based on reasonable suspicion was the appropriate standard. I disagree with this analysis for two reasons. First, the analysis ignores the principle that searches and seizures without a warrant are presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Second, even if a balancing of interests is considered when a canine sniff occurs in circumstances involving a dwelling, I believe the interests of the privacy of the individual outweigh the government’s interest in utilizing a canine sniff of a dwelling on anything less than a standard of probable cause.
*815It cannot be denied that “ ‘ “[fjreedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment.” ’ ” Payton, 445 U.S. at 587. As such,
[tjhe Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their . . . houses . . . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511. [T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Payton, 445 U.S. at 589-90. Accordingly, we have held that a warrantless search must be strictly confined by the exigencies which justify its initiation. State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991), citing Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985), and State v. Dearman, 92 Wash. App. 630, 962 P.2d 850 (1998), both concluded that a canine sniff of an area which involved a heightened expectation of privacy constituted a search and, therefore, required a warrant based on probable cause. This view is supported by Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987), in which the U.S. Supreme Court was unwilling to expand the plain view doctrine to allow for a warrantless “cursory inspection” or something less than a “full-blown search” within a home on the basis of reasonable suspicion. 480 U.S. at 328. The Court stated: “We are unwilling to send police and judges into a new thicket of Fourth Amendment law, to seek a creature of uncertain description that is neither a ‘plain view’ inspection nor yet a ‘full-blown search.’ ” 480 U.S. at 328-29.
*816In the context of canine sniffs, it has been suggested that the area or object searched should be a determining factor in deciding whether a dog sniff must be supported by a warrant based on probable cause. For example, a search of a home or person should receive the greatest level of protection. However, a search of luggage at an airport is necessarily less intrusive because the privacy expectations of passengers are lowered and thus might be permissible based on reasonable suspicion. See Kenneth L. Pollack, Stretching the Terry Doctrine to the Search for Evidence of Crime: Canine Sniffs, State Constitutions, and the Reasonable Suspicion Standard, 47 Vand. L. Rev. 803 (1994).
Courts that have adopted a reasonable suspicion standard have done so on the basis that under the facts presented, the search was reasonable due to a diminished expectation of privacy in the thing searched, the importance of the law enforcement interests at stake, and the minimal intrusiveness of the dog sniff. U.S. v. Whitehead, 849 F.2d 849 (4th Cir. 1988). As a result, most of the cases that adopt a standard of reasonable suspicion involve canine sniffs that occurred in areas outside of an individual’s residence and where expectations of privacy were lower. See, e.g., U.S. v. Whitehead, supra (passenger train sleeping compartment); Pooley v. State, 705 P.2d 1293 (Alaska App. 1985) (checked airline luggage); People v. May, 886 P.2d 280 (Colo. 1994) (express mail package); People v. Unruh, 713 P.2d 370 (Colo. 1986) (safe in police custody); State v. Waz, 240 Conn. 365, 292 A.2d 1217 (1997) (U.S. mail parcel); State v. Pellicci, 133 N.H. 523, 580 A.2d 710 (1990) (automobile); Com. v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987) (rented storage locker in public area). Other courts, however, indicate that the higher standard of probable cause would be applied in cases involving the search of a dwelling where the expectation of privacy was higher. See U.S. v. Whitehead, supra (holding that reasonable suspicion standard applied because train sleeping compartment was not analogous to higher expectation of privacy of hotel room). See, also, State v. Waz, supra (distinguishing sniff of mail parcel from heightened expectation of privacy seen in Thomas)-, U.S. v. Roby, 122 F.3d 1120, 1126 (8th Cir. 1997) (Heaney, J., dissenting) (“[w]hile the use of trained dogs to detect narcotics is justifiable in airports or other public *817areas ... it should not be extended to permit governmental intrusion into the privacy of a hotel room”).
Of particular interest is a pair of cases from the Supreme Court of Pennsylvania which illustrate the reasoning behind requiring a warrant based on probable cause when a dwelling or person is the object of the search but perhaps allowing a warrantless search based on reasonable suspicion when the privacy interests are lessened. The majority in the instant case relies on, and provides a lengthy quote from, the Pennsylvania case Johnston, supra. In Johnston, the Supreme Court of Pennsylvania determined that a canine sniff of a public storage locker did not constitute a search under the U.S. Constitution but did constitute a search under the state constitution. The court then stated that it was unwilling to apply a balancing of interests in order to determine whether a sniff constituted a search because when making that determination, the balance had been struck by the Fourth Amendment itself. However, the court did find the balancing inquiry appropriate in determining whether the canine sniff search necessarily involved the “full-blown” warrant requirements of the Fourth Amendment. The court stated that much of the law enforcement utility of dogs would be lost if “full-blown” warrant procedures were required but also recognized that there had to be some restraint on the use of them. The court then concluded that under the facts of the case, the warrantless search of the locker was permissible because the officers had articulated a reasonable suspicion that drugs might be located in the storage locker and the officers were lawfully situated when they conducted the search.
Although the majority opinion provides a lengthy quote from Johnston, supra, it does not cite the later Pennsylvania case of Com. v. Martin, 534 Pa. 136, 626 A.2d 556 (1993). In Martin, a warrantless canine sniff search was conducted on a satchel carried by an individual. The court stated that the “middle ground” approach taken in Johnston was appropriate in that case because the police intrusion was minimal, because the police intrusion was directed solely at contraband drugs, and because much of the utility of the drug detection dogs would be lost if a warrant was required. Martin, 534 Pa. at 136, 626 A.2d at 560. The court then noted, however, that the protection of the privacy interest *818one has in their person is a principal object of Fourth Amendment protection. Based on this heightened privacy interest, the court held that in order to conduct a canine sniff search on a person, the police must have probable cause to believe that the search will uncover contraband and that any further search of the person beyond that allowed by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), must be pursuant to a warrant, although police could detain the subject for a reasonable time while they sought the warrant. The court further stated:
We are mindful that government has a compelling interest in eliminating the flow of illegal drugs into our society, and we do not seek to frustrate the effort to rid society of this scourge. But all things are not permissible even in the pursuit of a compelling state interest. The Constitution does not cease to exist merely because the government’s interest is compelling. A police state does not arise whenever crime gets out of hand. In fact, all today’s holding requires is what police should themselves insist on: probable cause to believe that a crime has been committed or contraband is to be found before there is a police intrusion, beyond that permitted by Johnston and Terry, into one’s person. [A] free society cannot remain free if police may use drug detection dogs or any other crime detection device without restraint. The restraint which we today impose on the use of drug detection dog searches of persons is modest enough, in light of our constitutional mandate.
Martin, 534 Pa at 145, 626 A.2d at 161. Thus, it is clear that the Pennsylvania Supreme Court, when dealing with cases involving a heightened expectation of privacy, requires probable cause.
I believe a rule allowing the warrantless canine search of an apartment based on reasonable suspicion is illogical and improper. Justifications stated by the court in Com. v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987), and most others for the adoption of a reasonable suspicion standard are (1) in cases involving searches of public places or items such as luggage that are in transit, there is a diminished expectation of privacy in those items; (2) the concern that the utility of drug-detecting dogs will be lost if warrant procedures are required; and (3) the nature of the search is not intrusive, i.e., it does not require the opening of *819the object or the entrance to the place being searched and can detect only contraband.
In the instant case, the expectation of privacy is heightened because it involves a residence. The protection of the privacy expectation an individual has of their person and in their dwelling are the core protections of the Fourth Amendment. The majority appears to recognize this but moves away from the issue by referring to Ortiz’ expectation of privacy in the hallway. I believe this reasoning is flawed. As previously discussed, the search in the instant case was not a search of the hallway. It was a search specifically aimed at contents inside Ortiz’ apartment. Additionally, the difference between a public area, or an item in transit, and the hallway of an apartment building is significant. While it is shared by residents of the building and their guests, it does not experience the traffic of an airport or other public area. The existence of a semipublic hallway should not limit the expectation of privacy a person has in their apartment. As one justice has stated, “I do not believe that the Fourth Amendment protects only those persons who can afford to live in a single-family residence with no surrounding common space.” U.S. v. Roby, 122 F.3d 1120, 1127 (8th Cir. 1997) (Heaney, J„ dissenting).
Next, little of the utility of drug detection dogs is lost by requiring a warrant prior to the canine sniff search of a dwelling, although this is a serious concern in cases of airport security and items being sent in the mail. For example, the expectation of privacy in luggage is lower than the expectation of privacy in a dwelling, while the police interests in utilizing canines to detect contraband in luggage is quite high due to the transient nature of the object searched. When a transient item is at issue, officers simply do not have the time or opportunities necessary to observe the owner of the luggage to the point where probable cause could be established. Thus, the use of a canine is of great utility to officers in cases with facts such as those in United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), but is only one of a number of available investigative tools when a dwelling is concerned.
Finally, although a canine sniff is certainly less intrusive than a “full-blown” search, it is in error to rely on this factor in cases *820involving core Fourth Amendment protections. Standing alone, this factor is not strong enough to justify allowing a warrantless canine sniff of a dwelling based on reasonable suspicion. To so hold would be tantamount to stating that the protections of the Fourth Amendment become lessened due to advances in investigative procedures. This is a position that I am not willing to subscribe to. Therefore, I concur in the result.