Posted on 02/27/2013 5:08:50 PM PST by Kaslin
Imagine that a police officer, after taking it upon himself to search someone's car, is asked to explain why he thought he would find contraband there. "A little birdie told me," he replies.
Most judges would react with appropriate skepticism to such a claim. But substitute "a big dog" for "a little birdie," and you've got probable cause.
Or so says the U.S. Supreme Court, which last week unanimously ruled that "a court can presume" a search is valid if police say it was based on an alert by a dog trained to detect drugs. The court thereby encouraged judges to accept self-interested proclamations about a canine's capabilities, reinforcing the alarmingly common use of dogs to justify invasions of privacy. Drug-detecting dogs are much less reliable than widely believed, with false-positive error rates as high as 96 percent in the field. A 2006 Australian study found that the rate of unverified alerts by 17 police dogs used to sniff out drugs on people ranged from 44 percent to 93 percent.
Police and prosecutors commonly argue that when a dog alerts and no drugs are found, "the dog may not have made a mistake at all," as Justice Elena Kagan put it, writing for the Court. Instead, it "may have detected substances that were too well hidden or present in quantities too small for the officer to locate."
This excuse is very convenient -- and completely unfalsifiable. Furthermore, probable cause is supposed to hinge on whether there is a "fair probability" that a search will discover evidence of a crime. The possibility that dogs will react to traces of drugs that are no longer present makes them less reliable for that purpose.
So does the possibility that a dog will react to smell-alike odors from legal substances, distractions such as food or cues from their handlers. Given all the potential sources of error, it is hard to assess a dog's reliability without looking at its real-world track record. That is why the Florida Supreme Court, in the 2011 decision that the U.S. Supreme Court overturned, said police should provide information about a dog's hits and misses.
"The fact that the dog has been trained and certified," it said, "is simply not enough to establish probable cause," especially when, as in most states, there are no uniform standards for training or certification.
Kagan, by contrast, minimized the significance of a dog's success at finding drugs in the field. She said police testing in artificial conditions is a better measure of reliability, even though handlers typically know where the drugs are hidden and can therefore direct the animals to the right locations, either deliberately or subconsciously.
Instead of requiring police to demonstrate that a dog is reliable, this decision puts the burden on the defense to show the dog is not reliable through expert testimony and other evidence that casts doubt on the training and testing methods used by police. But experts are expensive, and police control all the relevant evidence.
Police even determine whether the evidence exists. Many departments simply do not keep track of how often dog alerts lead to unsuccessful searches, and this decision will only encourage such incuriosity.
The court previously has said that police may use drug-sniffing dogs at will during routine traffic stops and may search cars without a warrant, based on their own determination of probable cause. Now that it has said a dog's alert by itself suffices for probable cause, a cop with a dog has the practical power to search the car of anyone who strikes him as suspicious.
Even the question of whether a dog did in fact alert may be impossible to resolve if there is no video record of the encounter, which is often the case. As Florida defense attorney Jeff Weiner puts it, the justices "have given law enforcement a green light to do away with the Fourth Amendment merely by uttering the magic words, 'My dog alerted.'"
A police state is a safe state, learn to enjoy it.
ARRFF - WOOF
Where do I start? Your Fourth amendment rights can now be completely circumvented by a dog. Man’s best friend is now your worst enemy.
Every cop can now get a “certified” dog and search ANYONE, ANYWHERE, ANYTIME.
Dog and cop walk by your house and “smell” drugs. Probable cause; SWAT; busted front door. Computers and papers siezed, oh, and your cars too. There has got to be drugs here somewhere!
...don’t turn around...Der Kommissar’s in town...
Eighty pound dog eh? I need to break out some of my hidden stash of Compound 1080.
In 1973 I was about to get on an AF C-130 at Bangkok flying to Diego Garcia. About 7 of us were lined up and told to place our bags etc on the floor. An AF policeman came walking down the line with a dog. I was last in line and the dog “hit” on the envelope holding my orders. I was placed under arrest and taken to an interogation room and read my rights. Three AF policemen ripped open the envelope and couldn’t find anything. A Sgt said “Get that dog back in here.” They brought the dog back in and he ignored the envelope. His handler said “He hasn’t had a hit in a while and just wanted some excitement.” Scared the crap out of me.
The SC was set up to protect the citizens from stuff like this. Now the SC is part of the problem.
This was a unanimous decision, which indicates it isn’t some leftist plot to overthrow America.
“Wheetley concluded, based principally on Aldo’s alert, that he had probable cause to search the truck. His search did not turn up any of the drugs Aldo was trained to detect. But it did reveal 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze, and a coffee filter full of iodine crystals — all ingredients for making methamphetamine. Wheetley accordingly arrested Harris, who admitted after proper Miranda warnings that he routinely “cooked” methamphetamine at his house and could not go “more than a few days without using” it.”
“In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defend-ant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.”
http://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf
People are going to turn the tables and start shooting the cops’ dogs.
A dog and the presence of a palmable non-unique package on someones person should not be the only piece of evidence required to convict. Often cash/property is seized unless the mark can prove they earned the money legally. Such a low standard is easily abused by law enforcement and there have been numerous such cases.
These are not laws made by a government “for the people”. These are laws to protect government from the people as it steals from us.
Imagine the results in the drug war if cops could just walk into any home without a warrant.
“Imagine the results in the drug war if cops could just walk into any home without a warrant.”
That isn’t what this decision involves.
I’m just impressed an officer was able to not shoot a dog long enough to lead it around a car.
Bullcrap. A drug-sniffing dog around a car is no different than a warrentless search.
This won't happen for many reasons. First of all, we are too civilized. Second, the dog is not guilty of anything - it just obeys commands. Third, a police dog is treated as a police officer when it is necessary to classify you as a threat. And fourth, what LEO will allow you to draw a firearm in his presence? The LEO can draw and fire under 2 seconds because his holster is not obstructed. How fast could a common citizen draw from a concealed carry holster under a jacket?
The transition from the all-polite society to the shoot-on-sight society will have a huge hysteresis. Many people will let themselves be killed just because they cannot make themselves believe what is about to happen. As I said, we are too civilized. A caveman would have no problem here. But we are not cavemen; at first we will refuse to see evil even when the evil is in front of us.
I was thinking more along the lines of a sniper who’s a member of a street gang. A police dog is a serious threat to this bunch, and they’ll take it out.
I agree, though, that nobody is about to shoot a cop’s dog while they can be seen doing the deed. It’s suicide. Dorner level suicide-by-cop. And the cops will get a *lot* of leeway from the citizens as they start cutting though them. But if the State doesn’t take out millions of people overnight, I think you’ll start seeing Regulators coming back. But they won’t be targeting lone ranchers minding their own business this time.
The courts have always considered a search of a car different from one of a home. There are restrictions on warrentless searches, but those restrictions were not an issue in this case. The only issue before the Supreme Court was if the dog’s alerting created a reasonable belief that drugs might be there. Their ruling was that it MIGHT, but that a court needs to look at the total situation rather than focus on just one area.
On 9-0 decision, there probably isn’t much controversy involved.
“false-positive error rates as high as 96 percent in the field”
No way.
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