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To: bigLusr
"My point was that the dog sniff itself was not an invasion of privacy."

Then neither would running an x-ray machine over the car or running an infrared scan on the car or doing other such tests which don't physically impact the vehicle. Either we keep it to what a human officer can detect in 'plain view' or we open the floodgates to using things like NSA's TEMPEST to really shoot personal privacy to hell.

"But the cops had probable cause.... the dog barked."

Remind me to take my dog's "Puperoni" treats out of my trunk before driving home. Wouldn't want to send the wrong message.

"The opinion specifically noted that the sniff itself didn't inconvenience Caballes in any way"

It doesn't inconvenience you in any way if I put a tap on your phone and read your email either. So long as I don't disrupt your telephone service or your email, everything's a-ok, right? Inconvenience isn't the reason we don't allow blanket searches. We don't require warrants because it's 'inconvenient' to have a dozen cops rifling through your stuff. We require warrants because it's wrong for the state to invade the privacy of citizens without just cause and due process. Using devices or animals which perceive beyond 'plain view' violates the reasoning behind 'plain view's' reason for being. If you can search everything, then search everything. It's either plain view or it's everything.

"The fourth amendment protects a person's effects except when the state has probable cause to search or seize them."

The protection of privacy extends beyond seizure to cover the search itself. A 'plain view' search is really a misnomer. Things have to be readily apparent to be caught in such a "search", whereas a true search involves seeking out something. When a drug dog was brought over and used to search the vehicle using its extraordinary abilities (a sense of smell many times more powerful than that of a human), a search was conducted without probable cause. The only 'cause' mentioned was that the suspect appeared to be acting 'nervous' - whatever that means.

The Soviets had the same protections for all their citizens in their constitution that we have in our's. Ask yourself why it is that the average Soviet lived so differently from the average American when they had the same rights guaranteed in supreme law.
443 posted on 01/24/2005 2:14:08 PM PST by NJ_gent (Crouch down and lick the hand that feeds you; and may posterity forget that ye were our countrymen.)
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To: NJ_gent
Then neither would running an x-ray machine over the car or running an infrared scan on the car or doing other such tests which don't physically impact the vehicle... It doesn't inconvenience you in any way if I put a tap on your phone and read your email either. So long as I don't disrupt your telephone service or your email, everything's a-ok, right? Inconvenience isn't the reason we don't allow blanket searches.

There were two tests here for determining that the sniff was constitutional. One was the level of inconvenience that the suspect would have to endure (the fear that it'll let cops put suspects "through hell on a hunch").

The second was the amount of private information that could be gleaned from the process alone. X-rays, infrared scans, phone taps, etc, would all allow officers to learn more than whether or not someone has done something illegal. (This is why I came out against collecting the DNA of all arrestees in this thread. Someone in that thread pointed out that the inconvenience is minor, but I still found it abhorrent because the information gathered from a DNA sample goes far beyond whether or not someone is breaking the law. This ruling addresses both issues.) No proper reading of this ruling would allow the use of any of the other methods you listed without a warrant.

If you can search everything, then search everything.

You can't search everything. You can search smells... And not even all smells... since the court wouldn't have allowed the search if the dog was let into the man's car, you're just talking about smells that drift into the public... and you're not even allowed to do anything with those smells except determine whether there's an illegal substance present. If the dog sniff could let the officer know the guy's shopping list in addition to the location of the large stash of illegal contraband this guy was carrying, then the search, like the thermal imaging scans in Kyllo, would have been unconstitutional.

The only 'cause' mentioned was that the suspect appeared to be acting 'nervous' - whatever that means.

You haven't read the ruling... or at least not the footnotes. Caballes acted nervous, his car smelled of air freshener, and he said he was moving but only seemed to have a couple sports jackets in the car. Now... that wasn't probable cause. Nobody claims that was probable cause. If the officers thought those actions gave them probable cause they would have opened the trunk without first bringing out the drug dog.

But the court found that even without the "vague hunch" they got from Caballes' actions, the police were justified because the dog sniff did not invade Caballes' privacy.

Now, if you actually knew of scientific evidence that the drug dogs will react to Puperoni treats in addition to illegal substances, you might have a privacy case.

500 posted on 01/24/2005 4:34:56 PM PST by bigLusr (Quiquid latine dictum sit altum viditur)
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To: NJ_gent

What if the dog is simply trained to sniff for "car"?


522 posted on 01/24/2005 7:15:59 PM PST by Teacher317
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