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.'"
And that is complete bullcrap. I have personally stood up to bad Supreme Court decisions - in federal court - and been proven right by subsequent SCOUTS decisions. And you are a slimy apologist for bad court decisions. A dog sniffing a car without any probable cause is no different than a cop kicking down a door of a house without such. You should be ashamed of yourself, but apologists for a police state have no shame.
I’m hardly an apologist for a police state. However, if a highly trained drug dog alerts at the outside of a vehicle, would a reasonable person conclude drugs are inside?
And the Supreme Court, in a 9-0 decision, says yes...provided the court allowing the evidence seized to be used also looks at the total picture. The conviction probably had a lot to do with this:
“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.”
I’ve driven in cold weather at times, but I never drove around with 8,000 matches...
I would, however, be interested in what court cases you have won by overturning SCOTUS decisions. What were you charged with, and how did you manage to overturn Supreme Court precedence?
“However, if a highly trained drug dog alerts at the outside of a vehicle, would a reasonable person conclude drugs are inside?”
Other than the police’ claim that the dog was “highly trained”, how is it possible to interview the dog to ascertain that the “alert” it is indicating is bona fide?
The dog cannot be cross-examined re its behavior.
The dog is introduced into the situation to register an effect where there is a possibility that a certain stimulus might be present. But again, how do we ascertain that the hound actually received “the stimulus” to which it’s producing a response? How do we _know_ that the response is correct, and not a false positive?
Let's say I train my dog to always "alert", now what? Prove you're innocent, that's what.
The article is quite clear that accuracy results aren't necessary: "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 requirement is for a reasonable person to believe it is likely, not that it is guaranteed. No one can be convicted based on a drug dog. It merely is one of the things that can provide probable cause.
The training the dog had received is documented in the case:
http://www.supremecourt.gov/opinions/12pdf/11-817_5if6.pdf
There is nothing in the case about the use of warrentless searches. The entire case is this question: Might a reasonable person use the behavior of a trained drug dog to conclude there was a reasonable probability?
“Held: Because training and testing records supported Aldo’s reliability in detecting drugs and Harris failed to undermine that evidence, Wheetley had probable cause to search Harris’s truck. Pp. 5–11.
(a) In testing whether an officer has probable cause to conduct a search, all that is required is the kind of “fair probability” on which “reasonable and prudent [people] act.” Illinois v. Gates, 462 U.S. 213, 235.”
“As discussed previously, probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens’ demands. We think the Illinois court attempted a too rigid classification of the types of conduct that may be relied upon in seeking to demonstrate probable cause. See Brown v. Texas, 443 U. S. 47, 443 U. S. 52, n. 2 (1979). In making a determination of probable cause, the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.”
http://supreme.justia.com/cases/federal/us/462/213/case.html
“Let’s say I train my dog to always “alert”, now what? Prove you’re innocent, that’s what. “
You are never convicted based on a drug dog. The only effect of the drug dog is to give reasonable cause to conduct a search, with the possibility still existing that any evidence found will be thrown out of court.
Or, can an alert now allow a search of any vehicle? Vehicles going through a DUI checkpoint, for example.
I don’t like it. “Fruit of the poisoned tree” must be the rare exception, not the rule, for somebody hauled into court. It really looks like you are espousing “guilty until proven innocent” as the law of the land.
You are not convicted, nor arrested based on a drug dog’s response. In this case, the guy, after receiving his Miranda warning, confessed. What is your problem with a confession, given after warning?
“Under the correct approach, a probable-cause hearing focusing on a dog’s alert should proceed much like any other, with the court allowing the parties to make their best case and evaluating the totality of the circumstances. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, the court should find probable cause.
But a defendant must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant may contest training or testing standards as flawed or too lax, or raise an issue regarding the particular alert. The court should then consider all the evidence and apply the usual test for probable cause—whether all the facts surrounding the 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.”
I just read today that there are numerous cases of incarcerated people under review due to the fact that they were convicted for “smell evidence” by dogs.
I’ll be interested to see how those reviews turn out and what the future will hold.
This was a unanimous decision, which indicates it isn’t some leftist plot to overthrow America.
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But it shows how far removed from the real world these robed idiots are...
People are going to turn the tables and start shooting the cops’ dogs.
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There are better ways to “turn tables” on ye old K-9 Patrol.
Lack of probable cause in a simple traffic stop. It would be like the cops being called for a noisy party, they arrive and it is not noisy at all, but they go ahead and search the house while they are there.
And SCOTUS can be quite schizo in that regard. In Kyllo v. United States they found thermal scans of a house - used to look for pot growing - to be unconsitutional. How is a thermal scan of a house different from a dog sniffing a car from the outside? Same intent, same lack of due cause, similar concept of remote sensing.
The SCOTUS matter was when I was called for federal jury duty. I vehemently disagreed with a recent SCOTUS decision that would have had bearing on the case in question. I voiced my disagreement in sidebar. And five years later, SCOTUS effectively reversed that decision. It's not that I had any direct bearing. But I can smell unconstitutional actions a mile off, even if SCOTUS sometimes cannot.
“You are never convicted based on a drug dog.”
No, the dog has to find the drugs a bad cop planted in your car first.
That’s the point, you have no control of your guilt or innocence if there is a dishonest cop. They could also use it as a way to extract bribes, “favors” from pretty women, or even seize a nice car, or just to deliberately detain someone they feel “needs it”.
When they have to establish probable cause through legitimate means, there is no danger of any of these things happening.
Does an alert now allow a search of any vehicle - vehicles going through a DUI checkpoint, for example - 'yes' or 'no'?
“No, the dog has to find the drugs a bad cop planted in your car first.”
Yep. The cop planted 8,000 matches in the guy’s car.
“When they have to establish probable cause through legitimate means, there is no danger of any of these things happening.”
Of course there is. Consider the case of the ex-marine killed by the Pima County SWAT team. They had a search warrant...based on near nothing, although they had kept family members under surveillance for over 6 months. The SWAT team went to his home when he was asleep - which they knew, since they knew his work schedule - and in seconds went from first knock to busting down the door. And when they saw him with a gun (safety on), they opened fire, shooting over 70 times, with bullets passing thru the house and into other houses nearby. They actually hit him 22 times, IIRC, then kept all medical help away for 90 minutes while he died. The DA here found no cause for action against the SWAT team.
If the system is corrupt, it is corrupt. But a trained dog alerting on a smell isn’t corrupt, and there is no reason to believe the cop planted the 8,000 matches or forced a confession or faked the Miranda rights prior to the confession. The defendant in the case doesn’t claim ANY of that - just that a trained drug dog alerting on a smell isn’t a reason to suspect drugs.
Remember, this is NOT a ‘warrantless search’ case. And they had the right to argue before the trial and during it that the evidence was obtained improperly, and let the jury decide how to weight the evidence. They didn’t do that. Instead, they argued on appeal that a drug dog alerting on a smell doesn’t provide probable cause.
“It would be like the cops being called for a noisy party, they arrive and it is not noisy at all, but they go ahead and search the house while they are there.”
Actually, it would be more like being called for a noisy party, and noticing a couple smoking joints on the front lawn...
Wrong.
There was no visible sign of drug use in the car in this case. If the cops saw him smoking a joint in the car, they would have probable cause without the dog, and they would have probable cause to use a dog to find any hidden drugs in the car.
And you completely dodged commentary about the other case where SCOTUS ruled differently in a similar situation.
1 - To a drug dog, the smell would be as obvious as sight is to a human.
2 - Thermal scans of houses target people. This was a cop with a drug dog who happened to stop a car.
In Kyllo v. United States, the authorities used thermal imagery to specifically target the house owned by someone they already suspected. And since the house wasn’t going to move away, they had time to get a warrant.
Also:
“The majority opinion argued that a person has an expected privacy in his or her home and therefore, the government cannot conduct unreasonable searches, even with technology that does not enter the home.”
You don’t have a reasonable expectation of privacy while driving a car on a public road.
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