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.'"
Held:Where, as here, the Government uses a device that is not in general
public use, to explore details of a private home that would previously
have been unknowable without physical intrusion, the surveillance
is a Fourth Amendment “search,” and is presumptively unreasonable
without a warrant.
http://supreme.justia.com/cases/federal/us/533/27/case.html
“In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner’s home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex.”
Horsecrap.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
Effects covers automobiles:
“Papers” encompass personal items, such as letters and diaries, as well as impersonal business records. “Effects” encompass all other items not constituting “houses” or “papers,” such as clothing, furnishings, automobiles, luggage, etc. The term is less inclusive than “property”; thus, an open field is not an effect.
And drug-sniffing dogs are also not in general public use, last I checked. SCOTUS contradicted its own precedent with this recent ruling.
And drug-sniffing dogs are also not in general public use, last I checked. SCOTUS contradicted its own precedent with this recent ruling.
“Effects covers automobiles”
No, it does not - not when you are driving down the road. However, you might be correct if your car is parked in your garage.
https://en.wikipedia.org/wiki/Motor_vehicle_exception
And even your own link requires probable cause for a search. Using a drug sniffing dog is a search, plain and simple. The dog should not be used unless there has been probable cause from other means, such as observing the driving smoking pot.
The lack of a response here is quite telling.
“Does an alert now allow a search of any vehicle - vehicles going through a DUI checkpoint, for example - ‘yes’ or ‘no’?”
If a drug dog happens to be there, and it alerts on a vehicle going thru a checkpoint, then yes - there may well be enough probable cause for a search. The threshold for searching a vehicle is low.
Remember, this is NOT a case about warrantless searches of cars. It is a case involving probable cause: would a reasonable person, if they see a drug dog alert on a vehicle, suspect drugs are inside?
The standard is very different for a house, or for a person sitting inside the car.
In most jurisdictions the dogs are considered to be police officers, theoretically if you harm one it is the same as if you had harmed an officer.
Contrast that with the idea if an officer harms a civilian’s dog it is considered property- usually of little or no value, instead of considering the dog as a member of the family.
Wrong. The dog itself is a search method. Probable cause to use the dog should come from elsewhere.
Why are dogs routinely used in search and rescue missions?
Because search and rescue missions aren't usually performed with the aim of depriving someone of life, liberty, or property.
Dogs are used in search and rescue missions because of their acute sense of smell, in fact positively affecting a persons life, liberty and property.
A dog is not a method.
Bottom line: the courts disagree with you. The Supreme Court disagrees 9-0. It isn’t close.
Besides:
“Officer Wheetley pulled over respondent Harris for a routine traffic stop. Observing Harris’s nervousness and an open beer can...”
“It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a passenger in or on a vehicle being operated in the state.”
http://www.flsenate.gov/Laws/Statutes/2011/316.1936
Why are dogs routinely used in search and rescue missions?
In search and rescue missions, false positives don't generally trigger violations of privacy rights.
How many false positives have triggered violations of privacy rights? Are there credible statistics to which you can point?
Every single one of them, by definitions of the terms.
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