Replies

"I keep saying it's constitutional both because it wasn't inconvenient and because there was no legitimate private information discovered from the dog sniff... and you keep ignoring that second half."

The Constitution provides no exception for "if the cops are real sure they'll only find bad stuff". Tell me, if this dog had reacted to beef jerky in this case, and not drugs (which we wouldn't know because this would never have been a case in the first place), would this then be a 4th Amendment violation? They brought in a dog, it reacted to some legal substance, they then searched his vehicle without a warrant and discovered the jerky. Have we violated his rights yet?

"Since the only information that can be gleaned from a plain view search is information that is not covered by a legitimate interest in privacy"

The legitimate interest in privacy covers places, not things. That's why it doesn't matter what you have on the dashboard - it's fair game because it's in a place where you have no expectation of privacy. The roof of your car is fair game. The trunk, when closed, is not.

"If a cop who pulls you over sees a joint on the passenger's seat, he can arrest you for posession, right?"

Yes. The safety issue is, to an extent, irrelevant as you pointed out. The passenger seat, the dashboard, the roof of your car, etc are all in plain view. You simply cannot expect that people will not see what you have there during the normal course of events. Ergo, if you put something illegal on your seat, then it's fair game for a police officer to snatch it and use it against you. However, if you put something under your seat, even if it's an illegal weapon or drug, you do have an expectation of privacy because the location where it is stored is not within plain view. If the cop just decides on a whim with no probable cause to search your car, it doesn't matter what he finds - it can't be used against you in court. Why? Because even though you may not have had a legitimate interest in hiding the object, you do have an expectation of privacy for the location where that object is stored.

"Likewise, the only information that a dog sniff can relate is whether or not illegal contraband is present."

Regardless of the fact that a dog's nose can reveal a great deal of things (certain substances' smells can drive dogs nuts), it is still a search above and beyond what you or I could detect in plain view during the normal course of events. If the smell is too subtle to a human police officer to detect, then it's beyond plain view. Again, I think we need to look at the concepts behind what we have here. If we have a machine which can map out every inch of the inside of your vehicle and alert police to anything that's illegal, is it ok to just run blanket scans on everyone's car? How about everyone's house?

What I also enjoy is how the SCOTUS allows their decision to rest on the infallibility of a dog. I don't know about you, but every dog I've ever had has done goofy things from time to time. I don't recall ever seeing a 'perfect' dog. It's as if these particular animals slowly float down from the heavens to grace us all with their infinite perfection. Seriously though, the SCOTUS here tries to dance around the 4th Amendment to the US Constitution by pretending that absence of evidence (of false positives with trained dogs) is evidence of absence. To me, that seems like they're rolling the dice with our Constitutional rights.

The larger issue, for me however, remains this expansion of plain view searches. I have absolutely no problem with a cop seeing a joint on someone's seat and using it against the driver in court. Where I have a problem is when private locations are searched without knowledge and/or consent, without probable cause and/or a warrant. To me, it doesn't matter what will or will not be discovered in the search - it's the search itself that's a problem.

The Constitution provides no exception for "if the cops are real sure they'll only find bad stuff".

If the cops thought it did they wouldn't have bothered letting a drug dog sniff the car. They would have just opened the trunk themselves, right? So that's not the issue.

Tell me, if this dog had reacted to beef jerky in this case,... What I also enjoy is how the SCOTUS allows their decision to rest on the infallibility of a dog.

This goes back to whether a dog sniff provides probable cause for the search of the trunk... not whether the cops needed probable cause to conduct a dog sniff. Whoa... Deja vu. The court addressed the second, not the first question. Where have I seen this before? The decision (read it) has nothing to do with the fallibility or infallibility of dogs.

The legitimate interest in privacy covers places, not things... The roof of your car is fair game. The trunk, when closed, is not.

And, then... I assume you believe that a wrapped package is not fair game either?

if you put something under your seat, even if it's an illegal weapon or drug, you do have an expectation of privacy because the location where it is stored is not within plain view.

No. Since you don't have the constitutionally protected right to possess an illegal drug, you can't have the constitutionally protected right to hide that illegal drug. The cop can't look under your seat because if he thinks there's a drug under there and he's wrong your privacy has been unnecessarily violated. On the other hand, the cop can let a dog sniff your trunk because if he thinks there's a drug in there and he's wrong your privacy has not been violated.

And don't bother twisting my words. My statement doesn't imply that if a cop's hunch is right, the joint he found in his illegal search should be used against you. To protect the innocent, you must defend the guilty.