in regards to surveillence and search and seizure by the state (sorry, State), how do animals fit in? like drug dogs and all. if drug dogs were easier to train (i know they are not so easy to train), like it was a simple matter of training strays from the a.s.p.c.a., you know?
suppose local police departments set loose droves of dogs with radio collars. drug-or-explosive-sniifin dogs. and the police noted that many of the dogs were all smelling outside the same house or shed.
would the police be allowed to use this information to get a search warrant? or is the noticable evidence, evidence necessary to get a warrant, specifically humanly noticable evidence? like is that why infrared cameras to turn up pot growers necessitate a warrant?
SCOTUS has had recent cases where homes were under surveillance by electronic devices and other non-human means, and has held that such surveillance is an invasion of privacy and the fruit of such surveillance is inadmissible as evidence. To have dogs sniff out evidence around the house to obtain evidence for a search warrant would most likely not be allowed.
SCOTUS has not distinguished between a human spying through an open window and non-human spying. These are all incidents of invasion of privacy. A man’s home is his castle.
Well, a dog sniff of luggage isn’t a search under the fourth amendment (and thus doesn’t require a warrant beforehand), supposedly because it only turns up illegal activity that you have no privacy interest in. If a dog alerts to your luggage, it’s legally obtained evidence that can be used to obtain a warrant they can then use to go through your stuff.
But just sending a pack of dogs off down the street would be a different matter, and U.S. Circuits are split to what degree they can be used on people and places. In 1985 the Second Circuit held that the use of a pot sniffing dog outside of an apartment was a search which would’ve required a prior warrant, since people have greater expectations of privacy in their homes. But in 1989, the D.C. Circuit held a dog sniff outside an Amtrak sleeping compartment wasn’t a search requiring a warrant…and on it goes. 1997, Eighth Circuit says canine sniff of an apartment from outside hallway is not a search, 1993, Tenth Circuit says random dog sniff of vehicles aren’t fouth amendment searches.
So in response to your specific question,
That exact situation hasn’t come up yet, and
If it does, the answer may vary to some degree on what part of the country you’re in.
And possibly
3. Hi Opal!
Oh, and warrantless use of infrared on helicopters to turn up drug growers/manufacturers in homes was declared a search requiring a warrant by the Supreme Court fairly recently.
Actually, strike that: it was thermal imaging from a car parked across the street, not a helicopter. But I’m guessing it would apply to helicopters too.
Well, a week ago I turned a corner very near my house on a narrow road to see a line of cars and a bevy of our city’s finest leaning into windows. I waited my turn, pulled up and asked the officer “what’s the problem?”
Response: License, registration and insurance, please.
Me: (WHILE PROFFERING THE REQUESTED ITEMS!) Who are you looking for?
Joe Cop: Just a routine check.
I realize he would rather be in the donut shop and it wasn’t HIS idea to do an insurance stakeout, so I didn’t break his balls about my rights. But WHAT THE HELL ever happened to probable cause? “We’re stopping you to check your papers to make sure you aren’t breaking the law. If you U-turn or drive past, THAT’S probable cause to suspect you’re breaking the law.”
I’m sure those dogs are waiting in a warehouse somewhere for Ashcroft to pull the trigger.
Postscript: I hadn’t received my current insurance card yet, I handed him an expired one (only by a week). He was so dazzled by hearing a sheep speak out loud that he didn’t even look at it. Ha!
Hmm, rereading your OP, apparently you knew that infrared required a warrant. Okay.
Well, the reason infrared was deemed a search and dog searches may or may not be is due to the greater nature of the intrusion. The infrared is actually (well, not actually, but virtually) looking through the walls of your house. This, coupled with the fact that it’s a device not really in common use outside law enforcement, means that you have a reasonable expectation of privacy in your home that people are probably not using high tech devices to look through your walls.
Personally, while I’m definitely a Law and Order kinda guy the whole ‘courtesy check’ is in my mind totally bullshit. Yeah, they bust a few of the bad guys, but why not just let law enforcement “look around” the house unannounced too?
An automobile should be considered an extension of your home, basically. Yeah, it’s on “public” roads, but so what. I don’t do drugs or drive drunk, but the whole spiel seems pretty bogus to me.
Probable cause is where it should start, and end. Anything else is just smoke and mirrors.
regarding dogs: i think that any police dog must be accompanied by a human officer in the course of it’s duty. (i don’t know where the dogs live, or who is allowed to take them for walks, or what they can do if they happen to lift their leg to a pot-shed.) it would not be kosher to turn a bunch of dogs loose in the city for the purpose of hunting drugs. i’m sure the city pet control bylaws would have something to say about it, at least. of course, it would not be sufficently productive to have canine and human drug officers wandering the streets. they could spend their time more efficiently on other tasks.
regarding road checks: when you break drug laws in your own home, it is unlikely that you will hurt anyone. you can pass out and fall down and the only casualty will be yourself. vive la liberte! however, if you are in control of half a ton of high-velocity steel when your eyes start to droop, there is plently of opportunity to cause mayhem and injury to other citizens of the realm. therefore, it is expedient to find driving drug-law-breakers before they crash.
i think you are free to do what you want in a parked car (as long as you don’t have the keys in the ignition, and you are parked legally). when it’s moving, you have a certain amount of responsibility to others.
Up until recently, it was a not-too-uncommon practice of police departments to use thermal imaging devices on heicopters called “FLIRs”, Forward Looking Infrared Devices, to just fly over residential neighborhoods looking to see who gave off lots of heat from grow lamps or what have you. If you gave off lots of heat, that was probable cause for a warrant. The idea was that you didn’t have a privacy interest in the heat outside the walls of your house. No privacy interest, no “search”; no search, no need for a warrant.
But there was a case that went through the Supreme Court just last year, Kyollo v. U.S., that said that thermal imaging on a home was a search under the fourth amendment. If they’re going to use it to look in (or at) your home with thermal imaging they’re going to need a warrant now. That wouldn’t apply to something like a field or a fenced in backyard, though.
On Monday, NPR ran a report on “using bees to find exposives and other chemical and biological weapons” (see http://search1.npr.org/opt/collections/torched/atc/data_atc/seg_143283.htm for the full report). Since bees “can be quickly trained and are very accurate,” it doen’t seem too much of a stretch to envision bees being used by law enforcement to find drug users. The cops could just set up a hive of bees trained to find marijuana smoke and then look around for the bees hovering around some user’s home.
How the Supreme Court might view this kind of search is something I’ll leave to the legal experts.
I think the Supreme Court got the infrared case wrong, and I’m not afraid to say so.
The Fourth Amendment is only meant to protect legal activity. Unfortunately, the only effective way of enforcing it is to protect illegal activity discovered through illegal searches as a way of disincentivising law enforcement from using illegal searches at all. The crooks who thereby get off get a windfall – they have no right to hide their illegality, they just were fortunate enough to be the handiest shield for the rest of us.
Therefore, the critical question becomes, would the means of information-gathering used detect embarrassing but perfectly legal activity? If so, then it’s a search, and it should be regulated so as to limit the amount of embarrasing things the cops know about innocent citizens. If NOT, then it isn’t a search, because there’s no danger to innocent citizens. The only danger that exists is to criminals, and they have no right whatsoever to keep criminal activity secret.
Therefore, if police dogs are very, very accurate AND the false positives they do get can’t be traced to embarassing but legal materials, then the better view is that there’s no search, because the privacy of innocents is never endangered.
Nonetheless, the fact that the Supremes got this one wrong in the infrared case suggests that they’ll get it wrong if it ever comes up with police dogs, too.
There’s a basic distinction here. You don’t have the right to drive. You only have a driver’s license, in both the lay use of the word and the legal use of the word. Driving is a privilege which a state may grant. SCOTUS has been clear on this point.
By substatique:
<<regarding road checks: when you break drug laws in your own home, it is unlikely that you will hurt anyone. you can pass out and fall down and the only casualty will be yourself. vive la liberte! however, if you are in control of half a ton of high-velocity steel when your eyes start to droop, there is plently of opportunity to cause mayhem and injury to other citizens of the realm. therefore, it is expedient to find driving drug-law-breakers before they crash. >>
Ummm… sub, this was 4:15 in the afternoon on a little street in my neighborhood. I was compelled by the law to show my papers to proceed from my workplace to my house. No drugs, no drinkin’, no probable cause. PROVE you’re not breaking the law, and you can get home from work in the afternoon. What’s next: Sewing a little patch on my sleeve so I can just flash it and pass through the CHECKPOINT? Maybe a tattoo? The cops come to the door and want a peek into the backyard and the attic “as a routine check?”
Fuck that shit. It’s wrong, and it’s illegal. Come see me when I’ve committed a crime. Otherwise, let me go about my business without being detained and forced to prove my innocence to BillyBob.
Can anyone explain to me in what way Ashcroft would not have made a perfect apparatchik in the old Soviet Union? Is there any civil right (except bearing arms) that he actually approves of?
Cliffy, even if the 4th Amendment was only supposed to protect legal activity (which, actually, it isn’t - it’s supposed to protect individuals going about their lives from state interference without good cause. The type of activity is of no moment), by your reasoning, the Supremes still got Kyollo right.
You think an infrared camera couldn’t detect “embarrassing but illegal activity”? I wouldn’t want a cop pointing an infrared camera at my house and not detecting heat lamps but instead detecting myself and another person, horizontal and superimposed, if you catch my drift.
Sorry I’m late to the discussion but hopefully it’s not totally dead yet.
I thought police dogs counted as police officers? If you kill a police dog they will certainly arrest you for killing a police officer.
So, if a dog is a police officer, what is wrong with the dog twigging to some guy walking by it with pot in his pocket? The dog simply has better senses but at the root of it I don’t see how it’s different from a cop seeing you with a bag of weed in your hand.
That said I wouldn’t want the police (humans) scratching around my front door and wiping it down for drug residue anymore than I’d want a police dog to go house to house sniffing at people’s doors. Nevertheless it seems that a police dog patroling with its human partner should absolutely be allowed to point its human to whatever potential threats it spots.
I agree about the random car searches being a horrible breach of the fourth amendment (to my mind and I don’t care what SCOTUS says…I think they’re wrong but unfortunately no one listens to me).
yeah, but what if all car seachers (i.e., cops) had a sniffing dog?
and on top of that, a police officer is supposed to know what his limits are (constitutionally). there is no way a dog is going to keep that in mind.
i guess, to illustrate this point, consider a cop going up to someone he (the cop) suspects of drug dealing. suspects because of a hunch. (hunch meaning no evidence, but a good reason (based on the officer’s senses and neural iterations) or at least an OK reason). by that token, the cop can arrest someone based simply on inference of evidence.
that is, the cop saw no drug-dealing taking place, the cop has no snitched-info on the dealer, etc. if the cop walked up to the suspect and smelled drugs, would he be justified in searching the person?
please notice that this is a grey area, a grey area in which i have not made up my mind. can an officer detain someone simply because the officer thinks they smell say weed? on that person?