It brings up another question. Suppose a drug dog is trained to smell cocaine, heroin, and marijuana. The dog has a training certificate and was tested, etc.
Suppose that Joe Q Public was driving a touch over the speed limit and is pulled over. Joe has out of state plates or is black. The officer asks permission to search the car, and is denied.
So the officer has a drug dog, and he has the dog sniff around the car. When the dog is out of view of the dash cam, it ‘alerts’ to the presence of illegal drugs in the car.
The officer and his buddies then search the car. They don’t find any illegal drugs, but they do find a gun with too large a magazine for the state it is in (making it illegal), stashed under the passenger seat. At trial, the police crime lab reports that they were unable to find any detectable quantity of the 3 illegal drugs the dog was trained on.
What I’m wonder about is : can the police use a dog as a pretext to search any car they like, anytime they like, and if they find something illegal the dog wasn’t trained to detect, if the evidence is permitted by the judiciary.
That fourth amendment is a fig leaf if just anyone can be searched whenever if police can just subtly tell their K9 buddy they want to search a vehicle, and the judges in appeals courts allow it.
Can you clarify the condition “anytime they like” … your example involves the driver who was speeding, which is a traffic violation and not a pretext … you also seem to imply that the dog was sniffing outside the vehicle, and alarmed on the odors emanating from said vehicle …
Is gross misconduct by the police officer demonstrated at trial? … the evidence would be thrown out …
The driver was going the same speed as traffic…which is speeding in nearly all states and all roads in the U.S.
The lab showed after the fact that those odors didn’t exist because the things the dog was trained to detect weren’t in the vehicle. The reason the dog alerted is his handler wanted him to.
My point was that the combination of “basically 100% of drivers are in technical violation of at least 1 traffic law at all times” and “you can make a drug dog alert whenever you like and that’s considered probable cause” means that anyone can be searched at any time. Thus, like I said, making the fourth amendment something of a fig leaf.
The justification for the search is determined at the time the search began. It matters not if the officer was, after the fact, right or wrong in his belief that there were drugs in the car. The question for the judge is: At the initiation of the search, did the officer have probable cause to believe that there were drugs in the car?
If yes, then the search is legal and anything found is admissible (illegal guns, dead bodies, drugs, etc.).
I am convinced that drug sniffing dogs are junk science and respond to subtle (not intentional) hints from their handlers. However, courts approve of their use and as long as the proper procedures were followed, a “hit” from a dog will support probable cause.
Another part of this is the police officer’s testimony at trial … when asked, does the officer speak truthfully and say the dog didn’t smell drugs but simply alarmed on command? … or does the officer lie while under oath? …
I guess the answer to your question is “Yes” … when corrupt LEO’s and judges themselves are in gross violation of the law, then our Constitutional rights are meaningless …
If in fact officers can search anyone at any time without probable cause and get away with it, using a common and accepted pretext, and this is permissible by the honorable federal judges who are the final check on this, then yes, this part of the law is in fact bullshit. This doesn’t condemn all law, just in the case of motor vehicles, the hypothetical ‘right’ against unreasonable searches doesn’t appear to mean much in practice.
My question was if those same federal judges were throwing out cases where the dog ‘alerted’ to something that didn’t exist.
Tests on police dogs and their handlers have shown that the dogs will alert on things based on their handler’s perceptions, *i.e., *if, during a test, the handler is told that boxes with a certain mark on them hide a drug sample, the dog will probably alert whether there’s a drug sample or not because the handler thinks there is one, and they will probably not alert on boxes that have samples if they don’t have the mark. I don’t remember how they did the tests to figure out that dogs will alert based on their handler’s racial bias, but what this boils down to is, the dog is going to alert if the handler wants him to, whether the handler realizes he wants the dog to alert or not. So the officer doesn’t have to lie, he just needs to be a jerk, and the dog just thinks he’s doing the good thing.
Exactly. The officer could act more tense around black people and people from out of town, and ‘mysteriously’ the dog always alerts whenever it is brought out. Then, it’s just a licensed fishing expedition it appears. “Oh, look, here’s an expired driver’s license you didn’t destroy. Oh, here’s a pipe that has the faintest residue of an illicit substance. Oh, what do we have here…a sum of cash. Looks like we’ll be confiscating this…”
Maybe not everyone can be found guilty of something, but probably the majority of us have at least one thing illegal, even if it’s a mattress with the tag ripped off…
No you really aren’t asking questions you are pontificating. The obvious answer is of course judges throw out searches daily. That’s why there are court proceedings and pretrial hearings. Probable cause hearings are often much tougher than the actual trial. If the probable cause for the search is bad the proceeds of the search are thrown out. Happens all the time. If the probable cause is found to be justified then what is found is not thrown out.
This sounds more like a legislative issue … the written law is wrong in that it allows drug-sniffing dogs to produce probable cause …
Now we have the OP’s scenario where we have a lawful traffic stop (he was speeding) and a drug-sniffing dog up and alerting without any “bogus” command from the police officer … under the seat is certainly a place to look for drugs and bingo there’s the sawed-off shotgun … then I think UltraVires comments apply, included the ones about bullshit science (see above) …
I guess the 4th Amendment is conditional on following traffic regulations in communities that can afford equipping all their police officers with drug-sniffing dogs … it would be cheaper to just plant the drugs in the car in the first place, the officer can claim he smelled pot smoke so he searched the car … easy peasy …
Hell, the driver doesn’t even have to have been speeding. The cop can say he observed the driver speeding. And he can say the dog alerted. And he can say he saw a white powdery substance in plane view through the living room window. And he can say you confessed to murder. A cop willing to lie can do a lot of damage. That doesn’t mean “our constitutional rights are meaningless.”
in southern CA its not written but if your going 5 to 10 mph under what everyone else is on the freeways you can get a warning for “dangerously clogging up the freeways”… and a ticket if its during rush hours which is about 3 to 9 am and pm
100% of the time they will take in all the facts available and make a ruling based on that. Whether or not what was looked for originally is irrelevant. The cop might be looking for marijuana and find marijuana and the judge can find there was no probable cause and throw out the evidence as fruit of the poisonous tree. The cop could be looking for marijuana and find a severed head instead and the judge finds there was probable cause. You seem to think there is one factor you can break cases down by but it’s not true. The same outcome doesn’t mean the circumstances are at all the same.