# Warrant-less searches using sniffing dogs : What if items the dog couldn't smell are found?
**URL:** https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410
**Category:** Factual Questions
**Created:** [September 3, 2017, 4:39pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410 "2017-09-03T16:39:14Z")
**Posts on this page:** 20
**Page:** 3
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 4, 2017, 9:47pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/41 "2017-09-04T21:47:07Z")
> [@UltraVires](#):
>
> In addition to Tzigone’s citations, my own experience with different dogs lead me to believe that they all act different.
>
> Some obey because of a pure desire to please the alpha of the pack. Others have a greater desire for the toy or treat. Each dog is different and I can’t exactly cross examine the dog. 🙂
On the topic of cross-examining the dog, a joyous read is an Illinois appellate case, _People v. Lefler_, 689 N.E.2d 1209 (1998).
It’s my favorite for a number of reasons, but the most compelling is the opening sentence. The appeal argues ineffective assistance of counsel at trial, basing the claim on defense counsel’s failure to object as the police officer told the jury not only what the dog did but what it was thinking and how confident it was in the tracking it had done. (Illinois prohibits “bloodhound evidence,” testimony about dogs following a trail.)
The police dog’s name was Cain.
The opening sentence: _This case features the mark of Cain and questions whether counsel was able._
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 4, 2017, 9:50pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/42 "2017-09-04T21:50:22Z")
> [@Tzigone](#):
>
> Well, let’s look at the statistics of tests of accuracy. Please show me tests that have indicated high accuracy. All the ones I’ve seen have at least 30% false positives for searching individuals, but I’ll admit to not searching widely.
>
> [In this one](https://www.livescience.com/9215-police-dogs-sniff-drugs.html) only 44% of positive signals discovered drug paraphernalia. When counting only Hispanic suspect positives, only 27% resulted in paraphernalia found. It’s possible there are minute amount that come from contamination present, but that’s unproven.
>
> [This study](https://www.ncbi.nlm.nih.gov/pubmed/24631776) indicates efficacy varies a lot. Which makes sense, as they don’t train all police dogs at a central location, and as different breeds of dogs have been bred to different purposes. They did well searching rooms (85%+ positive on signaling) but much more poorly in searching cars (58%-65% on positive signaling).
Why do you believe this is insufficient to establish probable cause?
---
### Author:  [@Bill\_Door](https://boards.straightdope.com/u/Bill_Door)
#### Post date: [September 4, 2017, 9:53pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/43 "2017-09-04T21:53:09Z")
> [@Bricker](#):
>
> Why do you believe this is insufficient to establish probable cause?
I’ve got to ask, if less than 50:50 accuracy is required to establish probable cause, then why don’t they just flip a coin? Better accuracy than the dogs, and cheaper to obtain. Why even bother pretending?
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [September 4, 2017, 10:14pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/44 "2017-09-04T22:14:31Z")
> [@Bricker](#):
>
> Why do you believe this is insufficient to establish probable cause?
Because such poor results indicate that it is not a science at all. I’ll bet that one would get similar results by randomly searching cars that police have a hunch contains drugs.
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [September 4, 2017, 10:24pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/45 "2017-09-04T22:24:58Z")
> [@Bill\_Door](#):
>
> I’ve got to ask, if less than 50:50 accuracy is required to establish probable cause, then why don’t they just flip a coin? Better accuracy than the dogs, and cheaper to obtain. Why even bother pretending?
Probable cause is fairly hard to define, but it means just that…is the existence of drugs in the car probable based upon specific and articulable facts? That’s going to certainly be less than 50%, but we try to base that on meaningful, observable factors before we invade someone’s privacy.
So, even though a coin flip has a greater percentage chance, it is arbitrary and not related to the question of whether there are drugs in the vehicle. IOW, not based upon specific and articulable facts. And my argument against the drug dogs (which again is not agreed with by most, if any, courts) is that the science is such that we do not know what the dogs are reacting to enough to grant credence to these “hits.”
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [September 4, 2017, 10:43pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/46 "2017-09-04T22:43:38Z")
> [@Bricker](#):
>
> On the topic of cross-examining the dog, a joyous read is an Illinois appellate case, _People v. Lefler_, 689 N.E.2d 1209 (1998).
>
> It’s my favorite for a number of reasons, but the most compelling is the opening sentence. The appeal argues ineffective assistance of counsel at trial, basing the claim on defense counsel’s failure to object as the police officer told the jury not only what the dog did but what it was thinking and how confident it was in the tracking it had done. (Illinois prohibits “bloodhound evidence,” testimony about dogs following a trail.)
>
> The police dog’s name was Cain.
>
> The opening sentence: _This case features the mark of Cain and questions whether counsel was able._
That was a great read. I hope an appellate court never trashes my trial performance in such a way. 🙂
Plus, kuddos to the State’s attorney who had the cajones to argue that case law that disfavored “bloodhound” evidence did not apply here because the dog was a German Shepherd. If my associate wanted to make that argument, I’m not sure he would still be employed. 🙂
It is also a good illustration of the second Strickland factor.
---
### Author:  [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)
#### Post date: [September 5, 2017, 1:33am UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/47 "2017-09-05T01:33:13Z")
> [@SamuelA](#):
>
> That’s called fighting the hypothetical. I gave a specific example of someone who is innocent of possessing drugs but _happens_ to be guilty of a serious crime that would have been undiscovered if his or her rights were not violated. I wanted to know if “I used an unreliable detector that alerted when the thing it detects was not present” was sufficient for this to be tossed every single time in a probable cause hearing. It seems not.
You’re portraying the victim as an honest fellow … and how his dignity is trampled by a corrupt system … no matter, the search was legal and not in violation of the 4th Amendment (Wikipedia on [“Illinois v. Caballes”](https://en.wikipedia.org/wiki/Illinois_v._Caballes)) …
> [@Clothahump](#):
>
> Paranoia much?
>
> You didn’t state this in your original OP. If the car was going the same pace as accompanying traffic, it would not have been stopped in the first place.
>
> And drug dogs are trained to alert on scent, not on command. Your premise is invalid from start to finish.
Maybe this is in Klan’s-ville, CSA … and the crime is DWB … but I think it’s the 14th Amendment that’s violated when they … well … you know … when they violate the driver’s 14th Amendment rights … if you take what I mean …
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 5, 2017, 4:09am UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/48 "2017-09-05T04:09:30Z")
> [@Bill\_Door](#):
>
> I’ve got to ask, if less than 50:50 accuracy is required to establish probable cause, then why don’t they just flip a coin? Better accuracy than the dogs, and cheaper to obtain. Why even bother pretending?
The articles quoted don’t really speak to “accuracy,” unless you’re equating accuracy with “actually found drugs.” Since drug residue can leave behind scents even if no visible material remains, the dog may accurately alert on a car trunk that contained contraband yesterday but does not now.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 5, 2017, 4:16am UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/49 "2017-09-05T04:16:08Z")
> [@UltraVires](#):
>
> That was a great read. I hope an appellate court never trashes my trial performance in such a way. 🙂
>
> Plus, kuddos to the State’s attorney who had the cajones to argue that case law that disfavored “bloodhound” evidence did not apply here because the dog was a German Shepherd. If my associate wanted to make that argument, I’m not sure he would still be employed. 🙂
>
> It is also a good illustration of the second Strickland factor.
The author, Clyde Keuhn, who has sadly left the bench and returned to private practice, has a brilliant writing style. There’s another of his opinions that absolutely trashes the Batson fiction where the prosecutor gets to offer up a race-neutral explanation for a strike and how courts simply accept whatever is said (“He was dressed shabbily.” “He was overdressed.” “He wouldn’t look me in the eye.” “He stared directly at me.”)
I want to be him when I grow up.
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [September 5, 2017, 4:43am UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/50 "2017-09-05T04:43:55Z")
> [@SamuelA](#):
>
> 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…
It’s not illegal to remove the mattress tag as the mattress consumer.
---
### Author:  [@md2000](https://boards.straightdope.com/u/md2000)
#### Post date: [September 5, 2017, 5:13am UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/51 "2017-09-05T05:13:20Z")
A recent decision I read was where the police pulled over a suspect for some traffic violation, then stalled until the canine unit arrived. The dog found drugs (if I recall the article correctly) but the judge tossed the case. Why? Because you can stop someone for a traffic violation, for the time reasonable to write the citation - but if you detain them longer than that it is an arrest(?) and you need probably cause… and he had no probably cause until after the dog arrived.
---
### Author:  [@madsircool](https://boards.straightdope.com/u/madsircool)
#### Post date: [September 5, 2017, 3:03pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/52 "2017-09-05T15:03:10Z")
> [@UltraVires](#):
>
> Because such poor results indicate that it is not a science at all. I’ll bet that one would get similar results by randomly searching cars that police have a hunch contains drugs.
If I understand correctly, the dog will react to a residual scent; meaning if drugs or guns had recently been in the car. Did the studies control for this?
---
### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [September 5, 2017, 3:22pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/53 "2017-09-05T15:22:00Z")
> [@D\_Anconia](#):
>
> Please provide a cite from a Court.
You want me to track down testimony from TRAFFIC COURT?!
I have sat in traffic court in LA County a few time and have heard a driver justify legal speeding using the BSL. If you choose to disbelieve me that’s fine. I don’t really care because the fact remains I am right and you are wrong and if you did ANY research whatsoever (5 minute google search) you would realize I am right.
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [September 5, 2017, 4:09pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/54 "2017-09-05T16:09:10Z")
> [@md2000](#):
>
> A recent decision I read was where the police pulled over a suspect for some traffic violation, then stalled until the canine unit arrived. The dog found drugs (if I recall the article correctly) but the judge tossed the case. Why? Because you can stop someone for a traffic violation, for the time reasonable to write the citation - but if you detain them longer than that it is an arrest(?) and you need probably cause… and he had no probably cause until after the dog arrived.
It was Rodriguez v. US. [Older thread about it here.](http://boards.straightdope.com/sdmb/showthread.php?t=793347)
---
### Author:  [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)
#### Post date: [September 5, 2017, 4:12pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/55 "2017-09-05T16:12:21Z")
> [@Saint\_Cad](#):
>
> You want me to track down testimony from TRAFFIC COURT?!
> I have sat in traffic court in LA County a few time and have heard a driver justify legal speeding using the BSL. If you choose to disbelieve me that’s fine. I don’t really care because the fact remains I am right and you are wrong and if you did ANY research whatsoever (5 minute google search) you would realize I am right.
[“California Driver Handbook - Laws and Rules of the Road”](https://www.dmv.ca.gov/portal/dmv/detail/pubs/hdbk/speed_limits+)
> [@](#):
>
> California has a “Basic Speed Law.” This law means that you may never drive faster than is safe for current conditions … All [posted] speed limits are based on ideal driving conditions.
Perhaps if you could fill in some of the details of the specific case you’re referencing … what was the posted speed limit, how fast was the driver going, what was the driver’s evidence that his speed was safe, why wasn’t the roadway reviewed by an engineer … what was the judge’s mood at the time? … you might be surprised what a defendant can get away with in traffic court if the judge likes them …
I hope you appreciate our disbelief here … because what you’re saying is the BSL is an adequate defense for any and all speeding tickets … Google is largely absent of any verification outside of lawyer advertisements …
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [September 5, 2017, 4:38pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/56 "2017-09-05T16:38:27Z")
> [@D\_Anconia](#):
>
> That law says you may never drive faster than is safe for current conditions. It does NOT say you can exceed the speed limit.
Not exactly. While the highways in CA have absolute limits (65 in most places, 55 for trailering vehicles, and 70 in less places), on many other roads the limit is the presumed limit. [CA Vehicle Code 22350](http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH§ionNum=22350) states:
> [@](#):
>
> No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.
In [People v. Behjat (2000)](http://helpigotaticket.com/cases/behjat.html), the court ruled that merely exceeding the posted speed limit is not sufficient to sustain a violation of 22350 (CA Basic speed law). From the opinion where a person was cited for travelling at 59mph in a posted 55 mph road:
> [@](#):
>
> The evidence shows only that appellant drove 59 miles per hour. The record, however, contains no evidence supporting a finding that this speed violated the basic speed law. First, it contains no facts suggesting anything or anyone was endangered. Nor does it contain information from which any particular speed could be found to be reasonable or unreasonable. That is, the record does not contain evidence on the weather, visibility, traffic volume, or road conditions when appellant was stopped. Moreover, while the settled statement indicates the People introduced a radar speed survey, which may refer to an engineering and traffic survey under Vehicle Code sections 40802 and 40803, the record neglects to indicate what pertinent information bearing upon the factors listed in Vehicle Code section 22350 the survey may have contained. fn. 4
>
> In light of the foregoing, the record fails to contain substantial evidence supporting the conviction.
With regard to Saint Cad’s mention of the traffic study, this is also supported in CA case law, that to avoid the existence of a speed trap, various requirements around traffic studies exist and without them the prima facie speed limit is more difficult to sustain. See [People v. Earnest](http://helpigotaticket.com/cases/earnest.html):
> [@](#):
>
> It is the People’s burden, as a part of their prima facie case in any Vehicle Code section 22350 prosecution where radar is involved, to demonstrate that a motorist exceeding the posted speed limit was not snared in an illegal speed trap and, unless the People can show that the offense occurred on a “local road,” fn. 2 they must produce a traffic and engineering survey, no more than five years old, that justifies the posted speed limit. (Veh. Code, §§ 40801, 40802, subd. (b), 40803; People v. Goulet (1992) 13 Cal.App.4th Supp. 1, 9 [17 Cal.Rptr.2d 801]; People v. DiFiore (1987) 197 Cal.App.3d Supp. 26, 30 [243 Cal.Rptr. 359]; People v. Peterson (1986) 181 Cal.App.3d Supp. 7, 10 [226 Cal.Rptr. 544]; People v. Flaxman (1977) 74 Cal.App.3d Supp. 16, 22 [141 Cal.Rptr. 799]; People v. Sterritt (1976) 65 Cal.App.3d Supp. 1, 6, fn. 4 [135 Cal.Rptr. 522]; People v. Halopoff (1976) 60 Cal.App.3d Supp. 1, 5 [131 Cal.Rptr. 531].) If the People fail to demonstrate the nonexistence of a speed trap, no evidence as to the vehicle’s speed may be admitted (Veh. Code, § 40803, subd. (a)), the citing officer is not competent to testify (Veh. Code, § 40804), and, if such evidence is admitted, the court has no jurisdiction to convict (Veh. Code, § 40805).
More about speed traps and their discussion in CA at the opinion.
The links to the opinions above are to lawyer’s sites, however if you have access to opinion searches they are available as well. Given that in the first example, the traveling speed of 59 exceeded 55 and the judgment was reversed, I’d say that the basic speed law does say you can exceed the speed limit, if the conditions support it. Here is the [wiki on Prima Facie speed limits](https://en.wikipedia.org/wiki/Speed_limits_in_the_United_States):
> [@](#):
>
> Prima facie
> Most states have absolute speed limits, meaning that a speed in excess of the limit is illegal per se. However, some states have prima facie speed limits.[97] This allows motorists to defend against a speeding charge if it can be proven that the speed was in fact reasonable and prudent.
>
> Speed limits in Texas,[98] Utah,[99] and Rhode Island are prima facie. Some other states have a hybrid system: speed limits may be prima facie up to a certain speed or only on certain roads. For example, speed limits in California up to 55 mph, or 65 mph on highways, are prima facie, and those at or above those speeds are absolute.[100]
>
> A successful prima facie defense is rare. Not only does the burden of proof rest upon the accused, a successful defense may involve expenses well in excess of the cost of a ticket, such as an expert witness. Furthermore, because prima facie defenses must be presented in a court, such a defense is difficult for out-of-town motorists.
---
### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [September 5, 2017, 5:16pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/57 "2017-09-05T17:16:09Z")
> [@watchwolf49](#):
>
> [“California Driver Handbook - Laws and Rules of the Road”](https://www.dmv.ca.gov/portal/dmv/detail/pubs/hdbk/speed_limits+)
>
> Perhaps if you could fill in some of the details of the specific case you’re referencing … what was the posted speed limit, how fast was the driver going, what was the driver’s evidence that his speed was safe, why wasn’t the roadway reviewed by an engineer … what was the judge’s mood at the time? … you might be surprised what a defendant can get away with in traffic court if the judge likes them …
>
> I hope you appreciate our disbelief here … because what you’re saying is the BSL is an adequate defense for any and all speeding tickets … Google is largely absent of any verification outside of lawyer advertisements …
OK here’s one. Driver was headed south on Zelzah Ave. You come over a hill and at the bottom the speed limit changes from 45 to 35 for 2 blocks. None of the road conditions change and it is a well-known speed trap. Driver successfully argued that since no study was done to justify the 10 mph reduction that under the BSL 45 mph was legal there. The judge agreed and dismissed the speeding charge.
---
### Author:  [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)
#### Post date: [September 5, 2017, 5:26pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/58 "2017-09-05T17:26:55Z")
> [@watchwolf49](#):
>
> I hope you appreciate our disbelief here … because what you’re saying is the BSL is an adequate defense for any and all speeding tickets … Google is largely absent of any verification outside of lawyer advertisements …
Too late to ETA:
BSL is not permission to drive however fast you want. California requires drivers to obey prima facie limits (freeways, school zones, work areas, etc.) The major difference is that for a city street to be a prima facie limit, it must be justified by a traffic study. This works both ways. A person driving 45 in a 45 zone in a fog would be cited for driving at an unsafe speed. Likewise someone doing 80. The legal point of California’s BSL is under those conditions it is up to the officer’s and judge’s judgement if it is unsafe. In many cases I’m sure the judge would agree that the posted speed limit is highly suggestive of safe driving speed but speed limits are not legally binding on the judge\*. So in the example I gave, the BSL would give permission to speed (within limits) if for example going through a speed trap.
\*Whereas prima facie speed limits are.
Also: Bone I owe you a beer.
---
### Author:  [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)
#### Post date: [September 5, 2017, 5:39pm UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/59 "2017-09-05T17:39:39Z")
> [@Saint\_Cad](#):
>
> OK here’s one. Driver was headed south on Zelzah Ave. You come over a hill and at the bottom the speed limit changes from 45 to 35 for 2 blocks. None of the road conditions change **and it is a well-known speed trap**. Driver successfully argued that since no study was done to justify the 10 mph reduction that under the BSL 45 mph was legal there. The judge agreed and dismissed the speeding charge.
Emphasis mine
Ah, I see now … in cases of systemic municipal corruption one is allowed to drive as fast as the engineering report says … makes sense …
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [September 6, 2017, 3:35am UTC](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410/60 "2017-09-06T03:35:16Z")
> [@Bricker](#):
>
> The articles quoted don’t really speak to “accuracy,” unless you’re equating accuracy with “actually found drugs.” Since drug residue can leave behind scents even if no visible material remains, the dog may accurately alert on a car trunk that contained contraband yesterday but does not now.
If I carry around a dowsing rod and find water 44% of the time, will you accept that the 56% of the time I didn’t find water my explanation of “huh, it must have rained here recently”?
You see my point. No scientific method gets to assume away its misses without proof. Have there been any double blind studies to measure the efficacy of dog sniffs? I believe there have been and they have failed miserably at those as well.
[Previous page](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410.md?page=2)
[Next page](https://boards.straightdope.com/t/warrant-less-searches-using-sniffing-dogs-what-if-items-the-dog-couldnt-smell-are-found/795410.md?page=4)