Well, there goes the Fourth Amendment; or, Dogs Can't 'Search'

[erislover]

17 01/24/05 03-923 Illinois v. Caballes [warning pdf file]

Routine traffic stop. Cop happens to have a drug-sniffin’ K9 unit within range. “Hey, Joe, why don’t you pop over to this ‘fail to signal’ call I have. I have absolutely no reason to suspect this person of having drugs on them, but what the heck. Maybe we’ll get lucky. I’m about to start writing the ticket, can you be here in three?”

That’s right: dogs sniffing around your car isn’t a search. A positive indicated by that dog is probable cause for a search, though.

Held: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

Let me state right now that I have no problem with the notion that you do not have a reasonable right to protect illegal behavior from inspection. I think that’s a fair notion. Sort of a useless notion, but fair enough. Illegal behavior doesn’t somehow become legal if it is hidden from reasonable search, and one does not have any right to hide illegal activity.

But let’s just say that I don’t think it makes any sense at all to say that a dog smelling around a car doesn’t constitute a search. You’d think that makes me disagree with Place before this, but read on…

From the majority opinion:

Thus, we proceed on theassumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding; accordingly, we have omitted any reference to facts about respondent that might have triggered
a modicum of suspicion.

…[The Illinois Supreme Court] characterized the dog sniff as the cause rather than the consequence of a constitutional violation. In its view, the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and becausethe shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it wasunlawful. In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.

…In United States v. Place, 462 U. S. 696 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as “sui generis” because it “discloses only the presence or absence of narcotics, a contraband item.” … Although respondent argues that the error rates, particularly the existence of false positives, call into question the premise that drug-detection dogs alert only to contraband, the record contains no evidence or findings that support his argument. Moreover, respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk.

My bolding. And my WTF. If the officer just opened the trunk, it would be unreasonable search, because it could reveal private information. But the drug-sniffing dog won’t. So far, that’s totally true. We then take the trial judge and SCOTUS “conclusion” that the sniff does give probable cause for a search. In other words, we’ve nicely sidestepped the little problem of privacy.

Let’s read this opinion for what it means: when a more-or-less infallable agent that is not a police officer indicates to a police officer that illegal activity is taking place, the police officer then has probable cause for a search… even if there was no reason whatsoever for the agent in question to be “sniffing” around! That agent doesn’t need a reason. In this case, it was a dog. But…

SCOTUS has had some words about using infrared scanners to search for dope. Why? --Because such a scan, conducted by a law enforcement officer, could reveal information that was more or less protected from unreasonable search. Like when you are naked, in your bath, having sex, watching television, reading a book, etc. But, hold the phone. Let’s take this conclusion to its logical end. If a computer was doing the scanning, and looking for marijuana-like patterns in the scan, and was not recording the scan, and no law enforcement officer was watching the scan… well, let’s just have the scan give a little sound when it detects marijuana-like signatures. Like, I dunno, a barking sound. Well, there’s probable cause, and the officer walks over and looks at the scanner, which is no longer an unreasonable search. IR vans, here we come? Slippery slope, or obvious conclusion from the ruling?

So now lets just take a beat cop, only make him a K9 unit, with a dog trained to sniff for drugs. Walking down the street, you pass the dog and it starts barking. Maybe it smells the crack in your jacket, maybe it smells the coke on your money, maybe it just fucked up (dogs are fallible creatures, after all). So the cop searches you. No problem! It wasn’t unreasonable, the dog told me to do it. And dogs can’t search. They just, you know, sniff. Not the same thing.

In this case, the dog sniff was performed on the exterior of re-spondent’s car while he was lawfully seized for a traffic violation. Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.

No, the dog didn’t infringe on privacy expectations, if we assume dogs can’t search. But the officer did. How do we get around it? I know! Dog signals can constitute reasonable cause! Whew, dodged that bullet.

Maybe, you say, I’m overreacting. Seems to me that the case pretty clearly demonstrates what constitutes an unreasonable search: one without probable cause that could reveal to the officers private information. Not one that, as such, could reveal private information. Just so long as the–what do we even call it, now?–“non-searchie search” only indicates the presence of illegal activity. Like, you know, automatic monitoring of phone calls trying to detect key phrases. Hey, this machine is nearly infallible, and the cops aren’t listening, so no search was done! Until they do the search of course. With probable cause.

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful
search. Kyllo v. United States, 533 U. S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity—in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning
the nondetection of contraband in the trunk of his car.

My emphasis. Of course, a device specifically designed to only detect a heat-signature of marijuana is incapable of reporting whether someone is taking a bath. You can take a bath and never get caught! They follow that passage up immediately with:

A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

And a van with a scanner driving down the street (cops are allowed to lawfully drive down the street, conceded) that has no display doesn’t constitute a search, either. And when the little light blinks that says, “Bark! Bark!” the cops can now reasonably search. And discover you taking a bath one floor above your favorite plants that may or may not be marijuana.

Justice Souter has a few choice words of his own in the first dissenting opinion. While the good judge does not take it to the hysterical extremes I do, note:

The portent of this very case, however, adds insistence to the call, for an uncritical adherence to Place would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks; if a sniff is not preceded by a seizure subject to Fourth Amendment notice, it escapes Fourth Amendment review entirely unless it is treated as a search.

Souter then goes on to crush the notion that dogs are “good enough for government work”, as the saying goes, by referencing other court cases showing such error rates as high as 8% over the service life of the dog. I don’t know about you, but I think reasonable people would not interpret that as infallibility. One in a hundred? --OK, let’s nitpick semantics. Eight times that?!

Indeed, a study cited by Illinois in this case for the proposition that dog sniffs are “generallyreliable” shows that dogs in artificial testing situationsreturn false positives anywhere from 12.5 to 60% of the time, depending on the length of the search.

You say fallible, I say infallible, eh? The entirely reasonable judge notes,

This is not, of course, to deny that a dog’s reaction may provide reasonable suspicion, or probable cause, to search the container or enclosure; the Fourth Amendment does not demand certainty of success to justify a search for evidence or contraband. The point is simply that the sniff and alert cannot claim the certainty that Place assumed, both in treating the deliberate use of sniffing dogs as sui generis and then taking that characterization as a reason to say they are not searches subject to Fourth Amendment scrutiny.

Quite so, reasonable people would not expect ideal infallibility. The normal kind would be quite good enough.

And here we see that Souter might, in a more reasonable tone, be thinking the same thing as me:

And when that aura of uniqueness disappears, there is no basis in Place’s reasoning, and no good reason otherwise, to ignore the actual function that dog sniffs perform. They are conducted
to obtain information about the contents of private spaces beyond anything that human senses could perceive, even when conventionally enhanced. The information is not provided by independent third parties beyond the reach of constitutional limitations, but gathered by the government’s own officers in order to justify searches of the traditional sort, which may or may not reveal evidence of crime but will disclose anything meant to be kept private in the area searched.

My emphasis. And, need I say, a nicer presentation of my own fears just from reading the damn news clipping that alerted me to this case. Ever the doper, I figured I should go read the case before I start a whole thread on the matter. Having read the majority opinion and Souter’s analysis, I figure it is time to turn it to the peanut gallery.

How far does this case really extend? Will it necessarily be narrowly interpreted to only include dogs, or will the reasoning behind dog searching originally defined in Place and now extended here in Caballes pave the way to slide right into all kinds of non-searchie searches? Often, I take the Bricker position on SCOTUS rulings I don’t like: “reasonable people may disagree.” And I so enjoy reading SCOTUS opinions that I have nothing if not respect for them as reasonable people. But this case makes me say, “Where do we go from here?” Officers, engaging in otherwise lawful activity, can now non-searchie search, at least with dogs (but that’s open to interpretation, if you ask me and Souter), in order to really-search search? Most importantly, do you agree with SCOTUS after hearing Souter’s dissent regarding Place’s reasoning to this case?

Check your turning signals if you love the Fourth Amendment. New bumper sticker.

[kniz]

It seems to me that the “heat imprint” was declared unconstitutional because it could mean someone is taking a shower or that they are growing pot. To equate that with the dogs sniffing around a car, you need to tell me if the dog is just responding to some smell coming from the car or specifically to the scent of illegal drugs. When we returned from Venezuela, there were three agents with a dog as we departed the plane. I didn’t think they were violating my right to privacy, but thought they could have at least had a smile on their faces.

[Bricker]

Not to comment on the merits… but just a quick note that this was a 6-2 decision, with the recognition that had Rhenquist been voting it would have been 7-2. Not a squeaker, in other words.

[erislover]

@Bricker

Not to comment on the merits… but just a quick note that this was a 6-2 decision, with the recognition that had Rhenquist been voting it would have been 7-2. Not a squeaker, in other words.

I meant to mention that. Thanks.

[treis]

@4th Amendment

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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

@erislove

But let’s just say that I don’t think it makes any sense at all to say that a dog smelling around a car doesn’t constitute a search. You’d think that makes me disagree with Place before this, but read on…

It may be a search but you have to show that it is an * unreasonable * one.

@erislove

My bolding. And my WTF. If the officer just opened the trunk, it would be unreasonable search, because it could reveal private information. But the drug-sniffing dog won’t. So far, that’s totally true. We then take the trial judge and SCOTUS “conclusion” that the sniff does give probable cause for a search. In other words, we’ve nicely sidestepped the little problem of privacy.

What problem of privacy? You are driving a car in public on a public road I would hardly constitute that a private activity. There is no reasonable expectation that no one or nothing will walk around your car and glean information from it. The police are no different than any ordinary citizen. I can walk my dog around your car when you are on public property and so can they.

@erislove

Well, there’s probable cause, and the officer walks over and looks at the scanner, which is no longer an unreasonable search. IR vans, here we come? Slippery slope, or obvious conclusion from the ruling?

A little of both but then again in my opinion you don’t have constitutional protection in this case.

[treis]

Hit reply too soon.

@erislover

So now lets just take a beat cop, only make him a K9 unit, with a dog trained to sniff for drugs. Walking down the street, you pass the dog and it starts barking. Maybe it smells the crack in your jacket, maybe it smells the coke on your money, maybe it just fucked up (dogs are fallible creatures, after all). So the cop searches you. No problem! It wasn’t unreasonable, the dog told me to do it. And dogs can’t search. They just, you know, sniff. Not the same thing.

Smelling you is a search now? If a cop smells your perfume do you have an unreasonable search claim? A trained drug dog is that a trained dog they don’t go around giving their signal at random.

@erislover

Maybe, you say, I’m overreacting. Seems to me that the case pretty clearly demonstrates what constitutes an unreasonable search: one without probable cause that could reveal to the officers private information

You are over reacting.

The search had probable cause the drug dog indicated the presence of drugs. A drug dog sniffing your vehicle does not constitute a search.

by referencing other court cases showing such error rates as high as 8% over the service life of the dog. I don’t know about you, but I think reasonable people would not interpret that as infallibility. One in a hundred? --OK, let’s nitpick semantics. Eight times that?!

A 92% chance that you are a criminal is good enough for a quick search it my book.

I for one would like to see increased constitutional protection against searches and a ‘right to privacy’ but the fact is that we don’t have it as of now.

[RaftPeople]

How is this different from a police officer seeing through a window (car, home, etc.) something illegal?

I understand they are going out of their way to bring the k-9 to the scene, but would that be any different than calling for the guy with binoculars to look across the street and into the window?

[erislover]

@treis

There is no reasonable expectation that no one or nothing will walk around your car and glean information from it.

About the contents of my trunk? Maybe if the lady I kidnapped in it was screaming and beating on the lid you’d have something. Do you know how to divine if there are non-screaming, non-pounding drugs in my trunk by just walking around it?

The police are no different than any ordinary citizen.

Actually, they are. Which is why the board admins here are perfectly capable of removing posting privileges without running into the First Amendment.

A little of both but then again in my opinion you don’t have constitutional protection in this case.

Well, you’re in good company.

Smelling you is a search now?

Oh, was that what this case was about? Something in plain… smell?

The search had probable cause the drug dog indicated the presence of drugs.

And what was reasonable about the dog search? Oh, right… dogs smelling around isn’t “searching”. Routine traffic stop.

A 92% chance that you are a criminal is good enough for a quick search it my book.

Quick search? The dog walking around a car is a quick search, in the Souter-indicated sense of “information gathered in order to conduct a search of the more traditional sort.” [paraphrase] Of course, plain view, who could argue. But who could argue that the contents of a trunk are in plain view. How inaccurate would a dog have to be before a “quick search” was unacceptable to you? 75%? 60%? Throw me a bone.

[erislover]

@RaftPeople

How is this different from a police officer seeing through a window (car, home, etc.) something illegal?

Police officers don’t have X-Ray vision.

I understand they are going out of their way to bring the k-9 to the scene, but would that be any different than calling for the guy with binoculars to look across the street and into the window?

Well, binoculars don’t help much when the blinds are drawn.

[treis]

@erislover

About the contents of my trunk? Maybe if the lady I kidnapped in it was screaming and beating on the lid you’d have something. Do you know how to divine if there are non-screaming, non-pounding drugs in my trunk by just walking around it?

Yes I get my handy dandy drug sniffing dog and walk him around it. He signals that you have drugs and I now have probable cause.

@erislover

Actually, they are. Which is why the board admins here are perfectly capable of removing posting privileges without running into the First Amendment.

What I mean is that a police officer can go anywhere Joe Citizen can go and do anything Joe Citizen does without a warrent. (Providing Joe Citizens actions are legal. Also I am painting with a broad brush I am sure you can find a counter-example but walking a dog around a car isn’t one of them)

@erislover

Something in plain… smell ?And what was reasonable about the dog search? Oh, right… dogs smelling around isn’t “searching”.

It did not deprive the person of property nor time and it did not disturb the persons property at all. There is nothing inherently unreasonable about it.

@erislover

Routine traffic stop.Quick search? The dog walking around a car is a quick search, in the Souter-indicated sense of “information gathered in order to conduct a search of the more traditional sort.”

Exactly the intrusive search was justified becuase the dog finding drugs constitutes probable cause.

@erislover

How inaccurate would a dog have to be before a “quick search” was unacceptable to you? 75%? 60%? Throw me a bone.

shrug if the intrusiveness of the search is ‘Sir please pop your trunk’ and a quick 20 second looksee then I would go as low as 15% sucess rate before I would consider it unreasonable.

[alaricthegoth]

And a van with a scanner driving down the street (cops are allowed to lawfully drive down the street, conceded) that has no display doesn’t constitute a search, either. And when the little light blinks that says, “Bark! Bark!” the cops can now reasonably search. And discover you taking a bath one floor above your favorite plants that may or may not be marijuana.

I don’t know nothin’ bout no vans, but I have had a german shepherd stick his lousy nose out of a MOVING police car (that was accross the goddam street fer cryin’ out loud) and bark at me very sternly, most likely on account of my pocket.

I must confess that I never took the phrase “expectation of privacy” to turn on what activity it was that you wanted to keep private. It’s private, that’s why.

Privacy that is subject to parsing is not privacy.

[alaricthegoth]

contrast the New Jersey Supreme Court (bless their mobbed up little hearts…) who held that it was unreasonable and intrusive, hence violating the fourth, to even ASK the question “do you mind if I look in your trunk?” without articulable probable cause.

which, of course, is the correct interpretation. Especially since the second part of the qiuestion is , “if you prefer, we can wait for the dog…”

[erislover]

What we are looking at is not just the reliability of the dogs, however. That would certainly call Place into question. And I think it might be worth revisiting if the other citations are accurate. But we’ve also the scope factor of Terry. Ginsburg, in her dissenting opinion, notes,

In my view, the Court diminishes the Fourth Amendment’s force by abandoning the second Terry inquiry (wasthe police action “reasonably related in scope to the circumstances [justifiying] the [initial] interference”). Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer. Ca-balles—who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit—was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs. Even if the drug sniff is not characterized as a Fourth Amendment “search,” the sniff surely broadened the scope of the traffic-violation-related seizure.

Now this is an interesting question. It was not that a drug-sniffing dog just happened to be looking for a spot to pee, now was it? Ginsburg also goes on to say,

Nor would motorists have constitutional groundsfor complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green.

Still just you walking your dog in the park, treis?

What I mean is that a police officer can go anywhere Joe Citizen can go and do anything Joe Citizen does without a warrent.

Ah, yes. But whose nose smelled the drugs? Joe Citizen’s? The cop’s?

Ginsburg goes on to mention another example of how this ruling “sidesteps” reasonableness:

Today’s decision also undermines this Court’s situation-sensitive balancing of Fourth Amendment interests in other contexts. For example, in Bond v. United States, 529 U. S. 334, 338–339 (2000), the Court held that a bus passenger had an expectation of privacy in a bag placed in an overhead bin and that a police officer’s physical manipulation of the bag constituted an illegal search. If canine drug sniffs are entirely exempt from Fourth Amendmentinspection, a sniff could substitute for an officer’s request to a bus passenger for permission to search his bag, withthis significant difference: The passenger would not havethe option to say “No.”

I believe that is significant. Six Supreme Court justices disagreed, and I should not take the matter up in their court for it. But in this forum, the dissenting opinion is much more compelling.

[enipla]

What if you where just walking down the street, and a dog got a hit on you? Where I live, I’d guess 10-25% of people smoke.

[Largo62]

@erislover

Let’s read this opinion for what it means: when a more-or-less infallable agent that is not a police officer indicates to a police officer that illegal activity is taking place, the police officer then has probable cause for a search… even if there was no reason whatsoever for the agent in question to be “sniffing” around! That agent doesn’t need a reason. In this case, it was a dog. But…

You say the dog is not a police officer, but isnt it so that if you shoot your own dog you are charged with a misdemeanor animal cruelty offense, but if you shoot a police dog you are charged with the felony assault on a police officer? How can they have it both ways? The dog either is or is not a police officer. If it is not an officer the argument that it is just tipping off the human officer to illegal activity calling for a real “search” makes sense. But if the dog is considered an officer in some cases, it should be considered an officer in all. Therefore it’s “sniffing” the car without prior probable cause should constitute an illegal search.

Obviously I’m not a lawyer, but would you deal with this observation?

[Polycarp]

I have a few thoughts, but before I render them, I would very much like to see the observations of the Three Musketeers of Strict Constructionism in GD: Dewey Cheathem Undhow, Bricker, and/or Huerta88. My reason is that I think the decision revolves around what construction you put on “search” in this, and that there are precedents regarding its use, which I’d very much like to hear one of them discuss in this context. My intent is not to be confrontational to them on this one, but to see if my thoughts on interpretation of terminology line up with theirs, before I go off half-cocked on my own views on Constitutional law.

[Duckster]

@kniz

When we returned from Venezuela, there were three agents with a dog as we departed the plane. I didn’t think they were violating my right to privacy, but thought they could have at least had a smile on their faces.

Is the expectation of privacy when arriving in America from an international location different than someone within the US getting stopped for merely speeding?

[Ludovic]

If I had a cheap house and didn’t smoke, which I don’t, I’d be tempted to grow plants in the basement – regular plants, mind you, not illegal ones – just to throw cops off.

Cheap house because once they realized they’d been fooled they might confiscate the house out of spite.

[John_Mace]

@Ludovic

If I had a cheap house and didn’t smoke, which I don’t, I’d be tempted to grow plants in the basement – regular plants, mind you, not illegal ones – just to throw cops off.

Cheap house because once they realized they’d been fooled they might confiscate the house out of spite.

Well, I’m sure glad I don’t live in your town. As much as I might disagee with this ruling, I’d hate to think the cops would be too busy to protect me because you thought it would be clever to distract them.

[mza662]

If the dog is treated as police officer, how is the dog using one of it’s senses any different than a police officer pulling you over and seeing a bag of drugs on your seat? Both are using an available sense, be that hearing, seeing, smelling, to determine probable cause for a full search. Same as if you smelt marijuana, or heard someone in the boot (trunk as you put it in your neck of the woods). I don’t see the problem in this situation, don’t hide drugs and dogs can sniff all they like. The dog was not in the car, only around it. Calling this an invasion of privacy belittles those things which really are an invasion of privacy.