Why just the other day I saw some guy stoned out of his mind walking down the street. He was just shakin his head pretending to mind his own business but I know he secretly wished to konk me over the head and drag me off to his secret lair where he would force feed me hash brownies and fritos for 2 weeks. I wish I had some cops around me then!
Maybe we should let the cops pay attention to violent criminals, and let victimless criminals be.
[Note to lawyers: neither this nor my other post is advising currently disobeying drug or any other laws.]
For that matter, you could force the trunk open with a crowbar and you’d have probable cause. The point is, neither action is equivalent to “just walking around the car” or “looking in a window” or the like. What’s at issue is whether the action you’re taking to get to “probable cause” is itself a search.
I have argued before on these boards that drug dogs ought to be subject to scrutiny under the 6th Amendment.
In my opinion, a drug dog’s bark is hearsay, pure and simple. It is a non-verbal communication which in effect says “Hey! There’s drugs in there!” In legal parlance, it is an “out-of-court statement offered to prove the truth of the matter asserted.” Hearsay. Actually even more unreliable than hearsay, because we don’t really know what a dog means to say. He might be saying “I smell drugs in there,” or he might be saying “My handler seems excited, so I’m getting excited, too!”
Now if this were a human witness, you’d have a right to cross examine him under the 6th Amendment. And if he weren’t capable of being cross-examined, his testimony would be inadmissible (barring an exception to the hearsay rule).
But of course, you can’t ask the drug dog: “Now Rover, did you smell drugs in my client’s pocket, or were you reacting to the ham sandwich he was eating? And isn’t it true that sometimes you just get excited and bark for no good reason? And does the police officer who controls you ever give you non-verbal cues which cause you to alert?”
So a drug dog neatly evades a citizen’s 6th Amendment right to confront witnesses.
A finding of ‘probable cause’ may rest upon evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327. *108
‘There is a large difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.’ Thus hearsay may be the basis for issuance of the warrant ‘so long as there * * * (is) a substantial basis for crediting the hearsay.’ Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, Jones v. United States, supra, 362 U.S., at 272, 80 S.Ct., at 736.
I think those of us who cherish the 4th Amendment are going to have to rely more and more upon similar provisions in state constitutions, in the hope that state courts will interpret those constitutions so as to restrict unreasonable searches and seizures. (State constititions may be read to provide greater protections than the federal constitution.)
(Do you have a cite for that New Jersey decision, by the way? I’d like to read it.)
Point well made, Hamlet. I suppose that even if a drug dog’s alert were regarded as hearsay it wouldn’t help you in a “probable cause” setting. Though we might want to think about whether that should be the case. Should we allow hearsay from a witness who is utterly immune from cross-examination at trial to be a basis for a “probable cause” search?
(Good thing I’m not a criminal lawyer, and don’t have to know this stuff.)
Even setting aside the fact that hearsay is not per se inadmissible in suppression and PC hearings, the dog’s bark is not hearsay because it’s not offered for the truth of the matter asserted in the “statement.”
The dog’s bark says, “There are drug in here!” But the finder of fact isn’t asked to conclude that there are or are not drugs present. Instead, the testimony goes to what the “statement” - the bark - caused the officer to think or do. The officer is concedely relying on the “hearsay” of the bark; by the time we reach a suppression hearing, the fact of the bark is offered only to show that the officer had probable cause to search.
In the same way, picture a citizen informant who stops an officer on the street and says, “Hey, that car across the street has bags of coke, machine guns, and a dead body in the trunk.” At the suppression hearing, that statement is related by the officer NOT to prove the truth of the matter asserted - that there are fruits of crime in the trunk - but rather to explain his cause for the search.
Back in a bit to discuss the Fourth Amendment issues…
Seems to me there’s a difference. If I falsely accuse someone of a crime, I may face civil or criminal penalties, which adds a layer of reliability to hearsay statements in this context. On the other hand, a dog that falsely alerts faces no penalty.
Moreover, we still have the problem that we don’t know with certainty what the dog is “saying.” Is the dog saying “I smell drugs,” or is he saying “I sense that my handler wants me to alert, so here I go?” No way of knowing with certainty. At least not enough certainty to make me comfortable. (Note the 8% false alert figure above. I’d bet the actual figure is even higher. We don’t know how many falsely alerting dogs get lucky, for example, and alert for the wrong reason on someone who happens to have contraband. And I’m betting false alerts are underreported.)
In my view Place mandates the conclusion reached by the Court in the current case. The driver was not subjected to any additional detention or restrictions on his liberty beyond those that flowed from the traffic violation. Place clearly holds that a “sniff test” by a well-trained narcotics detection dog is not a “search” within the meaning of the Fourth Amendment.
Mr. Caballes has no room to complain.
Now, some in this thread argue that the rate of error for drug dogs is high enough that the conclusion in Place is unwarrented. The record of the current case has no such findings. And for the record, the threshhold of “probable cause” is low – probable cause means simply that it’s likely a crime has been committed. An error rate of 8% for dogs falls well within the realm of “likely” or “probable.” Even an error rate of 30% would fall within “probable” - if the dog is right 70% of the time, then it’s PROBABLE he’s correct, right?
In her dissent, Justice Ginsburg claims: “A drug-detection dog is an intimidating animal. … 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.”
While the “character” of the stop may indeed change, the record here reflects the finding that the traffic stop did NOT become longer. The dog does nothing intended to intimidate the motorist. His handler walks him around the car - a procedure lasting less than one minute.
Is the expectation of privacy when arriving in America from an international location different than someone within the US getting stopped for merely speeding?
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Yes. Countries have the power to search at border crossings. The Fourth Amendment does not protect you from a search to enforce Customs regulations at an entry point (and for a few miles beyond it). Customs agents can’t come up to you in Ames, Iowa, and search you for no reason; they can search you for no reason when you’re crossing into the US from Tijuana.
True. But we’re not talking about reliable hearsay - we’re not talking about hearsay at all, since the “statement” is not offered for the truth.
At its core, the question is not about hearsay at all - it is whether a dog’s alert establishes probable cause. That is, when a well-trained dog alerts, is it PROBABLE that there are drugs present. If the error rate is 8% or even 30%, it’s PROBABLE that there are drugs present.
Bricker, that seems an awfully, well, “legalistic” approach to the debate. Do you not see the potential for a problem? If I am one of the innocent 30% who has his belongings rifled (I like that number, since I’d bet it’s about right) have I no cause for complaint? After being pulled over and losing a few hours of your life to such a search, would you salute the officer for his diligence and happily go on your way, or would you be mad as hell about it?
And given even an 8% error rate, do we really want to give police free rein to conduct searches based on dog alerts?
Stop focusing so much on what the law is (we know that) and let’s talk about what the law should be.
Following Ginsburg’s slippery slope, do you feel that it’s equally legal under the fourth amendment for police, following the authority of this ruling, to circle every single car stopped at every red light, all day long, and search any cars at which the dogs barked? Or just randomly walk drug dogs through crowded city sidewalks and search any pedestrian the dog indicates?
Doesn’t this make it possible for any officer with a police dog to search pretty much any one he wants to without probable cause. I bet it’s not difficult to train a german shepard to bark on command.
I think that’s a valid fear. I think even without consciously training a dog for this, a dog tends to pick up on a police officer’s (perhaps unconscious) cues that an alert is desired.
I’m with Bricker (with one exception). IMO, the 4th Amendment is meant to protect people from having their potentially embarassing but legal activity publicly known, or known by the State. If an investigative procedure would never or almost never reveal embarassing legal activity, then it isn’t a search under the 4th Amendment. On the record of the present case, it seems, there’s no real fear of such an outcome. Ergo, I think the decision is the correct one.
That said, I’m going to ask for a cite that “probable cause” means anything greater than 50%. I don’t believe it’s that well defined in the law, and I also don’t believe that the word “probable” in ordinary usage actually means that (although it may be a technically accurate definition, that’s not what the word means when it is used).
For example, if the dogs in question were bomb-sniffing dogs, I’d be perfectly content.
Well, I could support legislation limiting the ability of police to conduct mass dog sweeps. But this thread focused - I thought - on whether the tactic offended the Constitution. It does not. Whether we should pass laws curtailing polic use of the tactic I’d say is a fair question, and if it appeared that there were pervasive abuses of the tactic I’d be all for it.
The Supreme Court has ruled, so you’re right. Not much to debate there.
This debate, as I understand it, is about whether such a search ought to be considered an offense to the Constitution. (In other words, whether the Supreme Court’s view is ill-considered.)
I don’t claim it’s a fity-fifty proposition, although I think it’s beyond cavil that a 92% chance of being right - or even a 70% chance - would satisfy probable cause.
In Virginia: “Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense likely [has] been or is being committed.” Saunders v. Commonwealth, 218 Va. 294, 237 S.E.2d 150 (1977).
Why do you say that? Couldn’t a dog’s false alert cause the revelation of potentially embarrassing (but legal) things in the trunk of your car? S&M gear, for example.