Ignore that last post. I misunderstood what you were saying.
Yes, spoke, it could. The question, then, is whether 8% falls into the category of “almost never.” But from the skimming of the OP that I did, it seems that there wasn’t any evidence on the record here about the false positives.
–Cliffy
I think Bill “it depends what the definition of ‘is’ is” Clinton just lost his sophistry crown.
The dog isn’t searching the car, nor is the officer holding the dog. The dog is reacting to something coming from the car and his action gives the officer probable cause.
It is analagous to a police officer going by a house and hearing a gunshot from inside. This gives the officer probable cause to enter the house where there might be all sorts of embarassing but legal things going on.
The never-ending battle against ignorance moves to the mathematical front.
An 8% error rate means that the dog is wrong 8% of the time. Unfortunately, the original cite didn’t specify which type of error (false positive or false negative), though the context (questioning the legitimacy of dog alerts as sufficient probable cause) implies the former. For our purposes, we’ll assume that both error rates are 8%.
Your notion that “8% error rate” corresponds to “92% probability of guilt if the dog fingers you” is true if and only if the test population includes an equal number of drug carriers and drug non-carriers. Obviously, this is just not the case even in bad neighborhoods.
Using a more realistic number (1 in 100 actually carrying), a scan of 10000 targets (100 actually carrying drugs, 9900 without) will yield:
True Negatives (no drugs, no detection): 9108
True Positives (has drugs, detected): 92
False Negatives (has drugs, no detection): 8
False Positives (no drugs, detected): 792
We see that the probability that a person searched on the basis if the dog’s testimony is not 92% – it is, instead, only 10%.
I view this as the key issue – the police are taking specific measures to target someone for scrutiny for no individual reason.
As I noted when the IR scanner issue was discussed here, if a cop had been bitten by a radioactive dog and gained the dog’s sense of smell, my reasoning would be different – in that case, the odor would be something that just happened upon the cop’s attention without his stir (outside what he does anyway).
On a bit of a tangent, I expect that if police become overzealous in utilizing their newly-delineated power, we may see some added impetus for decriminalization of marijuana. There are a lot of hypocrites out there. And lawmakers with family members who might take a toke now and again.
But this raises another concern: selective use of this procedure. I’m betting they won’t call out the drug-sniffing dogs when the wealthy and powerful get pulled over.
Joe Citizen can require you to keep your car in place while he gets his dog, if that notion pops into his mind?
Geez, and you thought traffic jams were bad now…
10% < 15% 
And no car search in history has ever been as short as 20 seconds. Police can take hours going through your things.
Funny, that’s exactly what I think of the authorities spending time chasing down The Demon Weed With Roots In Hell[tm] when Western Civilization is faced with a serious threat of barbarian disruption.
I have no idea how that fits into our discussion.
I couldn’t agree with you more. But how does diverting the cops’ attention into ADDITIONAL worthless activities improve things? You also have to recognize that the cops don’t make the laws, they enforce them. I’d suggest directing your energies at lawmakers and judges-- ie, the source of the problem.
I really don’t understand why you would continue to rationalize a response like your first one. There’s nothing wrong with admitting a mistake.
I’m frankly surprised that you fell into the mathematical fallacy I debunked in my earlier message. You’re usually sharper than that.
A Supreme Court Justice’s image of “the police” is that of extremely respectful and deferential professionals who helpfully escort them on their travels. If that doesn’t have some influence on their decisions, they are not human.
I doubt that very much – they read litereally hundreds of briefs every year which describe horrible police conduct.
–Cliffy
From what I can tell, they are only discussing false positives. The study cited in the case itself is mentioned by Souter:
In the extreme case, a fair coin is better grounds for a search than the dog! :eek: It would be hard to obtain reliable field data on false negatives, for reasons that should be clear. But the study is available for reading here. (“Duty cycle of the detection dog: A baseline study.” First on list.) They show a few charts indicating dog reliability over time in terms of the number of hits. The results show that the hit rate is fairly constant over time. More interesting, though, is the ratio of false alarms to number of searches, figure 3 in the paper, page 18, which shows a smallest quantity of 12.5% (that only got worse as time went on in 30 minute intervals). Whoops! Figure 7 (p 22) has a similar chart.
Bricker, it is interesting that you think this follows directly from Place. In Place, there was reason to suspect narcotics. An airline traveller with suspiciously marked luggage was found, the DEA at the arriving airport was alerted, and the luggage was siezed for a dog sniff. Indeed, in Place, I note this important paragraph:
I could hardly argue with that. But that a person possesses drugs is not a reasonable inference from being stopped for speeding as in our present case. Worse than that, the current case suggests that there is really no reason not to have a dog search. Hardly obvious from my reading of the majority opinion in Place. It is noted, however, that “The purpose for which respondent’s luggage was seized, of course, was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent’s luggage for the purpose of subjecting it to the sniff test - no matter how brief - could not be justified on less than probable cause.” After discussing the Fourth Amendent for a paragraph, they conclude, in section II, “Therefore, we conclude that the particular course of investigation that the agents intended to pursue here - exposure of respondent’s luggage, which was located in a public place, to a trained canine - did not constitute a ‘search’ within the meaning of the Fourth Amendment.” Now, IANAL, but that’s a fairly narrow conclusion: the particular course of investigation the agents intended to pursue [there]. That there was suspicion of narcotics was already there, given the circumstances. That’s why the DEA was alerted!
But as I am not a lawyer, perhaps you can assist me with what, precisely, was held in Place.
Does this mean the three are to be read independently, or does this mean the three are meant to be read together? That is, does Place hold that a sniff is not a search per se (b), or does it hold that a sniff is not a search when Terry requirements are met (a, c)? My reading would seem to be the latter, but you would have a more authoritative view, so please advise. In looking at Terry, it would seem that they should all be held together.
In any event, the issue raised is also one of Terry. In that case, the Chief Justice noted,
[My emphasis.]A traffic stop is a scope, I trust you’d agree. Now, what does a dog sniff have to do with a traffic stop? Do you find Ginsburg’s mention of Terry worth considering at all?
I don’t know, actually.
Well, it was my paraphrase that said “an agent that isn’t a police officer”, meaning a human being that cannot help but invade privacy in searching, not “anything that is treated in some way as a police officer.” A dog sniff, says SCOTUS, doesn’t reveal anything you have “a right to hide.” Ergo, not a search as pertains to the 4th. Whether the dog is or is not treated in some ways as an officer isn’t actually important, as I read it. In my hypothetical IR-scanner-without-display, an officer could be running it or it could be totally automated. The critical part for SCOTUS was the apparently unique case of a dog that can “search” without revealing information you are allowed to conceal. Even a slight bit of imagination shows that dogs are hardly unique in this respect at all, something I figured they’d catch. Which means they probably intend for this to pave the way for a slippery slope.
But then, some say I’m paranoid.
But the key element is simply that the person was lawfully detained. The scope and length of the detention depend upon the reasonable, articulable suspicion that motivate the detention, to be sure.
In general, each statement may be read separately. But what you’re quoting are the headnotes – the real answer to your question is within the full context of the opinion.
As I read Place - consistent with today’s Court’s reading - a sniff is not a search, period. Obviously, even a sniff is not practical unless you have been seized in some other way. In fact, you could easily make the argument that if you’re standing about, minding your own business, and a drug dog bounds up to you and starts sniffing, you would not feel free to leave and go about your business, so you would have been illegally seized at that instant and the fruits of any future dog alerts would be inadmissible.
But that’s not the case in the instant. Here, the car and passenger were lawfully stopped. The dog sniff did not extend the length of the car stop. Applying Place to those facts is a no-brainer.
- Rick
As ever, Bricker, I appreciate your input in these matters. Allow me to humbly pick your brain a little more.
In Place, it was certainly held that the siezure in question went outside of reason, because of the indeterminacy of the seizure and the time involved. That’s one thing. But in the passage I quoted, it seems that the conclusion of Place was that, though the dog sniff wasn’t a search in terms of the 4th, the sniff was warranted because of the circumstances in the first place; that is, taking the two prongs of Terry, the original temporary seizure for a dog sniff was reasonable, but while the “scope” aspect of Terry was right, the time frame was off. In our present case, the time frame is right, but the scope is off.
It’s this quote that leads me to question the current ruling as following directly from Place:
Now, we could read this two ways. One would be the erl way, which is that, regardless of whether the dog sniff constitutes a search as per the 4th, the purpose of a dog sniff is to find drugs: in Place, drugs were precisely what was in question, while in this case, going six miles an hour over the speed limit is what was in question, so in this case a dog sniff, whether or not it is a “search” in the 4th amendment sense, is still outside the scope of the seizure a la Terry, and so shouldn’t be allowed. Maybe we should call it the Ginsburg reading since it is precisely this point which she mentions. The other reading would be the majority opinion, or the Bricker reading, which says that since the dog sniff is not a search WRT the 4th, it can be used whenever, just like a “plain view” detection.
In your personal opinion, do you think this paves the way for something like a non-searching auto-detection IR machine, the hypothetical I mention in the OP? If not, what precludes this interpretation?
In fact, that’s why I quoted the headnotes, because the full context of the opinion seems to be in line with Terry, not outside of it.
Except that if you tried to walk away from the sniffing dog, the police would “reasonably” seize you anyway… after all, since the sniff isn’t a search, why are you trying to hide from a non-search? Must be somethin’ fishy there!
Still not seeing that it is a no-brainer unless we look only at the headnotes, and read them individually.
Upon reflection, it seems to me that the Supreme Court decided this case with one eye on the “War on Terror.” That would explain the otherwise surprising 6-2 majority. I’m sure the Court envisions a future case where explosives are sniffed out in a similar setting.