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

[Spoke]

…And looking at footnote 7 in Souter’s dissent, I see that he suggests a distinction between a dog sniffing for drugs and a dog sniffing for explosives:

I should take care myself to reserve judgment about a possible case significantly unlike this one. All of us are concerned not to prejudge a claim of authority to detect explosives and dangerous chemical or biological weapons that might be carried out by a terrorist who prompts no individualized suspicion. Suffice it to say here that what is a reasonable search depends in part on demonstrated risk. Unreasonable sniff searches for marijuana are not necessarily unreasonable sniff searches for destructive or deadly material if suicide bombs are a societal risk.

That seems to me a reasonable distinction to draw, and I wish the court had followed Souter’s lead on this. However, I do wonder whether such a distinction is practical in the real world of law enforcement. Are there any dogs which are trained to sniff both drugs and explosives? And if so, how would you tell whether the dog was alerting for drugs or alerting for a bomb, so as to determine whether a further search would be permissible under Souter’s suggested standard?

[erislover]

Brciker, if you do intend to respond, I’d request that you hold off a bit. I’m reading through Kyllo v. United States right now which addresses the IR issue directly in a way I did not think it did. Though it does make me question Place even more since the two activities seem to be completely the same. More later, it is a rather long opinion.

spoke-, I think that is right re: terrorism, but to my knowledge dogs are not universally trained.

[Saltire]

I can certainly appreciate (and to some extent, share) the concerns about a slippery slope here, but I can’t seem to justify any argument disagreeing with the Court on this one.

The comparison that comes to my mind is with a cop at a routine traffic stop who smells the odor of marijuana in the car using his own nose. It is a valid probable cause to search the vehicle. Anyone who’s ever been around the stuff when it’s burning knows how distinctive it is. I would expect that the unburned substance, even when concealed in a car’s trunk, is as distictive to a trained dog.

An officer who smells a strong alcohol odor from a driver can use that as probable cause for a sobriety test.

If an officer uses odor as a probable-cause basis for further action, will, if asked in court, describe what experiences in his life and training lead him to believe he can tell this particular scent from other scents in the environment.

If a dog provides the probable cause, court testimony will usually describe how the dog was trained and what testing is employed to determine how good the dog is at descrimiinating between scents.

The situation of an officer using a strong odor as probable cause seems perfectly analogous to a dog’s reation to a faint odor being used as probable cause. In neither case does the detection of the odiferous substance need to be the original reason for the traffic stop.

If you think the dog sniff was unconstitutional, would you consider the ‘officer sniff’ to also violate the 4th amendment protection? If not, what do you see as the difference?

As an aside to those that think drug dogs take their cues to react from their handler, don’t you think that a dog that did that would get more false positives? If a dog is known to get a lot of false positives, and the police use the dog anyway, they are just asking for a case to be thrown out. Any good defense attorney is going to bring up the dog’s past record of sucess and failure in court. Besides, the testing dogs undergo regularly is double-blind, so the handler never knows where the drugs are.

[Bippy_the_Beardless]

How is this really any different from a police officer smelling marijuana smoke and using this a sprobable cause for a search. The dog isn’t doing any more than smelling the drug chemicals arround the car, not in any way examining the contents of the car.

[1010011010]

@treis

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

How is a police officer using one specialized drug detection tool (the aforementioned infared scanner) a search, yet using a different specialized drug detection tool (a dog) for the same purpose is not? I’m not seeing how you draw a distinction.

@treis

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

After all, citizen, you have nothing to fear if you have to hide.
Something has always bugged me about the way people phrase comments like that. Please, to repeat: “A 92% chance that I am a criminal is good enough for a quick search.” Doesn’t seem like quite the same thing, does it?

An 8% failure rate (and that’s the most optimistic estimate given so far) doesn’t seem like a problem when it’s happening to someone else… I really don’t think you’d feel the same way when it’s you standing on the side of the road with everyone gawking at rush hour, explaining to your boss that the police are currently searching your car for drugs, and that’s why you didn’t make it to the Very Important Meeting.

[Spoke]

@Saltire

If you think the dog sniff was unconstitutional, would you consider the ‘officer sniff’ to also violate the 4th amendment protection? If not, what do you see as the difference?

You can cross-examine a police officer, under oath, under penalty of perjury. You can’t cross-examine a dog.

As an aside to those that think drug dogs take their cues to react from their handler, don’t you think that a dog that did that would get more false positives? If a dog is known to get a lot of false positives, and the police use the dog anyway, they are just asking for a case to be thrown out. Any good defense attorney is going to bring up the dog’s past record of sucess and failure in court. Besides, the testing dogs undergo regularly is double-blind, so the handler never knows where the drugs are.

You have a lot of faith in defense attorneys, my friend. How is the defense attorney going to know about the dog’s past false positives? (Not talking about tests here. I’m talking about actual traffic stops.) Perhaps if the defendant is wealthy he can afford to pay an attorney enough to do the type of background investigation you’re talking about. But for a defendant who is hiring some storefront lawyer, or is relying on a public defender, that probably ain’t gonna happen.

There was some interesting language about false alerts in Souter’s dissent:

The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. See, e.g., United States v. Kennedy, 131 F. 3d 1371, 1378 (CA10 1997) (describing a dog that had a 71% accuracy rate); United States v. Scarborough, 128 F. 3d 1373, 1378, n. 3 (CA10 1997) (describing a dog that erroneously alerted 4 times out of 19 while working for the postal service and 8% of the time over its entire career); United States v. Limares, 269 F. 3d 794, 797 (CA7 2001) (accepting as reliable a dog that gave false positives between 7 and 38% of the time); Laime v. State, 347 Ark. 142, 159, 60 S. W. 3d 464, 476 (2001) (speaking of a dog that made between 10 and 50 errors); United States v. $242,484.00, 351 F. 3d 499, 511 (CA11 2003) (noting that because as much as 80% of all currency in circulationcontains drug residue, a dog alert “is of little value”), vacated on other grounds by rehearing en banc, 357 F. 3d 1225 (CA11 2004); United States v. Carr, 25 F. 3d 1194, 1214–1217 (CA3 1994) (Becker, J., concurring in part and dissenting in part) (“[A] substantial portion of United States currency . . . is tainted with sufficient traces of controlled substances to cause a trained canine to alert to their presence”). Indeed, a study cited by Illinois in this case for the proposition that dog sniffs are “generally reliable” shows that dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of thetime, depending on the length of the search. See ReplyBrief for Petitioner 13; K. Garner et al., Duty Cycle of the Detector Dog: A Baseline Study 12 (Apr. 2001) (prepared under Federal Aviation Administration grant by the Institute for Biological Detection Systems of Auburn University). In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.

[emphasis mine]

Moreover, I submit that field tests of the dogs only tell part of the story. A dog may do very well in field tests because its handler isn’t giving it conscious or unconscious cues to alert. (Since the handler doesn’t know where the drugs are in that situation.) But that same dog, when brought to a scene of a traffic stop, in a situation where its handler may be excited and eager for an alert, may have many more false positives. Those false alerts aren’t going to show up in the dog’s testing scores.