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Nov 01 2012

SCOTUS to Hear Drug Dog Cases

The U.S. Supreme Court will hear two cases involving the use of drug dogs that could be very important in restoring some minimal safeguards from the 4th Amendment — or could further entrench the abuse of power routinely engaged in by law enforcement around the country. Orin Kerr previews the two cases, Florida v. Jardines and Florida v. Harris. The first case:

Florida v. Jardines raises the question of when the police can take a drug-sniffing dog up to the front steps and front door of a single-family home to sniff for the smell of drugs emanating from inside. Either they can do that whenever they want (the government’s view), or they can do so only with a warrant (the defendant’s view). The choice is pretty stark, and I suspect most people and most Justices will have an intuitive sense that either it’s perfectly fine to bring the dog to the front steps or it’s a pretty dangerous practice that clearly steps over the line. There’s lots of room in existing doctrine for either result, so in many ways the case boils down to which instinct prevails: Do you see this as a case of the police going wherever the public can go or as a case of the police using a very sensitive surveillance device to monitor the inside of the home?

And the second, which is even more important:

In Harris, the issue is how we know that a drug-sniffing dog is sufficiently trained that its alert creates probable cause that can then justify a search. A dog might be a reliable drug-detector or might not be, but it’s not like we can put the dog on the stand and have defense counsel cross-examine him about whether he really smelled the drugs. The state argues that judges should defer to canine professionals for the probable cause determination: If canine professionals announce that the dog has been trained, then the dog’s alert is always probable cause. The defense argues that we can’t rely on canine professionals and that we need to know the dog’s record of success in past searches to know whether the dog’s alert is reliable…

So how should the Court decide the case? By rejecting absolutes, I think. First, I don’t think it makes sense to say that an alert by a “certified” dog automatically creates probable cause. We just don’t know enough about the “certification” process to know if that’s true (indeed, there is no one certification standard, so it’s hard to know what that even means). At the same time, I don’t think it makes sense to say that the state has to produce the records of past alerts to establish probable cause in each case. Probable cause always depends on the circumstances and a close look at all the facts. As we lawyers put it, it requires considering “the totality of the circumstances.” In some cases, the dog sniff alone should be enough to create probable cause. In other cases, it won’t be, and the state would be free to put on other evidence to try to meet its burden (including records of past alerts). I don’t think there’s a one-size-fits-all answer to the question. So I think the Court should emphasize the fact-specific nature of the question and the government’s burden of proof to justify the warrantless search, and then remand to the state supreme court.

I think Kerr is absolutely wrong on the second case. Yes, there should be an absolute and it should be a complete rejection of the legal doctrine that an “alert” by a drug-sniffing dog is all it takes to conduct a warrantless search. Study after study shows that drug-sniffing dogs are wrong a staggering percentage of the time. In one recent double blind study, only 1 out of 18 certified drug-sniffing dogs did not falsely alert to the presence of drugs in the test. But there’s no way in hell the Supreme Court is going to do that. That would be too much like privacy and liberty.

And by the way, the Obama administration is, as it has been in every case involving the Bill of Rights and the criminal justice system, on the wrong side of both of these cases.

19 comments

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  1. 1
    erichoug

    Here’s an Idea, can we just end the war on drugs? That would make the whole issue moot. And I really wouldn’t have a problem with them bringing corpse sniffing dogs to someone’s front door for a wiff.

  2. 2
    Gregory in Seattle

    I believe that precedent is on the side of the cops here. The courts have long said that if illegal activity can be detected from outside the home or vehicle, then it is effectively public and the Fourth Amendment does not apply. Cops cannot use technology to enhance their senses and thus get probable cause — no sound-detecting snoop ears, no chemical detectors, that sort of thing — but precedent is has generally allowed the use of an animal whose natural senses are superior to human.

    That is to say, a cop has sufficient grounds if he smells pot coming from someone’s home or car. The only question is whether he can use a dog’s nose rather than his own.

    The second case raises a very interesting issue of training. There is a lot of evidence suggesting that dogs are more likely to follow their handlers’ non-verbal cues and act as the handler expects it to act, than it is to act as it has been trained. So if the hander wants a positive reaction, the dog will respond positively regardless of whether it actually detected anything. Assuming, of course, the animal is trained to sniff out drugs in the first place. That will be the interesting one to see.

  3. 3
    TGAP Dad

    Does anyone familiar with this case know if the presumption of the drug dogs’ accuracy as a means of detection is open for questioning by the court? It seems as if there is a presumption of their accuracy (and sensitivity), which would then seemingly constitute a “search.” However, if this accuracy is an open question before the court, (that is to say that the dog then constitutes a canine dowsing rod) then it seems like an clear case of illegal search, as the dog would then be responding not to drug scents, but subtle cues by the handler.

  4. 4
    F [i'm not here, i'm gone]

    Drug dogs are inaccurate as hell. As far as precedent goes, what makes the cops think they can fucking step foot on the property to get to the front door in the first place? That is utter bullshit. But of course, all manner of completely unconstitutional and just plain wrong behavior is tolerated from law enforcement, who are largely a bunch of morons in the first place.

  5. 5
    Modusoperandi

    It’s not the drug dogs fault that they’re inaccurate. They’re probably tweakin’, lookin’ to score.
    They didn’t even want to work for the police, but they were given the choice of that or jail.

  6. 6
    Rick Desper

    Allowing a dog’s sniffing as a substitute for a warrant would basically allow the police to search any house they wanted to, any time they wanted to. All they would need to do is show up with a dog, let it sniff around a bit, say “that means that there’s drugs inside” and go right in.

  7. 7
    rickdesper

    Well that’s weird. Logging with google gave that bizarre string of characters. Oh well.

  8. 8
    Bronze Dog

    I have a feeling I’m going to be groaning in despair when I read about the rationale used in a pro-drug dog ruling.

  9. 9
    Reptile Dysfunction

    On the internet, nobody knows you’re a drug-sniffing dog.

  10. 10
    rvkevin

    I think the first would be fairly simple. Police can go anywhere on public land, but I don’t see how they would be able to go up to the front door without probable cause. The second issue is more interesting. It’s known that handlers can signal dogs to alert and even if they couldn’t, there is nothing preventing them from lying about it. There is no way to document it, record it, or reproduce it on the stand unless the dog’s inspection is filmed. I think this would be the only way to show that the search was legal. This also lets the defense see if there was any manipulation of the dog. This also assumes that the dogs, when handled properly, can actually find drugs at an acceptable rate. I’m Unsure of the answer to that question so I’ll leave that question open.

  11. 11
    Noadi

    Dogs have a pretty good record when it comes to false negatives, meaning that if there is something there that they are trained to find they will find it. So they are fantastic for searches where they are actively looking for hidden drugs/explosives/bodies/etc when there is already probable cause for a search. The problem is that false positive rate and for that reason they should not be allowed to be used for probable cause or as evidence to obtain a warrant.

  12. 12
    joseph

    Marcia Coyle of The National Law Journal had a run-down of the arguments yesterday in court. According to her the court was skeptical of the state’s postition.

    http://www.pbs.org/newshour/bb/law/july-dec12/scotus_10-31.html

  13. 13
    kerrietiedemann

    I had to read this through twice because the first time as I read about our inability to cross-examine drug-sniffing dogs on the stand my mind started imagining such a scenario playing out in a comical movie.

    Generally I agree that there is no one-size-fits-all solution to issues but I think using the dogs to gain probably cause is always crossing the line. I like the idea of filming the search once there already is probable cause, since its so easy for humans to be unaware of certain body language that dogs easily pick up on that create many of the false positives.

  14. 14
    Gretchen

    Allowing a dog’s sniffing as a substitute for a warrant would basically allow the police to search any house they wanted to, any time they wanted to. All they would need to do is show up with a dog, let it sniff around a bit, say “that means that there’s drugs inside” and go right in.

    Generally the dog is required to “alert,” which (I believe) means that it stops snuffling around and gives a bark or at least fixates on one place, but yeah….basically, you’re right.

    I used to watch Lockup on MSNBC a lot. A cheesy reality show, no doubt, but it does give you at least a cursory idea of what life is like inside big American prisons. One time they cleared the prisoners out of a huge barracks so that they could bring dogs in to investigate for drug contraband. At one point while examining the bed of someone thought to have had drugs, the dog alerted, the bed was searched, and absolutely nothing was found. The handler was unphased: “That doesn’t mean anything– there probably used to be something there, and she smelled that.” Yes, it’s possible that there was very faint residue. It’s also possible that handlers either can’t discern or don’t give a damn about discerning when or how often their dogs alert falsely.

  15. 15
    eric

    On the second case: I think there’s a way to both satisfy Ed’s criteria and the government’s. Make certification (and regularly required re-certification) independent of the government justice system, and design it to reward accuracy rather than prosecutoral support. Then you could eliminate the use of dogs that do poorly – which is what Ed wants – and credibly rely on certification – which is what the government wants.

    Reliance on certification per se is not a fundamental problem: reliance on prosecution-biased certification of prosecuting detection devices, is.

  16. 16
    rvkevin

    Eric, that doesn’t solve the problem of eliminating bad searches. A dog could perform tests well and then be used as a facade to search for weapons, large amounts of cash, etc. The only way to avoid this is to keep in the field statistics.

  17. 17
    WMDKitty -- Survivor

    The dogs are easily manipulated, and the handlers (often police officers themselves) can, in fact, make the dog “alert” on command, thus giving them the false pretext of “probable cause” and the opportunity to plant “evidence”.

    Also, Gregory, up here in WA, an odor is not considered probable cause for a search, nor is it considered possession.

  18. 18
    arakasi

    The other obvious issue with the front door sniff is that even if the dog does correctly alert to drug residue at the front door, it says nothing about if there has been drug use inside the house or by anyone in the house. Anyone could walk up to your front door and leave a scent.

  19. 19
    wscott

    @ Gregory #2: IANAL, but I think you’re right that precedent in both cases is on the government’s side here. Not saying I like it…

    @ rvkevin #10: The police can already go up to your front door without probable cause. Yes, it’s your property, but your front door is considered quasi-public (I don’t think that’s the proper legal term), since solicitors, Girl Scouts & Trick-Or-Treaters are routinely allowed there. Again, not saying you gotta like it.

    @ eric #15: I think the idea of a certification standard is a good one, but tricky to implement. The problem is, if SCOTUS says “all drug dogs must be certified by an independent body that doesn’t yet exist to meet a national standard that doesn’t yet exist either” they basically invalidate a ton of past/current drug dog cases, plus all future cases for 2-3 years until it can all be put together. I recognize a lot of people wouldn’t see that as a bad thing, but I think most Justices would be hesitant to go there.

    @ rvkevin #16: There’s really no way to eliminate bad searches, but I agree keeping stats on the handler is as important as the dog.

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