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If a dog alerts to the 4th Amendment, does it exist?

The Supreme Court announced that it will hear the Florida case regarding using a dog sniff as cause to search a house.

This is, of course, the ultimate extension of the atrocious decision authored by Justice Stevens in Caballes v. Illinois that allowed dogs to determine whether there was probable cause to search a car.

In the drug detection case, Florida v. Jardines (docket 11-564), the Court agreed to decide one of the two questions raised. The constitutional issue at stake is whether police must have probable cause — a belief that evidence of a crime will be found — before they may use a dog sniff at the front door of a suspected “grow house,” or a site where marijuana is being grown. The case grows out of a Miami police officer’s use of a drug-detecting dog, “Franky,” in December 2006 to follow up on a “crime stoppers” tip that the house was being used to grow marijuana plants. The Florida Supreme Court ruled that police needed to have probable cause belief in wrongdoing before they could use the dog at the home, on the premise that the drug sniff was a “search” under the Fourth Amendment.

The state of Florida told the Supreme Court that the state ruling conflicts with Supreme Court precedent that a dog sniff is not a search under the Fourth Amendment. “This Court,” the state said, “has explained that a dog sniff is not a search because the sole knowledge that the dog obtains by sniffing is the presence of contraband, which a person does not have a reasonable expectation of privacy in possessing in the first place.” The petition cited the Court’s 2005 decision in Illinois v. Caballes, and argued that the Florida courts “are now alone in refusing to follow” that ruling.

The State of Florida is, of course, saying exactly what Stevens did in Caballes, that “the sniff is not a search because the sole knowledge that the dog obtains by sniffing is the presence of contraband, which a person does not have a reasonable expectation of privacy in possessing in the first place.”

And that might be true if dogs were 100% correct in their sniffs, but as we know for a fact, they aren’t even close.

They’re playing dangerous language games because the actual fact is that all of us have an expectation of privacy in our personal belongings in our car or house and a dog’s sniff could just as easily result in our house being searched unreasonably.

If the Supreme Court rules in favor of Florida on this one, then just like with cars, they’ll be giving law enforcement complete free rein to go on fishing expeditions. All they’ll have to do is find a house that they want to search and bring a dog to it. The dog is likely to alert because of the handler’s desires rather than any actual presence of drugs.

The big hope, of course, is that new information and data on the fallibility of drug dog sniffs will cause the Supreme Court to not only rule against Florida, but reject Caballes, too.

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41 comments to If a dog alerts to the 4th Amendment, does it exist?

  • strayan

    Can’t they train pigs to do the job of sniffer dogs? Aren’t their noses more sensitive still?

    Pigs on leashes would be quite a spectacle… although it might be difficult to tell who was walking who – those unemployed sniffer dogs might have a valid use yet; telling the cop from the ham.

  • strayan

    If one of Duncans squirrels came to my door with cop would it have grounds for a search? If not why not?

  • Eridani

    Since the current USSC has ruled against cannabis use in the past, I do not have much hope.

    • Duncan20903

      Which cases are you thinking of? Justice Roberts started working ther in October 2005, Raich was in June. The Roberts Court has refused to grant Certiorari in both City of Garden Grove v Felix Kha (2007) and County of San Diego et al v San Diego NORML (2009), in both cases letting stand rulings which would give any Know Nothing prohibitionist an apoplexy if they possessed the intellectual abilities to be aware of such technical matters. Refusing to hear Kha makes it binding in the 9th that police have to return cannabis seized from patients protected by a State law. County of San Diego the case which obviates the arguments that State employees are in jeopardy for performing administrative tasks mandated by State law. County of San Diego would have been an ideal case to have struck down either or both the Compassionate Use Act (Prop 215) or the Medical Marijuana Program Act. Yes it would have taken an act of Judicial legerdemain to have done that. E.g. the ruling in Caballes v Illinois.

      Perhaps you can fill me in on the cases which the Roberts Court has made rulings which are perceived to be against our interests? That would be rulings made subsequent to October 2005, not before.

      Do people really think that my hopes for the Roberts Court are nothing but baseless wishful thinking? Wishful thinking no doubt, but there’s a significant foundation of basis borne of at least half a dozen rulings including Gonzalez v Oregon (2006).
      ———-

      What a difference a year can make. Last summer, in Gonzales v. Raich, the Supreme Court upheld federal efforts to squelch a California law legalizing medical cannabis. Because the case was about constitutional limits on federal power, many Court watchers called the decision a death knell for the federalism revolution under the late Chief Justice William Rehnquist. Now, in Gonzales v. Oregon, the Court on Jan. 17 reversed course, barring federal interference with Oregon’s controversial assisted-dying law.
      /snip/
      http://www.cato.org/pub_display.php?pub_id=5430

      • Matthew Meyer

        And lest it be thought that the Roberts court is always “anti-drug” no matter what, please remember that they saw a lot of reason in the O Centro ruling regarding the religious use of ayahuasca. (Albeit true that that case offered innumerable factual and legal differences to any case involving cannabis.)

        • darkcycle

          The Roberts Court has respect for STATES rights. I agree with you there, and that’s as far as it goes. They have been just as consistent in eroding CIVIL rights as the have been consistent in upholding the rights of the States.

        • Duncan20903

          Well I guess we get to wait and see.

  • Pete, I’m sure you’ve seen this before, but this is a great time to link to the great Radley Balko piece on drug dogs, just for the sake of evidence.

  • kant

    I really hope they bring up the fact that is impossible to distinguish between when the dog smells drugs that are no longer present, when the dog gets it wrong and when an officer commits an act of fraud. And of course the impossibility of petitioning the government for a redress of grievances (the fraudulent search)

    • darkcycle

      Essentailly , if that search is ruled legal, then the presence of a dog is all that is required. Since the propaganda line runs that “only a handler is qualified to tell if a drug dog alerted”. (That little bit of bullshit arose when dash cams came into vogue, and videos began emerging of officers executing searches when the dogs did not evidently alert) So, an alert is all that is needed, and the officer’s say so is all that’s needed to claim an alert. Fantastic. Fourth amendment eliminated, and just for the cost of a little dog food. Hell, why even even bother training the dogs?

      • Maria

        Crazy, with a dog present officers can’t ever be accused of fraud or any abuses of civil rights. I sense that dog handlers will be a growth career. And since training, certification, testing, all of that is handled internally it’s all wrapped up. I have to hand it to the authoritarians, they score pretty big on this one.

  • Hopetopia (Change Hands)

    4th Amendment? That is so yesterday dude. Old racist white guys founded that constitution, amendments and bill of rights crap. Don’t ever doubt the best government money can buy they know what is best for mere mundanes.

  • Bruce

    Treating us like shit and turning us away at the Welfare office and purchasing Pig Doggie with the money thus underhandedly purloined was an ignorant and stupid thing to do, BigBro. Venal and Phoney PensionHoggy ButtHurt MADDclowns here have even given the captive and abused PigDoggies equivalency to their human counterparts. A PigDoggie funeral every bit as Ornate Boorish Ornery and Expensive as that of an Officer. Awwww. Cry me a river. Susan didn’t even get a funeral. Or Charlene. Or Russell. All three beautiful human beings more deserving of funding assistance than any Goose Stepping Operation GSO and its Illegitimate and bloated TreasonBudget. Good thing gasoline and its jellification agents are cheap. Napalm. What a choice for the patriot and home defender. Backs to the wall, Fuck us around some more.

    • darkcycle

      Petroleum napthalates and phosphate based jellification agents are used in producing Napalm, Bruce. It only smells like gasoline.

      • Duncan20903

        Petroleum jelly is a drug. What, you don’t believe me? Go read the label of a bottle of Vaseline. That will teach you to doubt me.

  • Servetus

    In 1907, Clever Hans the Wonder Horse appeared to be able to count by tapping his hoof. Call out a number, or do some arithmetic, and Hans would tap out the exact number or answer. It was discovered that his handler unconsciously relaxed when Hans reached his appointed number, thereby cueing Hans to stop tapping. It’s known by animal cognitionists as the ‘observer expectancy effect ’ or simply ‘Clever Hans effect ’.

    If a clever horse can count, I would expect a clever dog to do much more; like bark once for meth, twice for coke, three times for marijuana, or turn around and run like hell if it’s a bomb.

    But no. American citizens are getting their civil rights whacked by nothing more than a butt wiggle and a wagging tail. Maybe a whine or two. No objective investigation exists in the majority of cases of the dog or handler to determine if observer expectancy effect made a difference. The failure rates for dog sniffs are worse than those for lie detectors. The drug cops are going to need a new dog act if this circus is going to make it past the 4th Amendment.

  • […] If a dog alerts to the 4th Amendment, does it exist?Drug WarRantThe Supreme Court announced that it will hear the Florida case regarding using a dog sniff as cause to search a house. This is, of course, the ultimate extension of the atrocious decision authored by Justice Stevens in Caballes v. …Supreme Court to review use of drug-sniffing dog at the front door of a houseWashington PostSupreme Court to rule on drug-sniffing dog caseLos Angeles TimesSupreme Court to rule on use of drug-sniffing dogsSan Francisco ChronicleAFP -Wired News -Wall Street Journal (blog)all 492 news articles » […]

  • […] Jan, 2012  Dog News News Sources wrote an interesting post today onHere’s a quick […]

  • OnTopic

    .

    They passed the Alien and Sedition Acts in 1798 that, among other things, effectively made it a crime to publicly criticize the government, even though the 1st Amendment protects freedom of speech.

    During the Civil War, they allowed President Lincoln to prohibit by decree free speech critical of the war and of Lincoln’s policies.

    In 1941, they allowed FDR to systematically round up thousands of Japanese-American citizens and inter them in concentration camps, even though the Constitution suspends the writ of habeas corpus only in cases of rebellion or invasion.

    In 1971, they were willing accomplices with President Nixon declaring war on drugs and zealously pursuing criminalization of a victimless personal choice.

    And, of course, after 9/11, these ghouls of government power quickly passed the insidiously named Patriot Act that clearly violates several constitutional rights as it pushes the nation ever further into a police state.

    Randy Alcorn is a Santa Barbara County resident.

    • Windy

      Good comment, however I have one little nitpic, but it amounts to a lot when it comes to our liberty. Our rights are NOT “constitutional rights” our rights are “unalienable” and the Constitution is supposed to guarantee that being limited by the Constitution, government will not be authorized, allowed, or able to restrict, remove, or otherwise tinker with those rights. If it is phrased as “constitutional rights” that would give the government the power to alter the Constitution to alter our rights. ALWAYS use the phrase “unalienable rights” instead, please.

  • Francis

    The State of Florida is, of course, saying exactly what Stevens did in Caballes, that “the sniff is not a search because the sole knowledge that the dog obtains by sniffing is the presence of contraband, which a person does not have a reasonable expectation of privacy in possessing in the first place.”

    And that might be true if dogs were 100% correct in their sniffs, but as we know for a fact, they aren’t even close.

    I’m not sure I’d buy the argument even if dogs were 100% accurate. (And just as an aside: the presence of contraband is not the only knowledge the dog obtains by sniffing. I don’t want some strange dog passing judgment on the state of my home or its contents. No, dog, I’m not a neat freak. Is that a crime? And yes, my pantry does contain a lot of highly-processed sugar-laden foods. I guess you could say I’m not a health freak either. But at least I wear pants and don’t drink out of the toilet.) More seriously, here’s some powerful language from the Florida Supreme Court opinion:

    The dog “sniff test” that was conducted in the present case was an intrusive procedure. As explained more fully below, the “sniff test” was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement agencies. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity—i.e., the preparation for the “sniff test,” the test itself, and the aftermath, which culminated in the full-blown search of Jardines‟ home—lasted for hours. The “sniff test” apparently took place in plain view of the general public. There was no anonymity for the resident.

    Such a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many—neighbors, passers-by, and the public at large—will be viewed as an official accusation of crime. Further, if government agents can conduct a dog “sniff test” at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct. Accordingly, we conclude that a “sniff test,” such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a “search” within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.

    • Duncan20903

      .
      .
      So Francis, exactly when did you quit drinking from the toilet? 😀 You know, if you quit the sugar you might not be such an excitable boy.

      The State of Florida is using that line about no expectation of privacy for contraband because that line was in Caballes. There’s this highly technical legal term that they’re trying to use to their advantage known as “precedent”. It’s the same reason I always advise people refusing a request for a consensual search to work the phrase “expectation of privacy” into their response. Appellate Courts are suckers for magic words. That doesn’t mean that magic words always work, just that they work most of the time.

      • Francis

        Geez, Duncan, I haven’t drunk from a toilet in literally months (and that’ll teach me to tell you anything in confidence). 🙂

        But yeah, I get the precedent. I just think the precedent is very, very wrong. My point is that the 4th Amendment doesn’t talk about being free from “unreasonable privacy intrusions,” it talks about “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” And saying that a dog sniff is “not a search” is just absurd. Are the cops not, you know, looking for something? I can see how the privacy interests involved could be a factor in determining the reasonableness of the search, but I don’t think privacy should be the only consideration.

    • kant

      Actually this raises an even more damning fact. They had half a dozen LEO agencies ready to pounce PRIOR to the “sniff test”. How could they possibly know the results of the sniff test before it’s done? If they needed the dog then clearly they didn’t have enough evidence for a normal search warrant. The obvious answer is that they were going in regardless of the dog’s reactions. If this isn’t enough to show to the courts that dogs are just a pretense to warrant less searches then we might as well abolish judicial review.

  • claygooding

    It isn’t the first time animals have been used to designate innocents or guilt,,I think it started in the Spanish Inquisition,then the Salem Witch hunts.

    And the same type of people are using dogs now for the same process,find people that disagree with moral laws passed by the control freaks.

    • darkcycle

      I think they might have used Duncan’s squirrels in the inquisition.

      • IvorToremof

        From Likmepedia:

        “Accused heretics were identified by the general population and brought before the tribunal. They were introduced to Duncan’s squirrels whereupon they immediately jumped at the chance to confess their heresy and indict other heretics. After admitted their wrongs and turning in other aggressors they were released and given one of Pete’s special Hamster for a whole month.”

      • Duncan20903

        They used ducks in Monty Python’s day.

  • vickyvampire

    I still think these roadside check points are total bullshit I want them gone they just fishing expeditions for everything bastards.

  • kaptinemo

    At what point will it become evident that a law case involving dueling studies regarding dog sniffs is long past due?

    It’s the same thing with cannabis itself. If cannabis prohibition could be dragged into court and all the studies disproving the reasons for maintaining the prohibition entered into evidence and the DrugWarriors brought into court and made to testify under oath, a lot of prohibition’s foundation will get hosed away like the congealed manure it is.

    Lawsuits with teeth for perjury and cavalier attitudes towards people’s rights is what’s needed.

    • Duncan20903

      .
      .
      It’s amazing how people convert when they look at the evidence.

      But state Sen. Larcenia Bullard, D-Miami, who is sponsoring the bill in the Senate, said that what started as a courtesy filing has become a cause for her, after she started looking into it. Her belief that it should pass stems from 1) wanting to de-glamorize it for young people who are looking to do something illegal, and 2) the medical relief it offers to those who need it. And it’s good for the state budget, too, she said.

      http://health.heraldtribune.com/2012/01/09/medical-marijuana-bills-filed-in-fla-house-senate/

      On the streets of Gainesville working as an undercover narcotics investigator, former Gainesville Police Deputy Chief Mike Jones said he has started thinking that marijuana ought to be legal. Pro-marijuana organizers say Jones might be one of the witnesses who legislators hear from in the upcoming push.

      “When I came out of the undercover assignment in my first year at GPD, I was convinced that marijuana would be legal in the next five years, “ said Jones, who now lives in New Mexico and has gotten marijuana as medicine from Veterans Affairs doctors for his post-traumatic stress disorder. “I couldn’t see the threat anywhere near what prohibitionists were claiming.”

  • warren

    Keep the four leg turd factories sniffing what their meant to sniff female dog genitalia. In most cases they get this right.and get the pigs back to the protect and serve mode.

  • Don Thorpe

    Have the dog sniff the our first documents in the whitehouse, the ones of hemp, and arrest everyone in there. Clean up the problem.

  • Dicom

    I thought it would be helpful to point out that the Illinois part of Caballes v. Illinois was argued by Democrat Illinois Attorney General Lisa Madigan. There is more blame to go around than to just the court. We would be wise to remember who was behind pushing that case to the SCOTUS.

    Lisa Madigan, daughter of Michael J. Madigan, Speaker of the Illinois House for more than 20 years, Chairman of the Illinois Democrats for more than 20 years, Co-Chair of the Rod Blagojevich re-election campaign, tax attorney, and just a real neat kind of guy. Obama loves Lisa Madigan, both before and after she successfully argued that a dog sniff is not a search.

    Also worthy of note is that since 2002, the Democrats haven’t needed a single Republican or other vote to pass anything in Illinois. Democrats have had complete control for a decade. The best drug reform the state has gotten under complete Democrat control the past decade is some talk in Cook/Chicago of “decriminalizing small amounts” by issuing tickets instead of making arrests. The uber-restrictive, temporary, and timid medical marijuana bill even failed under complete Democrat control.

    Feel free to blame a “conservative” court all you want, but please remember that is was the “progressives” that got the Court to agree on this one. Both major parties are to blame for taking our civil liberties, and so are all the people that continue to vote for them. Lisa Madigan hasn’t gotten an ounce of criticism from progressives for her role in arguing that a dog sniff isn’t a search. Makes me think progressives that align/vote with Democrats could care less about civil liberties.