Rushing to gnash my teeth…

After my piece yesterday on the Illinois v. Caballes 4th Amendment fiasco, I was accused in various blogs of much gnashing of teeth and a rush to judgment. So I thought about it some more, reminded myself that I did not accuse the Justices of killing the 4th Amendment with this particular decision but rather simply pissing on it after it was already dead, and upon further consideration, decided that my rush to teeth gnashing was on the mark.
Now if you want some really good analysis of some of the real problems with this decision, you should read Fourth Also, Scott at Grits for Breakfast is currently blogging circles around me, so I feel like I’m playing catch-up. His post today is right on.
So let’s break it down for the 4th Amendment impaired. No major analysis, but just some casual discussion.
Why is this a problem? After all, as Justice Stevens said, all the dog is noticing is the smell of something you have no legal right to possess, so there is no invasion of privacy.
This may be fine in a perfect world, where all drug-sniffing dogs are 100% infallible, but that world doesn’t exist. What happens when the dog gets all excited despite the lack of drugs? What will happen? Why, your car will be searched. When no drugs are found, can the search be retracted? No. It happened.
Prior to this ruling, there needed to be a human judgment based on evidence of some kind that a crime had been committed (it already was allowed to be horribly arbitrary (early 4th Amendment stabbings), but there was at least some human element), and then that would justify bringing in a dog to sniff and maybe add to the preponderance of suspicion enough to justify a further search. Now, however, the judgment — the decision to search is allowed to be delegated solely to… a dog. The subsequent search is reasonable because a dog says so.
Of course, there are those who say, “why worry about the case where an innocent person is searched? After all, they weren’t arrested. As long as they had nothing to hide, why should they mind being searched?” This is very similar to the argument used constantly by police to convince citizens to give up their rights. I call it the “striped genitalia argument.”
Here’s how I view it in my daydream…

Officer John Paul Stevens (hey, it’s my dream) pulls me over for going 1/10th of a mile over the speed limit. He wonders if I might be carrying drugs, or weapons, or child pornography, or income receipts that I didn’t declare on my taxes, or cash, or unpaid parking tickets, or degenerate art, or writings that criticize the government, or something like that in my trunk. I say it’s none of his business and refuse permission to search.
Officer Stevens: Why won’t you give me permission to search? After all, why should you mind unless you have something to hide? The fact that you don’t want me to search is suspicious, don’t you think?
Me: I think you have striped genitalia.
Officer Stevens: Whaaa???
Me: Green and orange-striped genitalia, to be precise.
Officer Stevens: What are you blathering about? My genitalia are not striped, green, orange, or otherwise.
Me: Then pull your pants down right here by the side of the street and prove it.
Officer Stevens: No way! Are you nuts?
Me: Why not? Got something to hide? The fact that you won’t is suspicious and means you probably do have striped genitalia.
At this point in the daydream, the officer usually pulls out his gun and shoots me. But you get the point. It doesn’t matter whether you have something to hide. The 4th Amendment guarantees to you to be secure in your person and effects against unreasonable searches. Period.

Other reasons why this ruling concerns me…
As others have noted, the new concept of essentially using the result of the search (possession of contraband) to justify the sniff is a dangerous and troubling trend (and legally backward). Of course, some of the convolutions are likely because of the potential conflict with the principles of this decision along with the principles of the thermal imaging decision.
In addition to the questions I had yesterday, I wonder at this notion that a device (in this case a dog) that can detect specifically illegal items is not, by definition, an invasion of privacy, since there is no right to possess illegal items. By this reasoning, could not police wander everywhere with dogs having them sniff? (On last night’s news, an Illinois police officer already said that they plan to step up their use of dogs dramatically). Also, by this reasons, could not an officer administer a breathalizer test to anyone, anywhere? After all, it’s a device that is detecting items that are illegally possessed in your body (level of alcohol, or drugs, or…) without invading the body (merely measuring the breath that’s coming out of the body, much like the smell of drugs outside the car).
Others have come up with additional scenarios, and I think it’s very clear that we have only begun to imagine the ramifications of this decision (on both sides). The one positive result is that the credibility of drug-sniffing dogs is going to be subject to even greater scrutiny.
I think I’ll run out and gnash my teeth some more.
Update: If you’re interested in some of the techniques for training drug dogs, including the legal scents that are used to mimic marijuana, cocaine, and other drugs, there’s some interesting product information here. (Thanks, Scott)

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