Time to overturn United States v. Place

… and with it, Caballes v. Illinois.

Those who have followed this blog for awhile know that I consider Caballes v. Illinois one of the more obviously clueless Supreme Court decisions of recent years. For those who don’t know, the decision basically said that a police dog alerting on a car was sufficient justification for a search even if there was no other suspicion. In other words, your Fourth Amendment right against unreasonable search could be eliminated based on a dog’s reaction.

Justice Stevens’ decision for the majority had language that doesn’t pass the smell test for even a first-year law student:

We have held that any interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legitimate privacy interest.”

A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”

The bizarre assumption there is that a drug dog will only alert in the presence of illegal narcotics.

Just recently, as I noted in Dogs are like the Supreme Court. Often wrong.:

Chicago Tribune: The dogs are trained to dig or sit when they smell drugs, which triggers automobile searches. But a Tribune analysis of three years of data for suburban departments found that only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia.

For Hispanic drivers, the success rate was just 27 percent.

So we have actual, practical evidence that Stevens and the majority were dead wrong.

But that’s not all.

Now we can add to that some powerful research evidence proving that drug dog alerts are strongly affected by the interest of their handler in this new study.

Explosive- and Drug-sniffing Dogs’ Performance is Affected by their Handlers’ Beliefs

The performance of drug- and explosives-sniffing dog/handler teams is affected by human handlers’ beliefs, possibly in response to subtle, unintentional handler cues, a study by researchers at UC Davis has found.
The study, published in the January issue of the journal Animal Cognition, found that detection-dog/handler teams erroneously “alerted,” or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present.

“It isn’t just about how sensitive a dog’s nose is or how well-trained a dog is. There are cognitive factors affecting the interaction between a dog and a handler that can impact the dog’s performance,” said Lisa Lit, a postdoctoral fellow in the Department of Neurology and the study’s lead author.

“These might be as important — or even more important — than the sensitivity of a dog’s nose.”

In the study, they informed dogs’ handlers that there could be drugs in any of the rooms, and that a piece of red construction paper in two of the rooms would identify the location of the scent. In fact, there were no drugs or explosives at all.

Although there should have been no alerts in any of the rooms, there were alerts in all rooms. Moreover, there were more alerts at the locations indicated by construction paper than at either of the locations containing just the decoy scents or at any other locations.

That is significant, Lit said, because there were more alerts on target locations indicated by human suggestion — the construction paper — than at locations of increased dog interest — the hidden sausage and tennis balls. There also were alerts on a wide variety of other locations, indicating that the dogs were not simply alerting in the same locations where other dogs had done so.

Lit noted that in the early 20th century in Germany a horse named Clever Hans was believed to be capable of counting and other tasks. It was determined that Clever Hans actually was responding to the minute, postural and facial cues of his trainer or other observers. Similarly, detection dogs may be alerted to subtle human cues that direct dog responses without formal training, including pointing, nodding, head-turning and gazing.

We now have a significant body of evidence that drug dog sniffs are not a reliable identification of the location of contraband. Useful in investigation, to be sure, but not in any way sufficient to fulfill the requirements of the Fourth Amendment prohibiting unreasonable searches.

In the entire Supreme Court, now-retired Justice Souter was the only one who got it. In the Caballes decision, he blasted the majority for their decision and also called for re-visiting United States v. Place, an underlying 1983 decision regarding drug dog sniffs.

In United States v. Place, 462 U.S. 696 (1983), we categorized the sniff of the narcotics-seeking dog as “sui generis” under the Fourth Amendment and held it was not a search. Id., at 707. The classification rests not only upon the limited nature of the intrusion, but on a further premise that experience has shown to be untenable, the assumption that trained sniffing dogs do not err. What we have learned about the fallibility of dogs in the years since Place was decided would itself be reason to call for reconsidering Place’s decision against treating the intentional use of a trained dog as a search. The portent of this very case, however, adds insistence to the call, for an uncritical adherence to Place would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks; if a sniff is not preceded by a seizure subject to Fourth Amendment notice, it escapes Fourth Amendment review entirely unless it is treated as a search. We should not wait for these developments to occur before rethinking Place’s analysis, which invites such untoward consequences.1

At the heart both of Place and the Court’s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband.2 See ibid. (“[T]he sniff discloses only the presence or absence of narcotics, a contraband item”); ante, at 3—4 (assuming “that a canine sniff by a well-trained narcotics dog will only reveal ‘the presence or absence of narcotics, a contraband item’ ” (quoting Place, supra, at 707)). Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the sniff “does not implicate legitimate privacy interests” and is not to be treated as a search. Ante, at 4.

The infallible dog, however, is a creature of legal fiction.

Absolutely. And now we have even more proof.

Unfortunately, we’re not likely to see the Supreme Court willing to address this issue in the near future.

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28 Responses to Time to overturn United States v. Place

  1. darkcycle says:

    One problem with this is that science and objective truth have very little to do with laws and ‘justice’.

  2. Another problem is that the dogs might not smell anything, but complacent (treasonous) courts accept testimony of a dog ‘signing’ that really is not- e.g. the dog breathed or wagged its tail (which it was doing constantly) without any special behavoir of true signing. Me thinks this is epedemic and should result in investigations of such conspiracy to violate the U.S. Constitution.

    The criminal entity of Virginia gets away with this as they did with me, assisted by claims that the police video was ‘just grey static’ and an attorney that refused my requests to challenge any of this- and he was recommended to me by NORML!!!

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  4. fixitman says:

    from the linked article at UC Davis

    “Lisa Lit, a postdoctoral fellow in the Department of Neurology and the study’s lead author.”
    “Lit, who was previously a detection-dog handler, said the study should be replicated with dog teams being videotaped to carefully assess hidden cues handlers might be giving.”
    “It is important to recognize that these findings do not mitigate the abilities of these handler/dog teams to perform successfully.”

    So Ms. Lit after competing this study, still believes dogs searching for drugs is an appropriate tactic.
    It just goes to show even some “scientists” cling to drug worrier beliefs when faced with evidence.

  5. O. B. Server says:

    re: “Now we can add to that some powerful research evidence proving that drug dog alerts are strongly affected by the interest of their handler in this new study.”

    It’s Clever Hans all over again – except multiplied by the number of police-state police departments – and no accountability whatsoever. As always, it’s the cop’s vested-interest word (backed up by an Holy Infallible Dog, this time) against yours. Guess which comes up second best? (Unless, maybe, there is a hidden camera.)

  6. allan420 says:

    aaah… this is what I like to see… nothing like a little public biopsy to show how pustulent these rancid, cancerous lies (tumors) invading our body politic really are. The facts do seem to keep piling up on our side, don’t they? Hmmm… yes, this deserves a THUD!

    100% failure should be indicative to even the most die-hard WOD believers that their shit is getting pretty thin… for a “scientist” to remain skeptical in light of such evidence is just so very uncool.

  7. Servetus says:

    There’s a fear factor to dogs that police states find useful. The propaganda that claims dogs can detect smells buried under a foot of asphalt has been drilled into the public’s mind to make them fear the K9 superbeast. False sniff alerts were mostly unknown to the public—until now.

    An incident some years ago illustrates another problem with sniff searches.

    A sheriff decided to run some drug dogs through a stopped AMTRAK train traveling through his county. The dogs were successful in detecting only marijuana residues, including a few medical marijuana users who probably complained loudly about their right to privacy. A bigger problem was that the imagery of police dogs searching train passengers was far worse than anything the sheriff’s posse found on the passengers—too reminiscent of wartime Germany. The news media picked up on it, and the sheriff was forced to call off sniff searching trains.

    The train episode shows a need for privacy in a public setting, whereas a stopped automobile sniff search allegedly eliminates a need for privacy in a private setting, using a justification that’s less than 50% reliable. It would be far easier to just flip a coin to produce a search warrant for a vehicle.

  8. Tony Aroma says:

    I thought the Constitution only applied to humans. Since when is the word of a dog worth anything, legally that is. Until a dog can go before a judge and present his case for a search warrant, i don’t see how this sort of thing can stand up in a (human) court.

  9. kaptinemo says:

    In every article so far concerning drug dogs I said that the dogs were very cognizant of the slightest movements made by the handler, as in ‘body language’. You may be unaware that you are telegraphing information to the dog, but the dog is acutely aware that you are. In reality, you have to train the handler twice as hard as the dog, to keep from making those kinds of mistakes.

    Dogs are hard-wired from evolution (and to some extant, breeding)to use all the senses available, and with vision, since they are largely color-blind, they concentrate more on motion than contrast. And that means they pay the greatest attention to any and every possible motion the handler makes.

    And given the bond between dog and human, and how much the dog wants to please its’ alpha-male human handler, if the assumption on the part of the handler is that drugs are present, and that assumption is telegraphed by the handler’s stance, the dogs will provide false indications. I know, I worked with air-scent SAR dogs back in the 1970’s, and nothing has changed. AND TODAY’S DRUG DOG HANDLERS KNOW THIS TO BE TRUE, AS WELL.

    Any honest past or present dog handler could have told them this, but Justice Stevens et al only listened to those who supported their law n’ order authoritarian mindset. The Supreme Court hasn’t been worth its’ salary since Brandeis’s days. Cabelles, Raich etc. are just more proof of inexcusable intellectual laziness and ideological bias on their part. That national policy is derived from their decisions, when such decisions are based more upon their personal ideological prejudices than scientific fact, is an indicator of just how far down we’ve fallen as a republic…

  10. Common Science says:

    allan & fixitman- this sword hanging over scientist’s head is nothing new. We’ve seen these contrary footers at the conclusion of a lot of objective studies during the Nixon and Ford era.

    For government-employed scientists, there is a collective subconscious mechanism that dictates if your study/ research conclusions goes against current government doctrine, no matter how extensive a higher stage of truth, you have to transcribe a ‘however’ footer that indicates a willingness to accept that due in part to an unforeseen oversight, existing governance or belief is not necessarily wrong. That’s if you wanted the government to continue funding your next scientific project. There’s no such thing as unfettered scientific funding.

    • allan420 says:

      no doubt here… and I must point out it hasn’t missed our notice how often their science is predicated upon finding harm. That hasn’t worked well for them so far… NIH sets out in the ’70s to discover how bad that mareehuana is and find instead it fights cancer. Tashkin is tasked at finding out how herb hurts the respiratory system and instead finds the corrolation w/ lower cancer rates for us pot heads. Oooops…

      The hypocrisy, arrogance, treachery and bigotry is so blindingly obvious. When we examine Prohibition (and we have, I’m speaking of the larger we) w/ the same intense scrutiny that cannabis has been subjected to, we can tag the drug war’s big toe and bag that beast up. Damn… I mean I’m just a freakin’ forklift driving lumberflinger/window cleaner and I (hyuck!) figgered it out. (Of course I could prolly qualify for my Bachelor’s in drug policy by now…)

      Of course it is interesting how turning something like cannabis over to the corporation scientists makes for some very strange bedfellows… thinking Doc Russo and Andrea Barfwell both working for GW Pharma…

  11. divadab says:

    @kaptnNemo – you mentioned Raich (Gonzalez v. Raich), which in my opinion is a far more pernicious example of the corruption and anti-Constitutionality of the current Supreme “Court”. Some time I’d like to hear a “Justice” explain how a woman growing medicine, for her own personal use, on her own property, engaging in neither commerce nor inter-state movement, is subject to interference by the federal government (including incarceration and appropriation of her property) by virtue of the interstate commerce clause of the Constitution.

    This kind of crap logic makes a contemptible joke of the federal government and reveals it to be a lawless usurper of powers it is specifically not entitled to by the highest law of the land, the Constitution. Why should we respect it or support it? Isn’t it our duty as citizens to oppose it?

    • DdC says:

      In Angel Reich’s case, using free WAMM RxGanja could curtail the interstate black market profits. Potentially if left unchecked and others did it, could do financial harm to the cartels, thus hindering their Constitutional rights. The DEAth Merchants and their groupie Drug Worriers live in the Opposite Universe. What we see is their mirror images. It’s not a war against drugs, its a war against plants they can’t synthesis… But since we have a WAMMfest every year, with the City’s blessing. I don’t think they did a good job of stopping her use.

      CONgress’ CONvenient Commerce Santa Clause

      Cover-Ups, Prevarications, Subversions & Sabotage

  12. Steve says:

    I wonder if there is a way to sabotage drug-sniffing dogs without hurting them? Some sort of harmless but persistent chemical that could be sprayed all around the…

    Never mind.

    • allan420 says:

      … like bongwater in a squirt gun, sprayed on car tires at Seattle’s BC car ferry terminal? just thinking out loud… I occasionally enjoy these little pipe dreams and never minded sharing my more diabolic ones. When “sinsemilla” became a common trade word I knew there was trouble afoot. If all us smot pokers today were still smoking herb w/ lotsa sticks, stems and seeds the movement of spreading pot seeds in all public flower beds would be much further along. I’m just sayin’…

  13. kant says:

    I think there is a broader point here peter has somewhat hinted at. It’s not just the fallibility of dogs. It’s not just the dog being very intuitive and taking subconscious signals from a handler .

    That is how did you determine between when a dog just get it wrong; smells residue of a drug that is no longer there; signals the presence of drugs at the subconscious signals of the handler; And when the handler actively commits fraud?

    It would be so easy to commit fraud and it would be indistinguishable from any of the other events.

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  15. kaptinemo says:

    @ DivaDab:

    Since 1937, with the (in)famous FDR court packing scheme, the Supremes have been off-track from their original purpose of acting as a bulwark against Statist repression on the part of the Executive Branch and have become, especially since 2000, wholly creatures of that Branch…and willing instruments of that repression in the name of (choke, cough, puke) ‘public safety’ and ‘national security’

    The history of that period is far more important than most realize, for not only was it the year that cannabis was fraudulently prohibited by an incompetent and criminally negligent Congress, it was also then that the Federal Government began to grow to the point of becoming a menace to the very people it was supposed to serve.

    In a nutshell, FDR’s Democratic Party-controlled Congress was being blocked from passing the legislation that he wanted because the sitting Supremes of the day, operating from the idea of ‘originalism’ in that the Constitution says what it says and nothing more, said FDR’s legislation was out-of-bounds and unConstitutional.

    FDR got p*ssed and threatened to pack the Court with his hand-picked cronies, and the SC blinked. Which then began the largely unchecked expansion of the Federal government at the acute expense of the States, rendering them little more than provinces in a Federal empire.

    But it wasn’t just the States that suffered, as with the erosion of the protecting bulwark of the States, individual liberties began to be affected by each new SC ruling empowering the Feds. The SC case of Wickard is a perfect example of how that worked…and Wickard is the basis of the ruling on Raich.

  16. kaptinemo says:

    And, if my previous effort did make it clear how important all that was, and what Raich really>/b> means, think about this:

    The entire Federal apparatus created since 1937 has been built upon Wickard. If today’s Supremes had paid more than lip service to their supposed beliefs in ‘federalism’, they would have voted in favor of Raich.


    It would have meant turning back the clock in the dismantling of over 90% of the Federal government, with the resulting return of power back to the States, in essence returning the Fed Government to a weak position vis-a-vis the States. It would have returned the States from being the ‘states’ (notice the lack of capitalization often used when referring to them? not an accident, people) to being the ‘sovereign States’ once more. The Fed would have to ask “Pretty. please?” instead of say “Do as I say, or else!”

    That’s how important this all is…and why the Supremes voted they way they did. Had they done the right thing, it would have been ‘Samson in the Temple’ time. They weren’t about to wreck their high-and-mighty position at sitting in the right hand of the Executive Branch. They knew which side of the bread the butter was on…

    Raich was a lot bigger than just MMJ. It was an artillery piece aimed right at the heart of the Fed Behemoth. One yank on the lanyard, and it would have been all over.

    • divadab says:

      So we’re still living the downstream effects of the fascism of the thirties. Roosevelt and Stalin and Hitler ALL increased the power of their federal governments’ apparatus at the expense of the States (Soviet Socialist Republics in the case of the USSR and Duchies, Principalities, free cities, and so on in the case of Germany), and at the expense of the freedom of their citizens.

      Usurpers! It’s well past time to de-federalize. In this I agree with Grover Norquist – now if only the right were actually what they claim to be and not neo-fascist war glorifiers. They actually get stuff done, unlike the left which seems stuck in impotent hand-wringing and blog posting.

      Cannabis people are getting it done underground, with no representation. Which is probably why we’re successful – no careerist corrupt politicians have the stones to ride the green wave – they’re cowards and pleasers and won’t bite the hand of Mammon that feeds them and buys them their positions in our potemkin democracy. Power of the people and protection from the green lady. Babylon will fall!

  17. angryJoe says:

    I wonder if a car painted with HEMP SEED oil based paint would alert a dog…

  18. vicky vampire says:

    The stats from Chicago Tribune are piss poor,in favor of the Drug Sniffer Dogs,it downright pitiful.
    Most folks around America were I’m sure,in awe and thought all these years the Dogs were exemplary,infallible almost.
    WOW shock,shock and to steal one of Allan420 fav sayings THUD.
    lies,Lies and more Deception in the Prohib’s Arsenal.

    Another waste of millions of dollars,that could have gone for education and Health care and other better programs.

  19. darkcycle says:

    They won’t stop using the dogs based on this or any study. If you could prove the DOGS were profiling, they’d continue to use them. It would take a reversal of previous court decisions allowing them, and that will not happen with this police state court we currently have.
    The dogs are a tool, just as is allowing their (possibly pre-urinary) attentions to rise to the level of reasonable suspicion. A tool to harass and intimidate those people unlucky enough to warrant the authorities attention. The German Citizenry didn’t initially object to the requirements that travel and identity papers be presented on demand. It all seemed very reasonable, given what they were being told. It was only after enough people had heard the dreaded “Your papers are not in ORDER” that they realized. The authorities had set up a system where any irregularity, or smudge on the paper, or even the suspicion they had been modified was sufficient to land the unfortunate person right in the camp system, with no way to get legal help, or even contact loved ones…. No question in my mind we’re nearly there now. Secret ICE detention centers, for profit prisons, terrorism as the scapegoat and the final vehicle to Fascism, just like the Jews were in Germany. Baby, we’re there now, and them fascists, they just LOVES them their dogs.

  20. BruceM says:

    Also, your legitimate expectation of privacy is not dependent on whether or not you possess something illegal. That’s a disturbing post hoc rationalization that negates the right to privacy.

    Also, not all controlled substances are per se illegally possessed. That’s probably true for most C-I drugs, but even those can be possessed legally in certain situations. The mere suspicion of possession should not imply illegality without more. Only with suspicion of possession plus evidence that it’s illegally possessed would BEGIN to give police probable cause. I’d still need more, but those two things would be a start. A dog sniff doesn’t mean shit.

  21. Mike R says:

    Well, it does stand to reason that if a witch is lighter than wood, she must float. A duck can also float, so if that witch weighs the same as a duck, we burn her.

    And a dog sitting down next to your car means you must be a filthy dope head, so we have to burn you too.

  22. kaptinemo says:

    As Mike R has so ably explained prohib thinking, here it is in action.

  23. warren says:

    The nazi liked dogs too.

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