Supreme Court To Hear a New Drug Dog Case

Thursday, March 29th, 2012

Scott Henson notes that the U.S. Supreme Court has granted cert in Florida v. Harris, in which the Florida State Supreme Court overturned a conviction based on a search after a drug dog alert. I haven’t read the case yet, but it sounds like this could be a challenge to Illinois v. Caballes, in which the Court ruled that a sniff test isn’t a search.

The Court didn’t directly address the reliability of drug dogs in that case, although Justice Souter delved into the question in his dissent. That seems to be the focus of what the Court will look at in Harris.

I’ll have a long piece on that Collinsville, Illinois police stop up soon at Huffington Post. It will touch on some of this. I was also able to obtain about a year’s worth of records for one particular Illinois State Police K9 narcotics unit, which I’ll break down in the article. (Spoiler: The dog and its handler were far from infallible.)

In the meantime, here’s a piece I wrote last year for Reason on our mistaken assumptions about drug dogs.

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22 Responses to “Supreme Court To Hear a New Drug Dog Case”

  1. #1 |  Gritsforbreakfast | 

    Not exactly a challenge to Caballes, exactly. More a challenge to the pseudoscience underlying dog sniff evidence, raising the question of what threshold of training, documentation, etc., must be surpassed for the dog to be considered “reliable” in court for purposes of determining probable cause. IANAL, but that’s how I read the FL case. God knows, of course, what SCOTUS might do with it.

  2. #2 |  Yizmo Gizmo | 

    My advice to the Supreme Court:
    Call in sick. Or say that your pet swallowed your homework.
    Otherwise you’re going to have to publicly acknowledge that the
    “K-9s” exist solely to allow the government to circumvent the 4th Amendment based on vague “alert” signal that has never been properly defined anywhere.
    Next case…

  3. #3 |  Festizio | 

    The entire premise of Caballes is based on O’Connor’s erroneous statement in US v. Place that a drug dog sniff is a binary search that can only reveal either the presence or absence of narcotics. It’s a really terrible precedent made even more terrible by the fact that the question wasn’t necessary to the decision and the court didn’t hear arguments and evidence about whether or not the things they were saying about drug dogs were true. It looks like the court wants to deal with the issue now, since they’ve granted cert here and in Florida v. Jardines, which deals with police walking a drug dog up to your front door without Probable Cause. It’ll be interesting to see how they come out, I hope we can get Scalia on our side based on his opinion in Kyllo, he’s pretty protective of the home.

  4. #4 |  Mykeru | 

    Obviously the purpose of “drug sniffing dogs” isn’t to find drugs, but to give the police “reasonable cause” for a search.

    This also explains why many a department were willing to spend lots of money on expensive “hi-tech” dowsing rods.

    In the immortal words of the evil CEO from Robocop “Who CARES if it works?”

  5. #5 |  nobody | 

    @#4 – I hadn’t heard before that various police have purchased hi-tech dowsing rods. I’m not sure if this is one that you were referring to, but thanks anyway for the tip – http://en.wikipedia.org/wiki/ADE_651

  6. #6 |  Pablo | 

    I agree, IIRC Caballes addressed whether a sniff of the air outside a container constituted a “search”, not whether an “alert” (whatever that is) by itself provided probable cause for a search. After SCOTUS ruled that an exterior sniff was not a search, many state supreme courts have ruled that an “alert” from a “trained, certified” drug dog gave p.c. for a search. These courts have on the whole failed to define “trained” or “certified,” or to require specific evidence of a dog’s reliability.

  7. #7 |  Marty | 

    I’m really looking forward to the huffpo piece…

  8. #8 |  Dante | 

    Bottom Line:

    If you’ve got cannabis in your car, no matter how well hidden, a well-trained dog can smell it. From a long way off.

    If you’ve never, ever, ever had cannabis in your car or anywhere near your person, a well-trained dog can still smell it. His handler will tell you that the dog “alerted” no matter what.

    Guilty until proven innocent. Guess who that benefits?

    Protect & Serve (Themselves!)

  9. #9 |  johnl | 

    Some of the new court members, while they might be a little blind to law enforcement abuses, seem like fairly regular people who have spent time with dogs. O’Conner seemd to think of dogs as Hogwarts like createures. Roberts might understand they are just dogs.

  10. #10 |  Personanongrata | 

    Excerpted from The Mind of a Police Dog

    The two largest departments the Tribune surveyed—the Chicago Police Department and the Illinois State Police—said they don’t even keep track of such information.

    How convenient, why would any reasonable person expect that law enforcement “professionals”, executing the “searches”, to track and record the use/results of police dogs “searches” when over half of the so-called “alerts” are bogus.

    This is cruel and unusal punsihment being meted by the state in so much as having John/Jane Q Publix pay (taxation) for the police dogs, the dogs training, the handlers training, the operating costs and then their own potential incarceration based soley upon the spurious “alert” from fallible police dogs/police-dog-handlers.

  11. #11 |  Deoxy | 

    I haven’t read the case yet, but it sounds like this could be a challenge to Illinois v. Caballes, in which the Court ruled that a sniff test isn’t a search.

    Sniffing the air outside your car or house isn’t a search of it any more than looking at it from the outside is. That seems blindingly obvious to me.

    The problem has always been the unchallenged assumptions from “air outside” to “stuff inside”. Three in particular:

    1) the stuff smelled outside is identified correctly (HUGE source of error)
    2) the smell outside came from stuff inside (and not somewhere else relatively nearby)
    3) the stuff smelled is likely to still be there (enough to give probably cause)

    All three of these ares are just assumed, and all of them are subject to at least very large error.

    1) I don’t think even need to touch on this one on this blog, but I will say that depending on HUMAN noses (the officers smelling at the door) is even worse than the usual stuff
    2) No one seems to even MENTION this; is there any science at ALL about how far smells can travel in terms of dog “alerts” (assuming good faith dog handling)?
    3) Ever buy a used car? EVER? Actually, I’ll go one better: I had a friend who managed to recover his stolen vehicle (he did it himself, actually – the story is pretty wild); the police had been notified, and he let them inspect it (it smelled VERY strongly of drugs), but they MISSED some (he found it later). Even if they had been thorough, how many years later might a dog (again, assuming good faith dog handling) alert to that vehicle?

    These raise ENORMOUS doubts. And that’s without even touching on how easy it is to get false alerts (and how challenging them is essentially impossible, as no one else handles that dog and could say).

    But the initial claim that it’s not a “search” for legal purposes? Yeah, that’s a no brainer – it’s not. I just don’t see how, in the vast majority of cases, it could be PC FOR a search, either.

  12. #12 |  Zeb | 

    While I am sure that most dogs are quite capable of smelling hidden drugs, they should never be sufficient PC for a search. Anyone who has spent more than one minute around a well trained dog and it’s owner/handler can see quite clearly that the handler can get a dog to do pretty much whatever he wants it to do. And the handler can interpret the dog’s actions however he decides to. It is just insane that they get so much benefit of the doubt on this. You really have to be a liar or willfully ignorant not to know that police cut corners and cheat and lie frequently at this point.

  13. #13 |  Jerryskids | 

    “False alerts” aren’t necessarily false alerts – a dog can easily be trained to respond to a simple but hard-to-detect command to “alert”. Cops don’t necessarily need to wait for the dog to alert in order to establish PC, they can simply order the dog to alert.

  14. #14 |  Mykeru | 

    @nobody

    I was familiar with cop dowsing rods via the then named Committee for the Scientific Claims of the Paranormal and the James Randi Educational Foundation.

    Here’s Randi on the issue:

    http://www.randi.org/site/index.php/swift-blog/844-randi-responds-to-the-arrest-of-james-mccormick.html

  15. #15 |  Yizmo Gizmo | 

    If they’re gonna go with Dowsing Rods, or dogs, can gov’t-issued Ouija Boards and Tarot cards for cops hell-bent on bashing down your door and barging into your house/car commando-style be that far behind?

  16. #16 |  Pablo | 

    #11 Deoxy–the distinction some would draw between different kinds of “sniffs” is to what extent this is aided by esoteric technology. An unaided human nose is one thing. Contrast that with using thermal imaging equipment (which SCOTUS has ruled is a search, at least when applied to a private residence. Is a dog–with a much keener sense of smell than a human–somewhere in between? Closer to one than the other?

    Some police departments have flashlights equipped with alcohol detectors. They use these in DUI roadblocks/traffic stops to detect odor on a drivers breath while they are being questioned. The driver generally does not know this and is thus not consenting. Is this a “search?” After all it could be argued that one does not have an expectation of privacy regarding one’s exhaled breath.

  17. #17 |  Burgers Allday | 

    You are awesome, Mr. Balko! Thanks for all you do.

    Your correspondent,

    Burgers

  18. #18 |  Dana Gower | 

    I’ve actually seen it go the other way: The drug dogs were brought to a private school. The students were told to leave all their belongings in the classroom and go stand in the hallway. The dogs were then brought in to check each desk. One girl started sobbing. The dog went to her desk and went crazy. The officer was nearly unable to pull the dog off a backpack. The next day, it was announced to the media that no drugs had been found at the school. After all, rich kids don’t use drugs.

  19. #19 |  Terry | 

    For those of you who may not already be aware, in some parts of the country, the use of drug sniffing dogs against the traveling public has become a ubiquitous practice. Specifically, Customs & Border Protection has outfitted nearly all their internal immigration checkpoints with K9 units. These drug dogs are routinely used against domestic traffic at pre-primary, primary & secondary inspection stations all absent any individualized suspicion in the vast majority of cases.

    In discussions on the topic of the use of drug dogs during traffic stops, I hardly ever see reference to just how far down the road we’ve already traveled as a society. Usually discussions revolve around the use of drug dogs during traffic stops in which an officer claims either reasonable suspicion or probable cause existed to initiate the stop in the first place but few recognize the fact that the federal government has already made major in-roads to the use of drug dogs during traffic stops absent any suspicion whatsoever.

    As such, hundreds of thousands of people who live and/or work within 100 miles of an international border, are subjected to daily suspicionless intrusions in their lives. I happen to be one of those individuals and began documenting my encounters years ago.

    As evidence, I’ve compiled several links below to videos I’ve made & articles I’ve written about this subject on my blog, Roadblock Revelations. I’ve also included links to several other youtube videos I’ve come across on the subject. Finally, I have several dozen additional videos of drug dogs in action I’ve taken over the past few years that I’ve yet to process and post online. I’d be more than happy to release this data to anyone who thinks they can use it to help put a stop to these daily violations of our fundamental rights.

    Links to videos & articles on the use of drug dogs at suspicionless checkpoints inside the country appear below:

    * Illegal Homeland Security Drug Checkpoints:
    https://www.checkpointusa.org/blog/index.php/2008/07/04/p94

    * Give Them An Inch and They’ll Take 100 Miles:
    https://www.checkpointusa.org/blog/index.php/2008/10/06/p104

    * The Worst Part of Censorship Is ————-
    https://www.checkpointusa.org/blog/index.php/2009/01/19/p124

    * Customs K9 Team Deployed At Internal Immigration Checkpoint:
    https://www.checkpointusa.org/blog/index.php/2009/08/24/p173

    * Immigration Status Smelling Dog or Illegal Drug Checkpoint?:
    https://www.checkpointusa.org/blog/index.php/2011/02/27/p239

    * DHS Checkpoint Blog Entry 10: Man’s Best Friend:
    https://www.youtube.com/watch?v=Fv8hoQYeVl0

    * DHS Checkpoint Blog Entry 11: The French Connection:
    https://www.youtube.com/watch?v=kG5FFilmjfc

    * A Deja Vu Moment. Anderson Found Not Guilty – Again:
    https://www.checkpointusa.org/blog/index.php/2010/08/20/p221

    * Border Patrol Agent says dog NEVER makes a mistake!!!:
    https://www.youtube.com/watch?v=zps7k_p1mko

    A few additional videos on youtube related to the use of drug dogs at internal suspicionless immigration checkpoints (these are not my videos):

    * I-8 Border Patrol Drug Checkpoint:
    https://www.youtube.com/watch?v=PFELRmtsMWI

    * Border Patrol (100 miles from the border) :
    https://www.youtube.com/watch?v=NPOuj-WzAoA

    * Civil Rights Violated by Border Patrol Agents in Arizona:
    https://www.youtube.com/watch?v=hT3K-Qb1WVU

    * Border Dog:
    https://www.youtube.com/watch?v=_WmUsuwDxmU

  20. #20 |  croaker | 

    This is why no one teaches about “Clever Hans” anymore.

  21. #21 |  Mykeru | 

    @croaker

    That’s because Clever Hans doesn’t count.

    /Thank you! Try the veal.

  22. #22 |  swampdood | 

    Dante is right. The police will always say that their dog alerted. Since there is no way to cross examine the dog, the police have cart blanch to search whoever they want in vehicle stops making a mockery out of the fourth amendment and the accused’s right to confront the accuser. “Now Fido, could you please explain to the jury that you are sure that you smelled the marijuana instead of the steak sandwich?” As an ex-cop and canine handler, it worries me that courts have overlooked the fallibility of both the dog and the dog-handler but more importantly they have overestimated the veracity of the street cops who overwhelmingly think their good intentions outweigh the importance of constitutional rights.

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