New at HuffPost: SCOTUS Goes to the Dogs

Friday, November 2nd, 2012

I have a piece up at Huffington Post looking at this week’s drug dog cases heard by the Supreme Court.

Much of it will be familiar if you’ve read this site over the last year or so. But I also consider whether the lack of any real criminal defense experience among any of the current justices may affect they way they consider these kinds of cases

(Hint: I think it does. And not in a good way.)

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15 Responses to “New at HuffPost: SCOTUS Goes to the Dogs”

  1. #1 |  Calion | 

    Have you submitted an amicus brief in these cases? The justices really need to know all this.

  2. #2 |  Jack Dempsey | 

    I feel as confident that the justices will side with liberty as I feel safe with the police in this country.

  3. #3 |  Burgers Allday | 

    Wonderful article.

    Legally sound without being legalistic.

    BTW, here are the Professor Kerr posts on this oral argument:

    http://www.volokh.com/2012/10/31/thoughts-on-the-oral-arguments-in-the-dog-sniff-cases/

    http://www.volokh.com/2012/10/26/a-few-thoughts-the-dog-sniff-cases-florida-v-jardines-and-florida-v-harris/

    No comment on the more recent posting where he predicts the outcome of the two dogsniff cases, but I have to say that I was not impressed at all by the one where he gave his legal analysis.

  4. #4 |  Boyd Durkin | 

    I only wonder how they will word the mental gymnastics to rule in favor of the state.

  5. #5 |  Curt | 

    The comments over there are always priceless. My fav:

    “Another two cases – these involving dog searches – that could well get us much closer to ‘Amerika’. Note that only two of the S. Ct. justices have any criminal law experience. This is the same court that issued ‘Citizen United’ 5-4 which torched our electorial process.”

    I would like to see an explanation of the logic on that one.

  6. #6 |  Kid Handsome | 

    #3 Boyd Durkin – They have already told us. It is a search (which should require a warrant), but it’s “minimally invasive.”

    It’s only going to check for contraband – somehow the 4th Amendment doesn’t apply to people’s contraband, only their legal property. Therefore, police can never violate your Fourth Amendment rights because if they search, and find nothing you aren’t harmed. However, if they find “contraband,” well then, the 4th Amendment doesn’t apply anyway.

    They’ll also state that a police officer coming to your door is no more trespassing than the UPS guy trespasses when he delivers a packages, even though the UPS guy (or girl) isn’t conducting a search.

    I think that pretty much covers their logic.

  7. #7 |  Cynical in New York | 

    I don’t have any reason to believe that the robes wont rule in favor of the states agents. It’s funny though at least here in NY the only people that are allowed on your property unannounced are the gas guy, the electric company (just to read your meter) and the delivery guy (mail, UPS, Fed Ex, etc). The cable and telephone guys can be sued for trespassing.

  8. #8 |  Yizmo Gizmo | 

    Verily,
    WHat if the dogs could be trained to sniff out not drugs but “injustice” and they attacked both the SCOTUS *and* the cops after the inevitable conclusion of this charade oops I mean case?
    Imagine the 6 PM news.

  9. #9 |  Peter Ramins | 

    I think a court full of former prosecutors results in a court that seeks to defend the law from “loophole”-seeking CDAs. Like, the various laws and statues need protection from the people, instead of the other way around.

    Also, I somehow need to work the phrase “And Scalia has yet to meet an ‘exception’ to the Bill of Rights that he doesn’t like.” in here.

  10. #10 |  Warren | 

    I think anything that causes more hate and distrust of cops and the justice system is a good thing.

    So whatever way the stupremes rule, it’s a win.

  11. #11 |  Weird Willy | 

    “…the majority of the justices assumed that the nose of a dog is infallible.”

    It is actually worse than that. The majority of the justices ruled in Place not only that a dog’s sniff is not a search, but that it is also not directed in any way by the behavior or interests of the handler. According to them, a dog’s sniff occurs independent of all other factors, and as such is sui generis, not to be classed within any of the rubrics we customarily use in the law. This flies directly in the face of all that we know (and knew then) about dogs and their police handlers, and constitutes nothing less than a purposeful, unmitigated lie. The Supremes lied then, have lied since, and will probably continue lying about the use of drug-sniffing dogs in the future.

  12. #12 |  Windy | 

    @ #9
    “I think a court full of former prosecutors results in a court that seeks to defend the law from ‘loophole’-seeking CDAs. Like, the various laws and statues need protection from the people, instead of the other way around.”

    Which is exactly why I never vote for any candidate for judge who was a prosecutor, and do vote for any CDA who is running for a judgeship in my local and State elections. I don’t often get to vote for a judge because the vast majority of candidates for those offices are former prosecutors, all too often all the candidates are and I then just leave those races blank or write in NOTA.

    As for SCOTUS, it nearly always sides with authoritarian policy and the government, ever since FDR. I’m actually surprised the few times the majority opinion actually comes down on the side of the Constitution and unalienable rights, I think I could count those times on one hand and have fingers left uncounted.

  13. #13 |  Burgers Allday | 

    oh, yeah — just thought I would mention — the best way to get rid of the dogsniff situation would be to get rid of the exclusionary rule. it is time to throw us into that briar patch.

    “Its gotta be Burgers.” ™

  14. #14 |  freedomfan | 

    Excellent article, Radley. It’s really pathetic that someone like Scalia, who is undoubtedly an intelligent person, seems unable understand the dangerous police incentives here. It should be easy for any judge to conceive that the incentive for police to want dogs that alert when there are no drugs, or to alert when the officer wants them to alert (irrespective of the presence of drugs) is that such behavior effectively side-steps the need for probable cause. Any officer who wants to search someone but who does not have legitimate probable cause to do so can merely get his probable-cause-on-a-leash from the back of his cruiser. There is no punishment for the officer when the search turns nothing up, so it effectively lowers the standard for a search to “anyone the officer wants to search.” Scalia doesn’t see why the police would favor that arrangement?

    Wait, I take that back. Anyone who seriously stands by the “new professionalism” in police work nonsense is clearly too isolated to have any concept of the unpleasant realities of that job. In all likelihood there isn’t a Justice on the Court who has been pulled over (or been the target of any other law enforcement action) which wasn’t then immediately dismissed with, “Have a nice day, sir.” What cop would be dumb enough to treat one of the Nine the way he would some random citizen, particularly if that citizen didn’t look like he was likely to hire a good attorney?

    BTW, regarding the drug dog searches, things will get worse in another way, too. Soon enough, the police dog handlers will realize that some of these studies are testing the handler’s biases as much as the dog’s detection ability. At that point, they will become more deliberately neutral during the test, ignoring clues left in order to give hints to them, rather than the dogs. That will result in better test results for the dog/handler teams, but it won’t remove their biases (and the dogs’ ability to respond to them) out in the field.

  15. #15 |  Whahappan? | 

    “It’s really pathetic that someone like Scalia, who is undoubtedly an intelligent person, seems unable understand the dangerous police incentives here.”

    I have no doubt Scalia understands the incentives. He’s just trying to lay the groundwork for a bad faith ruling in favor of the government.

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