Dog As The Cops' Witness
Jacob Sullum has a piece in this month's reason about how cops use dogs to manufacture probable cause, "This Dog Can Send You to Jail":
"He asked me to step out and come back to his car," Burns says, "and that's when I noticed the dog in the back seat, a yellowish Lab. I explained that I hadn't been drinking and my getting on the shoulder of the road was strictly from the wind. He said that he was going to write me a warning, and I said, 'OK, that's fine.' He asked me if I had any drugs in the car. I said, 'No, sir, I don't do drugs, and I don't associate with people who do.' He asked me would I mind if he searched my vehicle, and I said, 'Well, yes, I would mind if you searched my vehicle.' "But thanks to the U.S. Supreme Court, the deputy did not have to take no for an answer. In the 2005 case Illinois v. Caballes, the Court declared that "the use of a well-trained narcotics-detection dog...during a lawful traffic stop generally does not implicate legitimate privacy interests." So the deputy was free to walk his dog around Burns' truck. "He got out with this dog and went around the car, two or three times," Burns says. "He came back and said the dog had 'passively alerted' on my vehicle." Burns, who is familiar with drug-detecting dogs from his work as an M.P. at Edwards Air Force Base in the 1970s, was puzzled. Properly trained police dogs are supposed to indicate the presence of drugs with a clear, objectively verifiable signal, such as sitting down in front of an odor's source or scratching at it. Yet "the dog never sat down, the dog never scratched, the dog never did anything that would indicate to me that it thought there was something in there."
...The foundational text of the courts' canine cult is U.S. v. Place, a 1983 decision involving an airport search that found a kilogram of cocaine in a suitcase to which a dog had alerted. The Supreme Court unanimously concluded that the Drug Enforcement Administration (DEA) violated the Fourth Amendment by keeping the bag for 90 minutes before presenting it to a dog. But instead of stopping there, Justice Sandra Day O'Connor, in a majority opinion joined by five of her colleagues, gratuitously ventured into an issue that had not been addressed by the parties to the case and did not need to be resolved for the Court to decide whether the seizure and search were legal. O'Connor opined that "a 'canine sniff' by a well-trained narcotics detection dog...discloses only the presence or absence of narcotics" and "does not expose noncontraband items that otherwise would remain hidden from public view." Because of this specificity, O'Connor concluded, "exposure of respondent's luggage, which was located in a public place, to a trained canine...did not constitute a 'search' within the meaning of the Fourth Amendment."
Two decades later, when the Court extended this principle to cars in Caballes, dissenting Justice David Souter noted that O'Connor's conclusion "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." In reality, Souter said, "the infallible dog...is a creature of legal fiction." Souter cited examples of dogs accepted as reliable by courts that had error rates of up to 38 percent. He added that "dogs in artificial testing situations return false positives anywhere from 12.5 to 60 percent of the time."
If anything, Souter gave drug-sniffing dogs too much credit. A 2011 Chicago Tribune analysis of data from suburban police departments found that vehicle searches justified by a dog's alert failed to turn up drugs or drug paraphernalia 56 percent of the time. In 1979 six police dogs at two public schools in Highland, Indiana, alerted to 50 students, only 17 of whom possessed contraband (marijuana, drug paraphernalia, and cans of beer), meaning the false positive rate was 66 percent. Looking at the performance of an Illinois state police K-9 team during an 11-month period in 2007 and 2008, Huffington Post reporter Radley Balko found that the dog sniffed 252 vehicles and alerted 136 times, but 74 percent of the searches triggered by those alerts did not find measurable amounts of illegal drugs.
Drug-sniffing dogs...slightly more accurate than police smelling marijuana in a moving car (while they're driving)...
http://www.heraldtribune.com/article/20120824/ARTICLE/120829785
Just because a dog may give them 'probable cause' doesn't mean you should consent in the first place.
DrCos at February 12, 2013 3:58 AM
Amy Alkon
http://www.advicegoddess.com/archives/2013/02/12/dog_as_the_cops.html#comment-3600649">comment from DrCosJust because a dog may give them 'probable cause' doesn't mean you should consent in the first place.
They don't need your consent if the dog alerted.
Amy Alkon
at February 12, 2013 5:15 AM
What law are you violating if you just drive away while the guy goes to get his dog?
TMLutas at February 12, 2013 7:35 AM
The dogs may also sit (alert) because they are tired after working a too long shift. Dogs have ADD by nature and are limited to about 30 minutes work before losing the attention required. Dogs can easily be trained to respond to very subtle human body language...if the cop wants to search the car, he can invisibly order the dog to alert, and the victim will never know.
I saw some stats the other day that indicate that for the first time, a majority of Americans do believe that our government is robbing us of our rights. Want a revolution? It is closer than it has ever been.
bmused at February 12, 2013 11:28 AM
Amy Alkon
http://www.advicegoddess.com/archives/2013/02/12/dog_as_the_cops.html#comment-3600834">comment from bmusedA note on ADD: ADD (actually, ADHD) isn't a deficit of attention but an excess of it.
Amy Alkon
at February 12, 2013 11:37 AM
I'm not sure about the premise that dogs are limited to about 30 minutes of work. That would mean that seeing eye dogs (and other service dogs) aren't very reliable, but I've never seen a story otherwise.
That said, working dogs (perhaps outside of active herding or retrieving) aren't "working" the whole time. They ought to be given some command to tell them what to do ("drugs boy?" or "lie down"). They tend not to "just do" things without a specific command unless they are sitting/getting comfy because you haven't said to do otherwise OR you pull out something delish and they're hoping you see how well they are behaving. (If I get cheese out of my fridge, my dog will run up and play dead because we spent so much time working on it).
I have seen a dog in obedience class that, at 60 minutes basically went "class is over, I'm done listening" but that was the exception.
I'm working on scent training my dog (just for fun). He's supposed to find a box in a pile that has a bit of Slim Jim in it. There's a command for it, he won't just go look random places if I haven't given him an indication that's what he's supposed to do. (note that we'll eventually move on to finding it outside of the pile of boxes). After we get this down, I might try to branch out into a non-food smell (maybe so he can find my lost car keys).
Of course, I'm a bit of a dog-nerd - we go to obedience practice group most weeks, took "agility for the fun of it," and he knows two ways (by name) to get into heel position... :) But from all the other non-working pet dogs in these classes, who are doing uber-training just because they enjoy it, I'd say my experiences are pretty typical.
Shannon M. Howell at February 12, 2013 1:13 PM
Two apocryphal stories:
1) The drug dealer would would have cops show up on a regular basis with a K9. What the cops didn't know is that the drug dealer would grind up mothballs to a powder and put it in the carpets in all the entrance ways. He would also spread it around the carpet in front of his stash. It was generally below the human sense of smell. The powder would numb the dog's sense of smell for the duration. But afterward the dog would alert on the sample.
2) A couple of USAF airmen in the dorms liked to smoke pot. They didn't do it in the room but stored it there. They found out the K9's would alert on drugs and pepperoni pizza when sniffing at the room door. For several months they would leave a few slices of pizza, regularly changed out, sitting on top of the mini-fridge. The airmen got minor write-ups about sanitation. The SP's got to the point that they barely noticed the alert. They were finally caught when two different checks, by new SP's, were done two days in a row, and they hadn't left a pizza out.
Jim P. at February 12, 2013 8:03 PM
I believe that if you're going to allow dogs to serve as justification, you might as well give cops Magic 8-Balls as well to determine if they can search without your consent.
'Signs point to yes' ...
DrCos at February 15, 2013 5:38 AM
Leave a comment