This Dog Can Send You to Jail

How cops and their canines manufacture probable cause

Robert J. Burns, a 55-year-old retired nurse who lives in St. Louis, was returning from a trip to the West Coast last October when his white Nissan pickup truck was pulled over on Interstate 40 near Amarillo. Burns was carrying a 12-foot aluminum fishing boat on top of the truck, and he had been struggling against high winds that kept pushing him toward the shoulder. The sheriff’s deputy who stopped him thought he might be drunk.

“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 deputy and another officer who arrived during the stop nevertheless went through Burns’ truck for half an hour or so, reaching up into the boat, perusing his cargo, looking under the seats and the hood, examining the gas tank and the undercarriage. They found no trace of drugs, although they did come across the loaded pistol that Burns mentioned to them once it was clear they planned to search the truck.

“They were cool with the gun,” Burns says. “If it had been California, God knows what would have happened.” He was so relieved that he barely minded the delay and inconvenience, which stretched a brief traffic stop into more than an hour. “I’m not a lawyer, and I’m not a super-libertarian,” Burns says. “Once I realized that the pistol was not going to be an issue, man, they could have spent all day going over that car and under that car. My only concern was that one of the guys might have slipped something in to cover up for the fact that they didn’t find anything.”

That’s one way of looking at it. But even if you are neither a lawyer nor a super-libertarian, you might wonder 1) how often this sort of thing happens, 2) how it came to be that police can get permission from a dog to rifle an innocent man’s belongings, and 3) whether that state of affairs is consistent with the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” The answers, in brief, are 1) fruitless searches based on dog alerts happen a lot more often than commonly believed, 2) dogs acquired this authority with the blessing of credulous courts mesmerized by their superhuman olfactory talents, and 3) this dog license is hard to square with the Fourth Amendment, unless it is reasonable to trust every officer’s unsubstantiated claim about how an animal of undetermined reliability reacted to a person, a suitcase, a car, or a house.

All of these issues come together in two cases the U.S. Supreme Court heard a few weeks after Bob Burns was pulled over. Florida v. Harris raises the question of how a judge knows that a dog’s alert is reliable enough to justify a search. Florida v. Jardines asks whether police need a warrant to use a drug-sniffing dog at the doorstep of a home. These cases, which will be decided by this summer, give the Supreme Court an opportunity to reconsider its heretofore unshaken faith in dogs, or at least limit the damage caused by the amazing canine ability to transform hunches into probable cause.

‘A Creature of Legal Fiction’

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. Similarly, a 2006 study by the New South Wales Ombudsman in Australia, an independent agency analogous to the U.S. Government Accountability Office, looked at more than 10,000 searches of people triggered by dog alerts and discovered that 74 percent of them found no illegal drugs. More-recent data from New South Wales indicate an even higher error rate: 80 percent in 2011.

Those numbers look almost respectable compared to the results of a 1984 operation in which Florida state police stopped about 1,330 vehicles at roadblocks and walked dogs around them. If one dog alerted, another was brought in, and vehicles were searched only if both dogs indicated the presence of illegal drugs. That happened 28 times, but those searches yielded just one drug arrest. In other words, even when two dogs both signaled the presence of drugs, they were wrong 96 percent of the time.

What is going on when dogs alert and no drugs are found? Police and prosecutors usually claim these are not really false alarms because the dog must have detected otherwise imperceptible drug traces left on clothing, cars, or personal possessions. “It’s a convenient excuse,” says Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is an expert on dogs’ olfactory capabilities. While dogs can indeed smell traces of drugs that are no longer visibly present, he says, “no one knows how big that reality is.” When police use drug residue as an all-purpose explanation for what appear to be erroneous alerts, Myers says, “the first term that comes to mind involves a male bovine and the ingestion of grass.”

Consider how Christopher Jbara, a U.S. Border Patrol agent, explained an unsuccessful dog-triggered search observed by a Tucson Citizen reporter in 2008. “He said the car had most likely been contaminated on one side of the border or the other and it was likely the driver was not aware,” the Citizen reported. “He said the car’s windshield had been washed by a window washer on the street before crossing the border, and the water used to clean it could have been contaminated with bong water.”

New South Wales Police Inspector Chris Condon tells a somewhat more plausible story. In response to the 2011 numbers indicating that his department’s dogs were wrong four times as often as they were right, he told The Sydney Morning Herald that “80 per cent of indications by the dogs result in either drugs being located or the person admitting recent contact with illegal drugs.” The implication is that in most cases where people were searched and had no drugs, they had recently smoked marijuana (by far the most common drug found in successful searches) or been around pot smokers, which is why they smelled suspicious to the police dogs. 

But that supposition is impossible to confirm, and it is not even clear what Condon means by “recent contact.” More to the point, the likelihood of actually finding evidence of a crime is the relevant consideration (in Australia as well as the United States) in determining when police may search someone, meaning a dog’s alert can justify a search only if it indicates that drugs are currently present. 

‘They Can Say Whatever They Want to Say’

The issue of what counts as a false alarm is central to Florida v. Harris. The defendant, Clayton Harris, was pulled over twice in 2006 by Officer William Wheetley of the Liberty County Sheriff’s Office, once for an expired tag and once for a malfunctioning brake light. On both occasions, after Harris declined to let Wheetley search his pickup truck, the officer walked a German shepherd named Aldo around the vehicle. On both occasions, Wheetley reported, Aldo alerted by getting excited and sitting down in front of the driver’s side door handle. And on both occasions, Wheetley searched the truck without finding any substance that Aldo was trained to detect. But during one of the stops, Wheetley found 200 pseudoephedrine tablets, along with other chemicals and supplies used to make methamphetamine, which led to Harris’ arrest. Harris pleaded guilty to possession of a listed chemical with the intent to unlawfully manufacture a controlled substance, a second-degree felony punishable by up to 15 years in prison, but reserved the right to challenge the legality of Wheetley’s search.

Since Wheetley did not find any illegal drugs in the truck and Aldo is not trained to detect pseudoephedrine, what are we to make of the alert Wheetley reported? He speculated that Aldo reacted to traces of meth left by Harris’ hand, which might be true. Then again, Aldo might have smelled drug residue left by someone else—perhaps, as Harris’ lawyer suggested, an addict looking for unlocked vehicles with stuff to steal. The dog’s alert does not tell us who left the odor, or even which drug it was. Police dogs generally are trained to detect several substances, and they alert the same way to all of them.

Russ Jones, who worked as a K-9 officer and narcotics detective in San Jose, California, for 10 years and is now a member of Law Enforcement Against Prohibition, notes that the drug-residue excuse is a double-edged sword for police, because it undermines the case for using dog alerts to justify searches. “You’re telling me that my car can be searched because the guy who changed the tires at the tire shop smokes marijuana, and his hands tightened up the lug nuts and put the hub cap back on?” Jones says. “Suppose the UPS guy uses amphetamine or cocaine, and he drops off a book that I ordered from Amazon.com. If a dog smells it, that gives you the right to search my home?”

Traces of drugs on the outside of Harris’ truck are not the only possible explanation for the alert Wheetley reported. Perhaps Wheetley, who said Harris seemed nervous and restless, was so sure the guy was up to no good that he misinterpreted Aldo’s behavior. If a dog handler “wants to see the alert,” says Jones, “he sees it.”

Alternatively, Jones says, “because [the handler] feels the guy is guilty, he just says the dog alerted and uses that as a pretext to search.” Myers recalls a case on which he worked as a defense consultant where an officer claimed a dog alerted as he walked it around a suspect’s car. In the dash-cam video of the stop, the dog was not visible, but the officer was. “When I had him questioned about how long it took the dog to alert, he said a few seconds,” Myers says. “So there should have been at least a two-second pause in front of the car. Nope. There was no pause.”

Jeff Weiner, a prominent Florida defense attorney who frequently deals with drug-sniffing dogs, says he commonly sees videos in which “someone will stand in front so you can’t see the dog, and then you’ll hear them say, ‘Oh, the dog just alerted.’ And then they’ll step away.” Weiner adds that many police departments have stopped recording K-9 teams at work “because they realized that the dogs don’t alert when the cops say they alert.” Without video, he says, “they can say whatever they want to say, and there’s no way to challenge it.”

Assuming Aldo really did alert to Harris’ truck, he might have been reacting to Wheetley’s suspicions. “If someone is acting quite twitchy and nervous,” says Myers, “that evokes suspicion on the part of the handler, which evokes certain behaviors that may cause the dog to alert.…I’ve done frame-by-frame analysis of video tapes, and it’s interesting when the handler stops before the dog does. You think it might have been a cue—not necessarily intentional.”

A 2011 study led by the University of California at Davis neurologist Lisa Lit, reported in the journal Animal Cognition, shows how powerful a handler’s cuing of his dog can be. Lit and her colleagues had 18 handlers walk their police dogs through four rooms where they were told drug or explosive scents might be hidden but where in fact there were no target substances to be found. Each team went through each room twice, for a total of 144 sweeps, and generated 225 false alerts. The alerts occurred most frequently near markers that the handlers were told indicated the presence of scents; they were even more likely at those spots than at unmarked locations where the researchers had hidden Slim Jims and new tennis balls as distractions. “Human more than dog influences affected alert locations,” Lit and her colleagues concluded. “This confirms that handler beliefs affect outcomes of scent detection dog deployments.”

‘Searching for Ham Sandwiches’

A few of the handlers in the Lit study admitted they had intentionally pointed their dogs to the marked locations. But for the most part they seem to have communicated their expectations subconsciously, as observers did with Clever Hans, the famous German horse who supposedly could answer arithmetic questions by tapping his hoof. Although it has been more than a century since the psychologist Oskar Pfungst demonstrated that Clever Hans was reacting to the body language of his trainer and audience, the lessons of that episode do not seem to have penetrated most police departments.

Myers and Jones say dogs should be tested in double-blind situations, where neither the handler nor the observer verifying alerts knows whether or where drugs have been hidden. But such tests are the exception rather than the rule. In weekly maintenance training, Myers says, the handler likewise should not know where the drugs are. But “typically if a cop says, ‘I train the dog every week,’ he’s hiding things and then going around and finding the things he’s hidden. Putting something out, you as the handler, then taking the dog through, you are going to seriously skew the training; you’re going to cue. You can’t help it; you know exactly where the damned thing is.”

Even when a handler does not know exactly where the drugs are, his behavior can encourage the dog to alert regardless of what the animal actually smells. Jones says bad handling practices he commonly sees as a consultant include excessive verbal encouragement (“Go find it, boy!”) and giving rewards (praise, toys, dog treats) for alerts whether or not they are accurate. In a 2011 traffic stop that resulted in a fruitless car search and provoked a lawsuit, Collinsville, Illinois, police officer Michael Reichert walked his German shepherd, Macho, around a car and claimed he alerted in the front. Neither Reichert nor the dog can be seen on the dash-cam video at that point, but Reichert can be heard repeatedly urging Macho on and praising him lavishly.

Dogs that are rewarded for unconfirmed alerts may begin responding to the wrong stimuli. A dog “might just be interested in something, which could be seen as a kind of alert by the handler,” says Myers, “so he rewards him for it. And pretty soon he’s going to be searching for ham sandwiches.” 

As that example suggests, distracting smells, such as the tennis balls and Slim Jims in the Lit study, also con­tribute to false alerts. A 13-year-old girl who was strip-searched as a result of a mistaken dog alert during a 1979 inspection of her junior high school in Highland, Indiana, apparently attracted the animal’s attention because she had been playing earlier that day with her own dog, which was in heat. The Sydney Morning Herald interviewed a college student who was searched at a train station after a police dog sat down next to him; the cops found a package of dog treats in his pocket. Bob Burns remembers an incident from his years as an Air Force M.P. when a dog alerted to a locker that contained not drugs but a wastebasket with a tuna can at the bottom that an officer had hidden to avoid having to clean it for a room inspection. “The dog was just hungry,” Burns says. “There was a lot of embarrassment all around.”

Sometimes the right smell comes from the wrong thing. Many dogs trained to detect cocaine actually react to methyl benzoate, a volatile byproduct of black-market cocaine that is also an ingredient in perfume, solvents, and insecticide. A girl whose purse was searched due to a dog alert during a 1978 sweep of her high school in Goose Creek, South Carolina, turned out to be carrying a small bottle of perfume. Similarly, acetic acid, which is what dogs smell when they smell heroin, is found in vinegar, various food products, and some kinds of glue; the same odor can be emitted by prescription drugs when they are exposed to air. Piperonal, a smell that dogs associate with MDMA, is used in artificial flavors, perfume, and mosquito repellant. Dogs also may have trouble distinguishing the smell of marijuana from the odors of fir and juniper trees. 

Given all these potential sources of error, how does a judge know when a dog’s alert is reliable enough to justify a search? In Harris’ case, the Florida Supreme Court concluded that the search of his truck was illegal because the evidence presented to demonstrate Aldo’s reliability was inadequate. The court wanted more information about Aldo’s training and certification—an important issue because Florida, like most states, has no uniform standards for drug-detecting dogs. The court also wanted more details about Aldo’s performance on tests (“really good,” according to Wheetley). And it wanted to know his record in the field, a question Wheetley could not answer because he does not keep track of erroneous alerts. After all, who would be interested in such information?

‘A Search Warrant on a Leash’

Challenging the reversal of Harris’ conviction before the U.S. Supreme Court, the state of Florida (joined by the Obama administration) argued, in effect, that judges should automatically accept a police dog as reliable. “The handlers themselves are going to be in the best position to know the dogs and evaluate their reliability,” Gregory Garre, the lawyer representing Florida, told the Court in October, “and they have a strong incentive to ensure the dogs are reliable.” So according to Garre, if a cop trying to justify a search vouches for the reliability of a dog whose alert supposedly justifies that search, there is no reason to question him.

Garre argued that “the most important thing” in judging a dog’s reliability “is successful completion of proficiency testing.” How does a judge know a dog has successfully completed proficiency testing? Because the police say so. When training is done by “actual police departments,” Garre said, “this Court ordinarily would presume regularity.” And what constitutes “regularity” when there are no uniform standards? “We would ask whether or not the dog successfully completed training by a bona fide organization,” Garre said. “We don’t think it’s an appropriate role for the court to delve into the contours of the training.…You would have to accept it…on its face.”

And why wouldn’t you? After all, Justice Antonin Scalia observed, “if the reasonableness of a search depended upon some evidence given by a medical doctor, the court would not go back and examine how well that doctor was trained at Harvard Medical School.” Then again, Harvard Medical School, unlike a police department’s dog training program, is accredited, based on uniform national criteria, by the American Association of Medical Colleges, and its graduates must satisfy objective, transparent tests to be licensed and certified in their specialties. Furthermore, unlike police dogs, doctors can talk, which means they can testify and be cross-examined regarding their qualifications and the reasons for their conclusions. 

Scalia seemed genuinely flabbergasted not only by the idea that a dog might be inadequately trained but also by the suggestion that police might exaggerate a dog’s reliability. “Why would a police department want to use an incompetent dog?” he asked Glen Gifford, the assistant public defender representing Harris. “What incentive is there for a police department?” Gifford patiently explained that “the incentive is to acquire probable cause to search when it wouldn’t otherwise be available.”

It should be obvious why a police officer might value a dog that alerts promiscuously, giving him license to search anyone he deems suspicious. “It’s a search warrant on a leash,” Myers says. “It’s such an enormous back-door entry into search and seizure without a warrant.”

A brief filed by the Institute for Justice in Harris highlights another motive: If a dog’s alert justifies a search, it can also justify seizure of property allegedly tainted by illegal drugs. “There are countless examples of police seizing large sums of cash based on nothing more than a positive dog alert,” the brief notes, even though contamination of currency with cocaine and other drugs appears to be pervasive. Since police departments typically share the proceeds from civil forfeiture, they have a direct financial interest in dogs that facilitate it.

Yet few of the justices seemed inclined to elaborate on the distinction between “a well-trained narcotics detection dog,” entrusted with the power to authorize searches and seizures, and any old dog grabbed from the pound by a police department and presented as such. Jeff Weiner, the Florida defense attorney, says, “I only hope the Court will realize how incredibly naïve they have been and how they have given law enforcement a green light to do away with the Fourth Amendment merely by uttering the magic words, ‘My dog alerted.’ ”

Judges around the country commonly accept a dog’s alert, by itself, as sufficient basis for a search, but the Supreme Court has never explicitly said it is, although passing comments in a couple of decisions can be read that way. Furthermore, the Court has always resisted precisely defining probable cause, the standard for issuing a warrant (or for upholding a car search, which can be conducted without a warrant but is supposed to meet the same test). Probable cause, the Court has said, means there is “a fair probability” that evidence of a crime will be discovered. It is not clear how reliable a dog must be to satisfy that standard. A 4 percent chance of finding contraband based on a dog’s alert, as in the Florida roadblock operation, presumably would be too low. What about a 20 percent chance, as in the latest data from New South Wales, or a 44 percent chance, as in the Chicago Tribune study?

“Who determines when a dog’s reliability in alerting has reached a critical failure number?” Justice Sonia Sotomayor asked during the oral arguments in Harris. “I’m deeply troubled by a dog that [accurately] alerts only 12 percent of the time.…That seems like less than probability.” Gifford observed that “in the lower courts, once you get below 50 percent, probable cause is much less likely to be found.” The 2006 Australian study found that the accuracy of 17 police dogs used to sniff out drugs on people ranged from 7 percent to 56 percent. This wide variation underlines the importance of assessing the ability of each dog-and-handler team on an individual basis, rather than accepting blanket assurances that all dogs and handlers have been properly trained.

‘Franky’s Nose Is Not Technology’

While the Supreme Court seemed reluctant to require greater skepticism of such claims, the justices were more receptive to concerns about using dogs to identify homes containing drugs. In fact, Scalia, the justice who was most clearly hostile to questions about police dogs’ professional credentials in Florida v. Harris, was the one who was most indignant about bringing them to people’s doorsteps without a warrant in Florida v. Jardines.

On the morning of December 6, 2006, based on an unverified Crime Stoppers tip received a month earlier, Miami-Dade Police Detectives William Pedraja and Douglas Bartlet approached the Princeton, Florida, home of Joelis Jardines, where the tipster had said marijuana was growing. They were accompanied by several DEA agents and Franky, a chocolate Labrador retriever. Bartlet brought Franky up to the entrance of the house, where he sniffed around for a minute or two before sitting down at the front door. After Bartlet announced that Franky had alerted to the house, Pedraja approached the front door and claimed he could smell marijuana, although Bartlet said he did not. 

Based on Franky’s alert, Pedraja obtained a search warrant that police executed later that day, finding 179 marijuana plants, growing equipment, and Jardines escaping out the back door. Charged with trafficking in more than 25 pounds of cannabis, a first-degree felony punishable by up to 30 years in prison, Jardines successfully argued that the evidence against him should be suppressed. The Florida Supreme Court concluded that the search of Jardines’ home was illegal because Franky’s inspection of the area near the front door was itself an illegal search.

Since the U.S. Supreme Court has said that using a dog to check luggage at the airport or a car during a traffic stop does not count as a search, you might think that Franky’s sniffing at Jardines’ doorstep would not qualify as a search either. But during oral arguments the justices seemed inclined to agree that homes are different. Jardines’ lawyer, Howard Blumberg, argued that “when a police officer goes up to the front door with a narcotics detection dog” he has “physically trespassed, because there is no consent to do that, onto a constitutionally protected area, the curtilage of the home”—that is, the area immediately surrounding it. That argument appeared to be crafted with Scalia in mind. In U.S. v. Jones, the 2012 decision in which the Court ruled that tracking a vehicle by attaching a GPS device to it requires a warrant, Scalia’s majority opinion emphasized the physical trespass required to install the device. “If you…follow the test set forth in Jones and apply it to what happened here,” Blumberg said, “it is a trespass.”

Scalia signaled that he was receptive to this approach even before Blumberg got up to speak. “Police are entitled to use binoculars to look into [a] house if the residents leave the blinds open,” he told Gregory Garre, who represented Florida in this case as well as Harris, but “they’re not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point.…Why isn’t it the same thing with the dog?…It seems to me crucial that this officer went onto the portion of the house…as to which there is privacy and used a means of discerning what was in the house that should not have been available in that space.…Police officers can come there to knock on the door…[but] when the purpose of the officer’s going there is to conduct a search, it’s not permitted…He’s going there to search, and he shouldn’t be on the curtilage to search.”

Scalia also wrote the majority opinion in Kyllo v. U.S., the 2001 case in which the Court held that using a thermal imager to measure the heat radiating from a home (as evidence of grow lamps) requires a warrant. Justice Ruth Bader Ginsburg read Garre a passage from that decision, which she suggested applies to drug-sniffing dogs as well: “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.”

Garre responded by arguing that “Franky’s nose is not technology,” since he is merely “availing himself of God-given senses.” But in its natural state, Franky’s nose does not tell police when molecules of certain chemical compounds are floating through the air; that requires human intervention, based on technical knowledge, aimed at turning a descendant of wolves into a law enforcement tool. “The dog per se is not a technology,” says Myers, but “the dog is part of a technology that has been applied to a particular use.” The main point, when it comes to expectations of privacy, is that Franky, like a thermal imager, enables police to find evidence they could not detect with their own unaided senses. They can thereby obtain information about what is happening inside a home that they otherwise could get only by entering it.

‘Dogs Are Not Magic’

But dogs do not perform this function inerrantly. The notion that a dog sniff is not a search and the notion that a dog sniff justifies a search are both based on overblown notions of canine capabilities, a fact that makes the implications of those ideas all the more troubling. A cop already has the authority to stop cars for minor (and possibly imagined or invented) traffic violations that people routinely commit. If you give him a dog he can deploy during any stop to justify a search, a dog whose alerts may be imagined, invented, or triggered by deliberate or subconscious cues, he now has the ability to search cars at will. 

In Caballes, the decision that gave police this ability, Justice Souter warned that “an uncritical adherence to Place [which held that a sniff is not a search] would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks.” During the oral arguments in Harris and Jardines, Justices Sotomayor and Ginsburg likewise worried aloud about police taking dogs from door to door in an apartment building or from house to house on a street. Garre, Florida’s lawyer, argued that limited resources and “community hostility” would discourage such operations.

But they are already happening. In 2011, for instance, The Roanoke Times reported that police in Pulaski, Virginia, had been using dogs to randomly search for drugs in apartment complexes “for a couple of years.” Last spring the Fargo Housing Authority in North Dakota announced plans for similar sweeps. Students as young as 6 have been randomly subjected to dog sniffs at public schools throughout the country for decades.

Such olfactory dragnets would be disturbing enough with dogs that are 100 percent accurate. But with actual dogs, which could be wrong most of the time or even nine times out of 10, they are little more than pretexts for police to search wherever and whenever they please. 

“Dogs can be a very good and useful tool,” Myers says. “But people have gotten both lazy and superstitious about that use. Dogs are not magic.”  

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  • Sevo||

    "How cops and their canines manufacture probable cause"

    Simple:
    "Hey Bullet, do you smell something? Sure you do Bullet! Good Bullet!"

  • GILMORE||

    Obviously, animals are beings pure of heart who could never have any crass, malicious intent when deciding you have something that smells interesting enough to search your person, house, or car

    We should have criminal courts judged the same way: a jury of dogs, who if they lick their own balls, sentence you to death.

  • SugarFree||

    I'd rather be judged by twelve than leg-humped by six.

  • sarcasmic||

    Worst that could happen when being judged by twelve? Prison.
    Worst that could happen when being leg-humped by six? Protein stains.

  • Heroic Mulatto||

  • sarcasmic||

    I'm glad I hover over links before clicking (or in this case not clicking) them.

  • Heroic Mulatto||

    Pussy.

  • sarcasmic||

    If not wanting to click on something that says "alyssa-rosales-loses-bet-and-dignity- has-sex-with-dog-posts-video-on-facebook- warning-extremely-nsfw/" while at work makes me a pussy, than a pussy I am.

  • Heroic Mulatto||

    By pussy, I mean you must be a cat person.

  • sarcasmic||

    By pussy, I mean you must be a cat person.

    As a matter of fact I am. Never had much of a use for dogs.

  • GILMORE||

    "...than a pussy I am

    BARK! BARK! BARK! BARK! BARK! BARK! BARK! BARK! BARK! BARK!

  • Bill Dalasio||

    I knew there'd be an alert around here somewhere!

  • Heroic Mulatto||

    Until Canine-Americans can be cross-examined in a court of law, the reactions of drug dogs should not be admissible as evidence.

  • C. S. P. Schofield||

    I cannot imagine any conceivable outcome of the War onDrung, even were it effective, that would justify what it has cost us in terms of rights and protections.

  • sarcasmic||

    The purpose of the war on drug users is to get rid of rights and protections, and to establish a police state.

    Remember that the purpose of government is to combat injustice. When there aren't enough criminals to justify the police state, then criminals must be manufactured. Thus the war on drugs, and lately the war on gun owners.

  • Night Elf Mohawk||

    It might save one child's life.

  • Doctor Whom||

    Tell that to the grieving parents whose children have died, screaming in agony, from emjay overdoses. I'm sure it must happen.

  • AlgerHiss||

    That courts ever allowed this to get to this point is disgusting.

    Still the best words you can utter to any cop is:

    Am I being detained?
    Am I free to go?
    No, you do not have my consent to search anything.

    Repeat over and over and over....then get the Hell away from these monsters.

  • ||

    cue: elephant man

    I am not a MONSTER.

    i am a human being.

    and yes, if you are a felon carrying a firearm, that's a choice arrest, i'll make any day of the week (although philosophically, i have a problem with NON-violent felons losing their right to carry. convicted armed robbers,otoh are predatory scumbags and it's a hella choice arrest to catch one carrying a firearm).

    just as an aside

  • Death Rock and Skull||

    fuck you

  • Heroic Mulatto||

  • sarcasmic||

    That's funny!

  • Emmerson Biggins||

    People, it's right there in the Constitution:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Unless you've got a dog, and he barks. Then it's totally OK.

  • Johnimo||

    Yes, Emmerson, it's right there next to the National Problems Amendment: "The Congress and the States shall have the power to make all laws necessary to solve any big problems that the people shall deem to encumber their unfettered happiness."

  • ||

    one of the side effects of our legalization of MJ in WA is that drug dogs are no longer utilizable. since they were trained to hit on marijuana among other drugs, and mj is now LEGAL, a dog "hit" does not = probable cause anymore. this is a wonderful side effect/unintended consequence of the legalization of MJ - drug dog hits no longer lead to probable cause.

    maybe in the future they will train drug dogs to hit on drugs NOT including mj but at least for the foreseeable future, here in libertarian WA (yes, we have a right to privacy in our constitution and our local cops are much more restricted in search and seizure than most other states) no more drug dogs for traffic stops etc.

    they still may be used in search warrants, etc. to help find hidden caches etc. but their use as a DEVELOPER of probable cause is no longer valid.

    booya freedom

  • Capt Ace Rimmer||

    I'm so jealous.

  • ||

    come to WA. between our libertarian state constitution (no pretext stops, no search incident of motor vehicles, severely limited access to curtilage/overhead surveillance by helicopters/use of flir), and initiatives like the legalization of MJ, plus such choice tidbits as NO state income tax, it's a good place to be.

  • The Last American Hero||

    Unless you are a mentally disabled woodworker, or a Mexican. Dunphy's pals love to beat the mexican piss out of people.

  • ||

    yawn. troll-o-meter:.01

    god forbid a cop used some harsh language "mexican piss" with a suspected violent criminal. omg, i'm so offended and it's just such a horrible thing. i hope he recovered from such mean words. i mean, it's such a travesty. "mexican piss". clearly, a term that is only appropriate when referring to corona.

    btw, i am not aware the woodworker was mentally disabled.

    as far as i know he was mentally sound. he was an alcoholic, but that is not a "mental disability".

  • ||

    If in doubt as to mental handicap, it's always best to beat them to death first and ask questions later.

  • Capt Ace Rimmer||

    I might just do that. I have connections with that state and its wise people. My dad actually met my mom in WA. My older brother was born there. My dad was a border agent in WA before he moved to New Orleans, LA to attend law school. Alas, I was born in Louisiana. Help me.

  • Capt Ace Rimmer||

    Drug war is evil.

  • GILMORE||

    Emmerson Biggins| 1.31.13 @ 2:35PM |#

    People, it's right there in the Constitution...

    Uh, "Hellooo?" - that OLD piece of paper, like, written by people with Wigs and Slaves and used Whale Oil as a prime energy source??

    I think its already been clearly established by intelligent, reality-based journalists in objective, non-partisan publications like The New York Times, Slate, The Nation and Mother Jones, that the constitution is no longer relevant to our modern day needs and issues, and its time to Move On!! Stop living in the past! And besides, unless you have something to hide, there's no reason to fear a little dog sniffing your junk... what do you have to hide!?

    /Statist Progtard

  • ||

    inherent in the definition of a search is an incursion into a place where there is a reasonable expectation of privacy. what dogs do is sniff the air OUTSIDE a place where there is a privacy interest. the founders never considered dog sniffs, but they never considered the intertoobs either. there is a difference between looking into a place where there is a privacy interest, and sniffing the air outside same. one could argue that there is no privacy interest in the air outside a motor vehicle for instance.

    of course my state, having a right to privacy, which the federal constitution does not have, takes a different viewpoint. what the federal constitution needs is a right to privacy. the 4th amendment, contrary to some belief, does not protect privacy. it protects against UNreasonable searches and seizures but nowhere mentions privacy. nor, does it require a warrant for searches.

  • Emmerson Biggins||

    So if a cop is "pretty sure" you have pot, too bad, you still need consent or a warrant. (I realize that is fiction is anyways, but let's assume it as a hypothetical).

    But if a cop is "pretty sure" that a trained animal is "pretty sure", then you don't need consent or a warrant.

    That is totally sensible.

  • ||

    no, a cop does not need a warrant (in most states) if he has PC for a motor vehicle. it's referred to as the MV exception, established as the Carroll Doctrine iirc and/or under Ross and other SCOTUS caselaw.

    again, a cop (in most states) does not need consent or a warrant to search a motor vehicle (assuming it was stopped on a way, and thus there is exigency because it is a moving conveyance bla bla). he merely needs PC. he can also search incident to arrest

    this is NOT the case here in WA. we need a warrant or consent and cannot search a motor vehicle incident to arrest or based on PC. why? because our state constitution establishes a right to privacy, one that does not exist in the 4th amendment

    this is one reason why... WA is better

  • Emmerson Biggins||

    again, a cop (in most states) does not need consent or a warrant to search a motor vehicle

    as long as that is the case, then ya, all the dog talk is superfluous anyways. To me, that is an unreasonable search and seizure and plain violation of the 4rth.

  • ||

    many agree. unfortunately, the scotus doesn't and it;'s long established caselaw.

    regardless, it aint case law in WA state, which is why i advocate people move here for a more "libertarian experience"

  • Death Rock and Skull||

    "one could argue that there is no privacy interest in the air outside a motor vehicle for instance"

    That's not how the dog search is being used. If this is the claim being used, then what a dog smells outside someone's possessions shouldn't mean shit about what is inside that person's possessions. Fuck you and your appeasing approval of shitty precedent.

  • MisterDamage||

    In order for a dog to sniff outside a motor vehicle, the vehicle must be prevented from being driven away while the dog does so. That, right there, is a seizure. One without probable cause due to the fact that the very purpose of the sniff is to create same, literally out of thin air

  • dan'o||

    I was pulled over around midnight roughly an hour north of Las Vegas. After politely refusing a voluntary search, my passenger and I were ordered to stand in the desert ~20 feet off I-15. The motherfucker dropped a Cocker Spaniel INTO my car through an open window. He had the audacity to try and sell me on how the dog was "going nuts" in a vehicle which had never carried an illicit substance. I called his bluff and he eventually sent me on my way.
    The only silver lining came when I was going to file my complaint, and the incident was without record... including the speeding ticket they gave me as a parting fuck you.

  • Tex74||

    I have to say, I'd probably be a libertarian until we started talking about foreign policy and dope. Libertarians love their weed. Point being, this is an issue with a local department and or just a local cop abusing his duties. I've never heard of a "passive" indicator either. Police are not MONSTERS and we couldn't care less if you smoke your weed at the house. This guy should file a complaint at that department so they can scrutinize this cop.

  • sarcasmic||

    Police are not MONSTERS

    Tell you what. Eves drop on some cops who have had a few beers and get back to me.
    If they are anything like the drunk cops I've listened in on, you'll hear excited tips and pointers for choking people, some one-upmanship on injuries inflicted, giggling at someone peeing their pants after putting a gun to their head, and maybe one will complain that he's never had the opportunity to kill someone. En vino veritas.

    Cops are not nice people. They are violent thugs who are always looking for an excuse to hurt someone.

  • ||

    copsw engage in gallows humour just like others in similar profession (e.g. ER docs)

    ime, cops are on the whole, very compassionate , caring NICE people.

    they are engaged in a profession where they, much like ER docs and others who use gallows humour, they are exposed to a violent, seedy, bloody, cynical side of life, and humour, exaggeration, etc. is a defense mechanism, long recognized by psychologist

    when i became a cop i was pleasantly surprised at the routine acts of compassion, heroism, caring, etc, i witnessed and i realized that cops are on the whole, a great group of people i'm proud to work with

  • sarcasmic||

    Complaining about never having the opportunity to kill someone is not humorous.

    Excitedly bragging about putting people into the hospital is not humorous.

    Taking pleasure in choking people is not humorous.

  • The Last American Hero||

    Except for those guys that killed the woodworker out of compassion. Or the guy that got his head smashed in in Belltown compassionately. Or how about those guys that stomped on the Mexican guy's head and shouted racially charged expletives? Guess that's just gallows humor. Or how about the other cops that willfully look the other way when these things happen or do nothing to intervene?

  • DJK||

    Exposed to violence, my ass. The vast majority of police officers are mainly engaged in shit like ticketing speeders and handing out minor consumption tickets. Even these motherfuckers carry loaded pistols at all times.

  • sarcasmic||

    Even these motherfuckers carry loaded pistols at all times.

    Of course they do. Most of what they do is immoral. Lawful, but immoral. People are justified in feeling outrage when someone commits an immoral act. Thus the motherfuckers carry loaded pistols to protect themselves from those who may be justifiably outraged at their immoral acts.

  • DJK||

    Also, if I remember correctly, cops don't even come close to cracking the list of people working in the most dangerous jobs in the US. They fall behind truck drivers, machine operators, etc. Spare me the danger bullshit.

  • itsnotmeitsyou||

    Dunphy, I've met a few cops like you. Great guys, genuinely care, sorry when they're wrong. Unfortunately, all of the cops I've dealt with in an official capacity have been exactly the opposite.

    I once had about 15 cops show up and my house in the middle of the night, drag my friends and I out into the cold (wouldn't let us retrieve our jackets), threaten that we were all going to jail, handcuffed us in the back of cop cars while they searched the property (claiming they had PC for a search). It was 1 1/2 hours into this fiasco before they even told us why they were there. Apparently some local girl went missing and my friends car fit the description of the vehicle she was last seen in. (a 1989 brown Grand Am. real rare car, I know). We were grilled for 5 hours, manhandled, and humiliated. When they didn't find anything, they threatened us with prison for "obstructing justice" and even started moving the car like they were driving us in. They eventually let us all go and left, but insisted until they left that we were all kidnappers/rapists/murderers.

    When I tried to file a complaint, I was threatened again and subsequently harrased. No one cared that my civil rights had been shit on or that these cops were out of control. They all just circled the wagons and treated ME like the criminal.

  • sarcasmic||

    Dunphy, I've met a few cops like you. Great guys, genuinely care, sorry when they're wrong. Unfortunately, all of the cops I've dealt with in an official capacity have been exactly the opposite.

    I'll bet that if you met those "great guys" in an "official capacity", you'd find that they're no different than the rest.

  • GILMORE||

    when i became a cop i was pleasantly surprised at the routine acts of compassion, heroism, caring, etc, i witnessed and i realized that cops are on the whole, a great group of people i'm proud to work with

    my only time spent in a jail cell was a result of a cop at the end of a shift looking for *anything* to throw at someone, who illegally searched everyone and the vehicle sans cause, and only busted a passenger (me) who had the audacity to refuse personal search... upon finding nothing on me (after cuffing and de-panting) ...he still stuck me for the 'possession' of weed he'd found under the seat of the car owner.

    why? dunno. i suppose he let the actual guy responsible walk with the message, "the real crime is pretending to have rights, so bend over when told". it was informative. as was the 3 hours of overtime he clocked watching tv with me shackled to a bench

    a 'few bad apples', im sure. The rest are all saints.

  • GILMORE||

    p.s. he found weed AFTER i was cuffed. my crime was 'failure to comply to arbitrary commands'

    pps i beat the shit out of the actual weed-owner later. it didnt really make me happier. he was a dick anyway. he was just giving me a ride home.

  • Meerkatx||

    I guess Kelly Thomas was beat to death because beating a mentally ill man to death is compassionate.

  • ||

    The way Donna Watts was treated by Miami police is a prime example of how nice police are. They harassed a fellow officer just because she busted a cop.

  • ||

    No, libertarians love not sending people to jail (and subsequently wasting hundreds of millions of tax dollars to keep them there) for victimless crimes. Go back to FreeRepublic.

  • Death Rock and Skull||

    Or back to Volokh with their completely amoral jacking off about mundane precedent where they "value his expertise" in matters not concerned with the morality of the shit he does.

  • Tex74||

    Oh and as far as the title of this article "This dog can send you to jail". It's your dope that sends you to jail, not the dog.

  • Emmerson Biggins||

    no, it's the police that send you to jail. And it's the prison guards and locked doors that keep you there.

  • ||

    ultimately, its the law that sends you there. the police didn't write the drug laws. the legislature did.

    in our state, we have at least ended the war on mj via citizen initiative, but the blame for the war on drugs rests with the lawmakers who made it law in the first place. i'd much prefer not having to enforce drug laws, but i didn't write the evil war on drug laws.

  • Emmerson Biggins||

    You keep telling yourself that. It's probably necessary for your sanity.

  • ||

    not at all. it's called rule of law. it's a fact, not arguable, that cops didn't write the drug laws.

    im happy to work in a state that has legalized mj, but i certainly am not going to take blame for a war on drugs that i did not start. on rare occasion, i have to enforce drug laws. like i said, my state is libertarian enough where we aren't doing searches of MV's etc. very often and thus not finding "hard drugs" very often, but i accept rule of law means that i have to enforce laws i don't agree with.

    blame the legislature. they created the war on drugs

  • Tex74||

    It's amazing how little people know about their own government. I have to explain (as I'm sure you have) all the time how our government works to people. Cops don't make the law, we enforce it as a part of the executive branch. Politicians pass law as a part of the legislative branch. Blame your politician if you don't like the law and vote for one that represents you best. And if you still don't like it, move somewhere else.

  • DJK||

    The Nuremberg defense. Love it.

  • sarcasmic||

    "Befehl ist Befehl"

  • DJK||

    Tex, can you please explain the nature of American government to me? Isn't it true that it was found on the notion that majorities shouldn't have the ability to trample on the rights of minorities simply because they got the votes to do so? How does this square with your advice to get enough legislators to do my bidding?

  • Emmerson Biggins||

    It's amazing how pointing out simple facts like "enforcing law = sending people to jail (sometimes)" results in defensive patronizing bloviating from people who wish to abandon their status as sentient beings so that they can avoid the feeling that they are morally responsible for their own actions.

  • Capt Ace Rimmer||

    You have a duty to arrest and I have a duty to disobey. Such is life.

  • willfullyemployed||

    we seem to leave out important factors, such as checks and balances. Our ledislatures can create what ever Law they can muster up, Our court system is the checker of constitutionallity of the Laws. Our Law enforcement agents are not part of the executive branch, they are employees that are entrusted with carring out orders in a lawful and strickly documented manner.

  • Emmerson Biggins||

    I never argued that cops wrote the laws. I only pointed out the plain fact that they enforce them. It's kind of like arguing that water is wet ... I dunno what else I can say about it.

    What you see in Rorschach blotch after that is up to you.

  • Meerkatx||

    You're right it's the law. If the cops had their way they would just shoot most people.

  • DenverJay||

    this

  • ||

    McGruff the Crime Dog sez: Help us take a Bite out of the Fourth Amendment, kids!

  • sarcasmic||

    Nice!

  • ||

    McDunphy Teh Supertrooper sez: Laws are Lulz n I swore to uphold and support the law take a huge shit on ur civil liberties.

  • DenverJay||

    My "this" was directed at "no, it's the police that send you to jail. And it's the prison guards and locked doors that keep you there."

  • DenverJay||

    Oh, and for Tex74, you swore to uphold the constitution. You have a legal and moral obligation to NOT enforce unconstitutional laws, which I consider the WOD to be. I mean, if we needed an amendment to prohibit alcohol, why can the government outlaw MJ? So don't give me any of that Nazi "we were just following orders" bullshit

  • RandomJackass||

    So these judges advocating for the "warrant on a leash" are basically saying that a canine with minimal training is just as qualified to establish probable cause as a human judge with years of schooling and experience. That actually makes sense.

  • sarcasmic||

    Warrants are pretty much rubber stamped anyway, so what's the difference?

  • DenverJay||

    Ja, but ve must follow the proper procedures, nien?

  • Dan||

    Warrants are rubber stamped but only because the officers claim to have probable cause. When that probable cause is later found to be fabricated the warrant is invalidated and the results of the search inadmissable.

    That doesn't exist with the dogs. If they alert (or someone claims they did) that is sufficient for a warrantless search the validity of which can never be questioned. At least that's how the supreme court sees it.

  • Lincoln||

    Sounds like the nation's very own Stop-and-Frisk . . .

  • Semper||

    Who needs dogs? Me at the airport this morning while being fondled "do you have a warrant for that". Blueshirt Thug: No sir, this is a warrentless search".
    Hell, in NY they don't even have to talk to you, they can just do as they please.
    Laws are for the little people, not for the rulers.

  • Public Citizzen||

    The question comes immediately to mind how this officer determined that the dog gave a passive alert. What was the ~exact~ signal?
    What level of training does the handler have? How long has he worked with this particular animal? What percentage of "alerts" by this team of dog/handler have resulted in a positive search [defined as recovering prohibited drugs].
    How often has the dog "alerted" for something like a ham sandwich?
    I want to see the dog that won't at least pause for a second whiff of a Lebanon Bologna.

  • ||

    The question comes immediately to mind how this officer determined that the dog gave a passive alert. What was the ~exact~ signal?

    The lack of signal is exactly the passive alert.

  • DenverJay||

    If you were stupid enough to smell like bologna, then you can't expect the authorities to treat you kindly! I mean, its your own damn fault! BTW, anybody who eats bologna deserves to be treated like a criminal, that shit is nasty

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  • Dan||

    The excuses for why they falsely alert are nonsense. They've done dozens and dozens of studies now in controlled environments with known variables and found dogs to be no more reliable than flipping a coin.

    And that's just talking about the honest failure rate of the dogs themselves. It doesn't acount for all of the corrupt police that train their dogs to alert on command, or who claim their dog alerted when it never did.

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  • theforester||

    SCOTUS is hard to figure out. This case seems to be cut and dry--no reasonable suspicion, no search warrant, just a dog's "alerting." Appears to be really damaging to the 4th Amendment. And then there's the whole inability to cross-examine the "witness."

    http://breakingthelawtv.com/a-.....to-prison/

  • URDRWHO10||

    Over breakfast this morning I was just thinking about dogs, traffic stops and loss of freedom.

    What got me thinking was how we accept inconveniences today that in the 60's when I was in school were only a portrait of Nazi Germany.

    I remember seeing the films about Nazi Germany and how they controlled people. I remember seeing the police dogs that were used, the stops where you were asked to show papers. Today we have police dogs that sniff us without regard to individual freedom. We are stopped without reason at DUI traffic stops and we all accept it. At the heart is the idea that it keeps us safe but disregards the heart of America, freedom. Freedom and its deep roots are withering and people are giving it all up for the shadowy figure called safety. The problem is in the future, once that shadow figure comes into clear view we will see a devil in disguise. Society will be chained to a devil that it never picked and freedom will be dead.

    It is the weak that do not stand up against this sort of nonsense where an officer can keep you detained by the actions of a canine. It is the weak that support roadside checkpoints.

    America, the experiment was grand but I fear it is over.

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  • Gd86||

    The United States Supreme Court recently decided Jardines. March 26, 2013 United States Supreme Court ruled that the dog sniff conducted on the porch at the front door of a home constituted a search which would require probable cause and a warrant to lawfully conduct. Although there are a few narrow exceptions, Under the fourth amendment of the United States Constitution a warrantless search conducted on a home is an unreasonable search. It is the very type of unreasonable government intrusion of privacy that stands at the core of the fourth amendment.

    The court finally recognized the degree of intrusiveness involved with a "dog sniff" search at a home. If you saw a house in your neighborhood surrounded by law enforcement both federal and state, and there was a narcotics canine with its handler at the door would you automatically assume that whoever lives there committed a crime?
    If the USSC didn't rule that it was a search, who's to stop law enforcement from arbitrarily conducting these searches on a whim or whenever they feel like it? I think the USSC absolutely got this one right despite the close split decision.

  • alaamiah||

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