Where Does a Cop With an 80-Pound Dog Search?

Anywhere he wants.

Imagine that a police officer, after taking it upon himself to search someone's car, is asked to explain why he thought he would find contraband there. "A little birdie told me," he replies. 

Most judges would react with appropriate skepticism to such a claim. But substitute "a big dog" for "a little birdie," and you've got probable cause. 

Or so says the U.S. Supreme Court, which last week unanimously ruled that "a court can presume" a search is valid if police say it was based on an alert by a dog trained to detect drugs. The Court thereby encouraged judges to accept self-interested proclamations about a canine's capabilities, reinforcing the alarmingly common use of dogs to justify invasions of privacy. 

Drug-detecting dogs are much less reliable than widely believed, with false-positive error rates as high as 96 percent in the field. A 2006 Australian study found that the rate of unverified alerts by 17 police dogs used to sniff out drugs on people ranged from 44 percent to 93 percent. 

Police and prosecutors commonly argue that when a dog alerts and no drugs are found "the dog may not have made a mistake at all," as Justice Elena Kagan put it, writing for the Court. Instead it "may have detected substances that were too well hidden or present in quantities too small for the officer to locate." 

This excuse is very convenient—and completely unfalsifiable. Furthermore, probable cause is supposed to hinge on whether there is a "fair probability" that a search will discover evidence of a crime. The possibility that dogs will react to traces of drugs that are no longer present makes them less reliable for that purpose. 

So does the possibility that a dog will react to smell-alike odors from legal substances, distractions such as food, or cues from their handlers. Given all the potential sources of error, it is hard to assess a dog's reliability without looking at its real-world track record.

That is why the Florida Supreme Court, in the 2011 decision that the U.S. Supreme Court overturned, said police should provide information about a dog's hits and misses. "The fact that the dog has been trained and certified," it said, "is simply not enough to establish probable cause," especially when, as in most states, there are no uniform standards for training or certification. 

Kagan, by contrast, minimized the significance of a dog's success at finding drugs in the field. She said police testing in artificial conditions is a better measure of reliability, even though handlers typically know where the drugs are hidden and can therefore direct the animals to the right locations, either deliberately or subconsciously. 

Instead of requiring police to demonstrate that a dog is reliable, this decision puts the burden on the defense to show the dog is not reliable through expert testimony and other evidence that casts doubt on the training and testing methods used by police. But experts are expensive, and police control all the relevant evidence. 

Police even determine whether the evidence exists. Many departments simply do not keep track of how often dog alerts lead to unsuccessful searches, and this decision will only encourage such incuriosity. 

The Court previously has said that police may use drug-sniffing dogs at will during routine traffic stops and may search cars without a warrant, based on their own determination of probable cause. Now that it has said a dog's alert by itself suffices for probable cause, a cop with a dog has the practical power to search the car of anyone who strikes him as suspicious.

Even the question of whether a dog did in fact alert may be impossible to resolve if there is no video record of the encounter, which is often the case. As Florida defense attorney Jeff Weiner puts it, the justices "have given law enforcement a green light to do away with the Fourth Amendment merely by uttering the magic words, 'My dog alerted.'"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    if the dog authorises the search, does that mean the police officer sniffs my groin?

  • Fist of Etiquette||

    "When was the last time that dog was calibrated?"

  • db||

    "Your Honor, just yesterday he successfully alerted on my signal."

    "I'll allow it."

  • Radioactive||

    ruby doo!!!

  • WTF||

    The problem is that dogs want to please their owners/handlers, so will do whatever it is they will receive reinforcement for. Since the handler wants the dog to alert, whether there are drugs or not, the dog will alert to please the handler, whether there are drugs or not. Yet the Nazgul think this is just fine for allowing a search.

  • Whahappan?||

    They don't care, because they know they will never be the subject of a baseless search, or any other kind.

  • Radioactive||

    do you want to do a body cavity search on an 80 lb german shepard?

  • ||

    The problem is that dogs want to please their owners/handlers, so will do whatever it is they will receive reinforcement for.

    Alternatively: after witnessing a few of their fellow dogs shot, they realize that there's a stick beside the carrot.

  • Cliché Bandit||

    Nazgul...how the hell have i not made that connection before.
    rollin' over here

  • Question of Auban||

    You don't even need a dog for warrantless eavesdropping http://www.guardian.co.uk/comm.....j-argument

  • Radioactive||

    yeah and it's real hard to hold the dog up to the door for very long!

  • sarcasmic||

    This is a sign that the war on drug users is here to stay, no matter what any of those uppity state governments might do.

  • Ted S.||

    It's very clear;
    Our War is here to stay.
    Not for a year;
    Forever and a day

  • TingJing||

    So, who comes up with all that crazy stuff? Wow.

    www.CompleteAnon.da.bz

  • Vapourwear||

    I distninctly remember that I was tought in law school that the states are free to impose greater requirements for due process to be provided, but couldn't fall below the constiutional minimum.

    That being the case (if it wasn't just full on propaganda), I don't really see how they can "overturn" a FL decision that imposes greater due process requirements. Isn't FL still free to say "yeah, well, it's not a source of probable cause in FL, so....."

  • Zeb||

    I would guess that the decision was based on the federal constitution and not Florida law.

  • GroundTruth||

    Funny, although only an armchair constitutional scholar, I had the same understanding.

    I suspect it has more to do with the court following public opinion and political pressure rather than reading the plain text and enforcing it (or not, in this case) according to the common meaning of all words and phrases.

  • Adam330||

    FL doesn't have a freestanding search clause in its constitution. It's explicitly tied to the fourth amendment and the us supreme court's interpretation thereof. See Article I, Section 12 of the FL constitution.

  • Vapourwear||

    Got it, in PA we have this:

    Art. 1 § 8. Security from searches and seizures.
    The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no
    warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

  • Rich||

    The Justices should be required to have trained dogs root around under their robes before every Court session. Can't be too careful when it comes to drugs and explosives; and if their Honors have nothing to hide, why should they object?

  • WTF||

    Silly man, that sort of thing only applies to the little people.

  • Radioactive||

    ok we'll get little people to root around under their robes before every court session. there are you happy now?

  • The Late P Brooks||

    This is just depressing.

  • AlgerHiss||

    This entire “police k-9” thing is completely out of control. Besides all of the awful court decisions we’re all aware of, now, a “police dog” is considered a human: Cops shoot and kill man that stabbed and killed a k-9:

    http://www.startribune.com/loc.....ml?refer=y

    How does this story fit in with Radley Balko’s “puppycide” thing?

  • Whahappan?||

    Yes, to the police and politicians, a K-9 "Cop" is worth more than an untermensch.

  • Vapourwear||

    "K-9"

    Love how the .gov can come up with a stupid acronym for a single word.

  • Capt Ace Rimmer||

    My blood is boiling with contempt.

  • Vapourwear||

    Careful, they can put you in a cage for that.

  • WinstonSmith714||

    Lodging in Collinsville

    "The video is stunning. Reichert actually admits that he sometimes wipes marijuana on cars parked in the lots of Collinsville hotels. He says he does this as part of a training exercise for the dog. He also asks employees for tips about suspicious guests from out of state. And he concedes that it's possible someone on whose car he has "wiped" marijuana might later get pulled over and subjected to a drug dog sniff."

    http://www.huffingtonpost.com/.....38575.html

  • ||

    Jury nullification. Keep spreading the word.

    CB

  • My Dog Bites Better Than Yours||

    I try not to assume a "conspiracy" when the situation can be explained by stupidity. But, how the hell can ALL these smart people be this stupid? Have they never owned a dog?

  • Radioactive||

    where the hell did you ever get the idea that these people are smart? casue they told you so?

  • Brubaker||

    There's an amazing amount of paranoia on display in this thread. So what if a dog alerts incorrectly and your car is searched? Are you hiding something? If so, I'd say that's your problem. If not, then it's nothing more than a minor inconvenience.

    SCOTUS made the right decision. Warrants are routinely issued based on tips from informants and other sources of equally marginal reliability. It's "probable cause," not absolute certainty. If it were certain, we'd be talking about arrest warrants rather than search warrants.

  • Dallas H.||

    "If you're doing nothing wrong you have nothing to fear."

    The rallying cry of tyrants everywhere.

  • Gunblitz66||

    Yes, because they would never misuse something that is literally a free warrant on a leash. Do we really need the fourth amendment then? If you're not doing anything wrong...oh crap you probably like this idea...

  • Masturbatin' Pete||

    I've got plenty of legal stuff in the car that I don't want some cop poking through, thank you very much.

  • StackOfCoins||

    I used to think like you. I just assumed cops, judges etc. all acted in good faith, because this is the giddam land of the free gidammit.

    Then I started reading about actual police activity here and elsewhere.

  • Harvard||

    Note to self:

    Open can of Red Cayenne in the console.

    Tabasco soaked hanky in Skoal can in hip pocket.

  • Masturbatin' Pete||

    This case was 9-0 - not even close, even with Justices who have protected Fourth Amendment rights before. Neither Thomas nor Scalia, for example, are slam-dunk votes for police searches, and Ginsburg was an ACLU lawyer.

    Unreliable drug-dog sniffs are a problem, but this was a bad case to decide the issue on. As the Court makes clear, the defense attorney didn't do enough to challenge the probable cause determination at trial, and the defendant is asking the Court to establish a per se rule on search technology that would overturn decades of precedents.

  • ||

    good legal analysis-foo. good post

  • buybuydandavis||

    Issue the cops divining rods - less weight, and they don't require puppy chow.

  • ||

    this isn't friggin' rocket science. we need INDEPENDENT testing agencies for police dogs AND their handlers (they work as a team), and the scoring must be strict.

    clearly, some police dog/handler combo's are awesome. i quarried for one that would beeline to where i hid the drugs in the room every time. clearly, some suck.

    fwiw, the k-9 i worked with day before yesterdsay was awesome- went right to the hidden burglar in the building and laid the bite down on him. big part of ofc. safety is k-9 for building searches. burglar was loaded with weapons, a mobile meth lab on his back, apparent IED's (haven't heard the x-ray results yet), a hatchet stuffed down the front of his pants, etc. love PATROL (not drug) k-9's.

    but if a dog = probable cause, then that dog first needs to be strictly tested wITH HIS HANDLER to show a high level of accuracy and a very low level of false positives.

    Note: k-9's in WA can no longer be used to get PC for drugs since we don't know if they are alerting on (now legal) marijuana. huge positive unintended consequence of legalizing marijuana

    but again, dogs need to be certified and tested, just like any instrument you rely on

  • My Dog Bites Better Than Yours||

    but again, dogs need to be certified and tested, just like any instrument you rely on


    That's one of the points. NIST does not calibrate a dog's nose. There is little meaningful certification, requiring double-blind testing. Hell, Kagan even stated in-field records are notoriously unreliable and it's not reasonable to expect the handler to keep a log in the field.

    Dogs have a lot of value in policework. A dog alert is not (or should not be) evidence in itself.

  • ||

    imo, calea (google it) could be a positive influence in this regards by making such testing mandatory for certification.

    we both agree. the testing is not MEANINGFUL. frankly speaking, it's insufficient. we are talking about people's liberty and privacy here. there is no room for fucking around

    cheers

  • DenverJay||

    You keep mentioning how dogs in Washington can no longer be used for probable cause because they were trained to alert to marijuana. But isn't this just temporary? Won't the police departments just get new dogs that are not trained to alert on pot? Sure, it takes a while to train a dog and his handler, but I will bet that this is just a lull until the police get new dogs.

  • Oaken45||

    til I saw the paycheck which was of $9582, I have faith ...that...my mom in-law woz like they say actualy making money in there spare time from there pretty old laptop.. there best friend has been doing this 4 less than fourteen months and resantly cleared the loans on there house and bourt a great Car. we looked here, http://WWW.FLY38.COM

  • DenverJay||

    well then the first thing she should do is buy a newer laptop...for the right price I could build her a pretty sweet machine...

  • SimpleMan||

    Such bullsh*t.

  • Brazen||

    my classmate's aunt makes $79/hr on the computer. She has been out of a job for seven months but last month her pay check was $15402 just working on the computer for a few hours. Read more here http://www.wow92.com

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement