What If the Dog Can See Infrared Radiation?

Jacob Sullum | June 1, 2007

The Minnesota Supreme Court has upheld the use of a drug-sniffing dog to detect marijuana in an apartment based on an "articulable suspicion" rather than the "probable cause" usually required to search someone's home. The police in this case brought in a dog after maintenance workers reported seeing that the tenant of an apartment where they thought they saw grow lights would not let them in to fix a leak. Based on that information, the defendant's criminal record, and the dog's reaction outside his apartment, the police obtained a search warrant. The court ruled that the maintenance workers' suspicions were enough to justify the "minimal" intrusion represented by walking the dog down a public hallway outside the apartment. The dissenters warned:

This case marks a significant departure from our constitutional jurisprudence because it is the first time the court has authorized the search of a private residence based on anything less than probable cause in the absence of exigent circumstances. It is a departure that takes us down a road that erodes Fourth Amendment protections in one's home.

I've written about dog sniffs in public places, which the U.S. Supreme Court does not consider a search requiring probable cause, and infrared readings of homes, which it does. In the January issue of reason, Julian Sanchez expanded on the theme by considering the constitutional conundrums posed by "pinpoint searches."

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|6.1.07 @ 12:38PM|#

This is so wrong.

|6.1.07 @ 12:39PM|#

I am not sure this is any different than running a helocopter around looking for inferred signatures. If those require probable cause, then rover sniffing your door certainly does.

|6.1.07 @ 12:42PM|#

John,

At least infrared signatures are objective. A positive call by a dog is dependent on what the handler wants it to be.

AmericanResistance|6.1.07 @ 12:43PM|#

Why is the government so incompetant that it cant stop dangerous drugs from coming in our country in the first place?

Christopher Monnier|6.1.07 @ 12:43PM|#

Who has taken more of your freedoms away--the government via The War on Drugs or "the terrorists?"

|6.1.07 @ 12:45PM|#

Dogs are even worse than IR scans, since there is no way to calibrate a dog. Nor can a dog make statements under oath. Dogs are nothing but an end run around the constitution.

NO DOGGY! This is my pot brownie. No doggy! BAD DOGGY! MOMMMMMM! Doggy's being a jack-booted thug!

|6.1.07 @ 12:46PM|#

Tacos,

If I can remember my criminal procedure class correctly, the logic behind requiring probable cause for an inferred readig is that the inferred reading, because it is beyond normal perception, is more intrusive than just looking at a house from the outside. Therefore, monitoring your inferrred signature is not the same as looking at your house. The dog is the same way. Dogs have 100 times the sense of smell humans do. The dog is just an insturment humans use to smell things they normally can't. Just like the inferred sensor is an insturment humans use to see things they normally can't.

AmericanResistance|6.1.07 @ 12:49PM|#

"Who has taken more of your freedoms away--the government via The War on Drugs or "the terrorists?""

Thats a dumb question. The terrorists want you me, and everyone else here dead. The government doesn't.

|6.1.07 @ 12:50PM|#

And what about the use of a man made odor analyser? Would it fall under the guidelines for sniffer dogs or for man mad infrared detectors?

VM|6.1.07 @ 12:52PM|#

Wow. AR really got to the bottom of that mystery.

"Thanks" there, d00d! A real crack analysis.

Christopher Monnier|6.1.07 @ 12:53PM|#

> The terrorists want you me, and everyone else here dead.

Okay, George...whatever you say.

AmericanResistance|6.1.07 @ 12:56PM|#

Crhistopher, do you really think that not being able to buy heroin at Wawa is a bigger threat to your freedom than bin Laden?

M|6.1.07 @ 1:03PM|#

a)

Why is the government so incompetant that it cant stop dangerous drugs from coming in our country in the first place?

I misread that as "dangerous dogs".

b)

Shouldn't s/he call him/herself "AmericanCompliance"?

c)

"Where they be keepin' it, Rover? Where? Where?"

"Rrrrroof!"

|6.1.07 @ 1:14PM|#

"Who has taken more of your freedoms away--the government via The War on Drugs or "the terrorists?""

"Thats a dumb question. The terrorists want you me, and everyone else here dead. The government doesn't."

Ar-My government, may not have as evil intentions as bin Laden concerning me, but it has much more power and ability to negatively influence my everday life than some camelfucker (tip to Big Lebowski) over in the Middle East or wherever. And its intentions, like most government now, before and forever, are not good either (read your Founders).

Christopher Monnier|6.1.07 @ 1:22PM|#

> Crhistopher, do you really think that not being able to buy heroin at Wawa is a bigger threat to your freedom than bin Laden?

Is "Wawa" a clever euphemism for Wal-Mart??

Clearly you won't be persuaded, but I'll state my rationale for raising the question I raised anyway.

It's NOT the lack of availability of drugs that's an impingement on my freedom; it's the execution of the War on Drugs (with its gun laws and no-knock/no-warrant raids) and the fallout therefrom (increased poverty, crime, and violence) that impinges on the freedom of all Americans. The sum total of this is far worse than anything "the terrorists" have caused.

AmericanResistance|6.1.07 @ 1:27PM|#

"
Is "Wawa" a clever euphemism for Wal-Mart??"

Well, its clear you have never been near the Delaware Valley. this is a Wawa.

You think legalizing dangerous narcotics is going to fix crime and poverty? Ha!

I can imagine it now, large billboards with models on them saying, "My brand of crack-cocaine will give you the most intense high of any leading competitor!"

Not to mention, all the addicts will be claiming welfare because they wont be able to hold jobs, and using medicade to be treated for the physical damage drugs do to the human body.

|6.1.07 @ 1:29PM|#

Moderately OT: the U.S. Capitol Police have a K-9 unit. Policemen, dogs, and people who work on Capitol Hill are similar, in that they all 1) operate in social groups, 2) have a highly complex, stricly ordered heirarchy based on status, and 3) give off clues about their status via their appearance and body language.

So one day I see a Capitol Hill policeman walking a Capitol Hill police dog on a leash. The dog was trotting along, ramrod straight, shiny coat, bright eyes, head up high, looking everyone he encountered straight in the eye, and walking in front. The cop was slouching, dressed in boots and overalls, head down, looking at people's torsos, grim expression, and following the dog.

And that's when it occured to me - that dog has a higher status than the cop handling him.

DC is a weird place.

|6.1.07 @ 1:32PM|#

Oven Baked Sizzli Muffin?

jimmydageek|6.1.07 @ 1:34PM|#

Yes, DC is a weird place, joe. Was the dog/cop incident your first clue as to that? ;)

|6.1.07 @ 1:41PM|#

AmericanResistance

Even though I suspect you may just be funning us here's my answer.

Crhistopher, do you really think that not being able to buy heroin at Wawa is a bigger threat to your freedom than bin Laden?

Since the threat Osama poses to me is so small as to be for all practical purposes zero while the likelihood the cops might raid my house searching for drugs even though I am not a drug user is quite large my vote is on the drug war as the greater threat.

VM|6.1.07 @ 1:44PM|#

I for one love how AmericanResistance really cuts to the crux of the matter. With razor-like, sharp, black-and-white, easy-to-understand analogies, and that quirky and quaint down-to-earth humor (not to mention down-to-earth references to his locality), he simply mesmerizes and cajoles and convinces his way to the top of the charts and to the number one place in our hearts

|6.1.07 @ 1:45PM|#

"The terrorists want you me, and everyone else here dead. The government doesn't."

Ah, well, glad to know that if the government is only inadvertently killin' people that we're still copacetic.

|6.1.07 @ 1:47PM|#

To get back to Jacob's original question, the DEA is already breeding genetically mutant dogs that can see infrared. They can also feel purple and taste green. Look out, America! You have been warned!

VM|6.1.07 @ 1:48PM|#

joe - 'cept the dogs snif each other tushies, while the staffers smooch...

|6.1.07 @ 1:49PM|#

"And that's when it occured to me - that dog has a higher status than the cop handling him."

Of course the dog does. As a lifetime German Shepherd owner, I can tell you that dog takes his job more seriously and holds himself to a higher standard than any cop. Comparig a good police shepherd to the cop that is handling him is like comparing Barney Fife to the Waffen SS. They are not the national dogs of Germany for nothing.

I can imagine it now, large billboards with models on them saying, "My brand of crack-cocaine will give you the most intense high of any leading competitor!"

Not to mention, all the addicts will be claiming welfare because they wont be able to hold jobs, and using medicade to be treated for the physical damage drugs do to the human body.

I have a one word response that destroys every single point drug warriors try to make: Alcohol.

|6.1.07 @ 1:50PM|#

I think it's worth noting that this decision brings Minnesota law pretty much into line with current federal search-and-seizure law. Before this case, the Minnesota state constitution was interpreted as providing greater protections against unreasonable S&S than the Fourth Amendment to the U.S. Constitution. The defendant in this case didn't even bother to assert a Fourth Amendment problem in his appeal; he limited himself to arguing only that the Minn. constitution was violated.

Also, as is pointed out in the opinion, in some jurisdictions the information the police had here would probably be found to be sufficient for probable cause itself, not merely for the "reasonable, articulable suspicion" needed for a lawful Terry-stop search.

All of which is not to say that this opinion is something to celebrate. I just thought some additional context would be helpful.

|6.1.07 @ 1:55PM|#

"Not to mention, all the addicts will be claiming welfare because they wont be able to hold jobs, and using medicade to be treated for the physical damage drugs do to the human body."

Not to highjack the thread but that is a myth. Just like there are functioning alchoholics there are functioning drug addicts. Look at Rush Limbaugh. The guy was poping pain pills for years, yet managed to go through life quite well. There are people who have chronic pain who pop pills to such an extent that they might as well be addicts, yet manage to do just fine.

Yes, some addicts are degenerates unable to hold a job. But, I don't think the drugs caused them to be degenerates. I think they are degenerates with or without drugs and just use the "I have a drug problem" as an excuse to be degenerates.

AmericanResistance|6.1.07 @ 1:55PM|#

"I have a one word response that destroys every single point drug warriors try to make: Alcohol."

Yeah, cause since one dangerous and addictive drug is already too entrenched in our culture to stamp out, what we should really do is add about 15 more such drugs. Uh-huh, perfect sense.

|6.1.07 @ 1:59PM|#

"Yeah, cause since one dangerous and addictive drug is already too entrenched in our culture to stamp out, what we should really do is add about 15 more such drugs. Uh-huh, perfect sense."

Yeah just because on attempt at prohibition failed miserably (the 19th Amendment), what we should really do is add about 15 more such efforts and spend billions and send millions of citizens to jail. Uh-huh, perfect sense.

Just like there are functioning alchoholics there are functioning drug addicts.

Which gives me an opportunity to plug this guy.

...like comparing Barney Fife to the Waffen SS

HA! It's like a reverse thread Godwin!

Rhywun|6.1.07 @ 2:01PM|#

Thats a dumb question. The terrorists want you me, and everyone else here dead. The government doesn't.

By that logic, the mere existence of murderers is enough justification to remove most of our freedoms. "Well, would you rather be murdered?"

VM|6.1.07 @ 2:02PM|#

You know, AR, every time I think you're backed into a corner, you come up with more brilliant, ingenious, Wile E. Coyote-esque nuggets of knowledge that enlighten, enrich, encapsulate, and energize the discussion! Yea! Yours is a silver-tipped, honey-crusted keyboard of the wit and wisdom of Shaw, Wilde, Kraus, Hofmannsthal, Mann, and L. Ron Hubbard - in a potpourri-style goulash of allerlei wisdom.

LarryA|6.1.07 @ 2:02PM|#

You think legalizing dangerous narcotics is going to fix crime and poverty? Ha!

No, not entirely. But it will make crime a lot less violent and free up an enormous amount of funding and resources.

I can imagine it now, large billboards with models on them saying, "My brand of crack-cocaine will give you the most intense high of any leading competitor!"

So?

Not to mention, all the addicts will be claiming welfare because they wont be able to hold jobs,

If "drug addicts" can't hold jobs, why do so many businesses conduct random tests to find the users? Wouldn't they be able to spot users through substandard work? Or are there lots of people using and leading relatively normal lives?

and using Medicaid to be treated for the physical damage drugs do to the human body.

1. Much of the "damage" illegal drugs do is a result of impurities, sharing needles, poor technique, etc. resulting from dealing on a black market.
2. Legalizing drugs will not only enable people who want to get off them to seek treatment without ruining their lives, it will also free up funding for such programs.
3. Medicaid and other government programs, and hospitals, already get stuck with most of that bill.

Legalization would save enormous amounts of money.

Rhywun|6.1.07 @ 2:03PM|#

one dangerous and addictive drug is already too entrenched in our culture

Dan T., is that you??

|6.1.07 @ 2:05PM|#

I bet you are a riot at a party, eh, AR?

Oh, and strictly out of morbid curiosity, why do you think marijuana is a dangerous drug (as you implied earlier)?

Is it the munchies? The mellow euphoria? The way it makes people think they're little Nietzsches and Aristotles? Really, do tell.

|6.1.07 @ 2:13PM|#

"You know, AR, every time I think you're backed into a corner, you come up with more brilliant, ingenious, Wile E. Coyote-esque nuggets of knowledge that enlighten, enrich, encapsulate, and energize the discussion! Yea! Yours is a silver-tipped, honey-crusted keyboard of the wit and wisdom of Shaw, Wilde, Kraus, Hofmannsthal, Mann, and L. Ron Hubbard - in a potpourri-style goulash of allerlei wisdom."

VM, if you'll check your pants, you'll find that you just came a little bit.

|6.1.07 @ 2:14PM|#

wit and wisdom of Shaw, Wilde, Kraus, Hofmannsthal, Mann, and L. Ron Hubbard

Who Kraus?

|6.1.07 @ 2:16PM|#

"Who Kraus?"

Paul Kraus is a retired Vikings football player. He is also a world renowned philosopher.

|6.1.07 @ 2:31PM|#

It is a departure that takes us down a road that erodes Fourth Amendment protections in one's home.

That's so cute. Like we're just starting down that road, rather than at the very dead-end of it.

VM|6.1.07 @ 2:32PM|#

Tippy - more than just a little bit. Just spent 12 minutes cleaning off the bottom of the desk.

(Just gotta say, thank gawd for handi wipes and cling wrap!)

jp - Karl Kraus - Austrian turn-of-century author.

|6.1.07 @ 2:40PM|#

Aha. Danke.

Who could imagine that they wo|6.1.07 @ 2:47PM|#

As a Minnesotan, I don't have a problem with this ruling.

It's not as though the cops had a policy of walking apartment hallways with dogs, trawling for olfactory hits, so they could get a judge's permission to kick down doors.

It was a citizen complaint (a phone call to the cops by a worker for the apartment building) that put the cops on the scene. The suspicion of weed growing, as motive for denial of access to fix a leaking pipe, was also brought up by the citizen as part of their complaint to law enforcement. Walking a dog down a commons hallway, by way of following up on the stated suspicions of a citizen with a complaint, is acceptable police behavior by my figuring.

Don't grow weed in an apartment building...too risky.

|6.1.07 @ 3:29PM|#

"""I think they are degenerates with or without drugs and just use the "I have a drug problem" as an excuse to be degenerates."""

I agree.

bubba|6.1.07 @ 3:32PM|#

In this case the police/dog were invited into the hallway by the management of said hallway.

|6.1.07 @ 3:36PM|#

Bubba -- Actually, the opinion says it's not clear how the police got in.

However, since the defendant didn't make an issue of it, he presumably had reason to believe that they were in the hallway lawfully.

|6.1.07 @ 4:40PM|#

I'm OK with the management letting the cops into the hallway. But there's no fucking way, a dog can supply the necessary "Oath or affirmation" required by the forth amendment.

M|6.1.07 @ 9:06PM|#

there's no fucking way, a dog can supply the necessary "Oath or affirmation" required by the forth amendment

Though it can compensate by giving new meaning to the term "perp walk".

|6.1.07 @ 10:18PM|#

But there's no fucking way, a dog can supply the necessary "Oath or affirmation" required by the forth amendment.

What if they're special mutant dogs?

M|6.2.07 @ 9:51AM|#

What if you're a special mutant dog who on the internet no one knows you're a dog?

John|6.2.07 @ 1:07PM|#

Hopefully Mr. American Resistance can have a up-close and personal encounter one day with a SWAT team that's got the wrong address.

If he survives, maybe he'll have lots of time to tell us all about the wonderful moral cops and the evil, evil drug addicts from the comfort of his motorized wheelchair.

I couldn't wish it on a nicer guy!

AmericanResistance|6.2.07 @ 8:07PM|#

John, what would you say in your hypothetical world where drugs are legal when your son/daughter comes home on his/her 18th birthday with a pack of meth?

As for the harm caused by marijuana, the science is clear. Not only is it a dangerous carciongen that damages the lings, it also contributes to lethargy and laziness. In addition, it often serves as a gateway to "harder" drugs.

But I guess in the fantasy libertarian world letting Anhueser Busch and Phillip-Morris manufacture meth and LSD is a-ok!

Hey, maybe we will have "micro-meth labs" like we have "micro-breweries".

John|6.2.07 @ 9:18PM|#

American Non-resistance speaks out!:

John, what would you say in your hypothetical world where drugs are legal when your son/daughter comes home on his/her 18th birthday with a pack of meth?

A "pack of meth"? Well, I guess I'd leave that to the parents of this hypothetical "son/daughter" to decide, since it's their business and none of mine. Maybe they could boot him/her out onto the street. Maybe they could take the opportunity to get him/her to do all the chores in 24 hours. I don't care what they do as long as they don't involve me in the process.

But I'm not a child, and I'm not the child of either you or your nanny state, so you get to shut up and mind your own business about what I do or don't do with my health.

I don't want you to pay for the consequences and I don't want to pay for your problems.

And you have no right to expect anything else from me. If you are so weak you need a SWAT team hovering around you all the time to keep from being a needle junkie, well, sucks to be you, doesn't it?

It's none of my concern.

As for the harm caused by marijuana, the science is clear. Not only is it a dangerous carciongen that damages the lings, it also contributes to lethargy and laziness. In addition, it often serves as a gateway to "harder" drugs.

The "science" is pseudoscience, and if you believe that kind of pseudoscience, you have to belive all those worthless "studies" about gun ownership making people more aggressive. But it doesn't matter anyway, because valid or not, you have no right to make decisions for other people about what they do to themselves with drugs - or don't do. See above. You arn't the national mommy.

But I guess in the fantasy libertarian world letting Anhueser Busch and Phillip-Morris manufacture meth and LSD is a-ok!

I couldn't care less. And if freedom is a "fantasy world" than it's due to people like you who can't mind your own damned business. What is it you are supposed to be "resisting", anyway? It sure isn't the state.

Hey, maybe we will have "micro-meth labs" like we have "micro-breweries".

Unlike you, I don't stay up all night grinding my teeth and obsessing about other people's poor health choices. Better lay off the statism, pal.

Cesar|6.2.07 @ 10:22PM|#

For the record, on all drug war threads I'll pretty much go with what John says unless I say otherwise.

hilly|6.4.07 @ 2:29PM|#

Every time I read AR's comments, it's like there's a little Julie Andrews in my head singing, "Lay ee odl lay ee odl lay HEE HOOOOOOO!"

|6.4.07 @ 6:28PM|#

C'mon guys, lay off AR. It's not just that they hijacked this thread to focus on drugs, instead of the State's power to force its way into an apartment because some repair man couldn't get into someone's apartment (maybe they just got out of the bath?), they really are astute:

Why is the government so incompetant that it cant stop dangerous drugs from coming in our country in the first place?

YEAH BABY! How come the government can't stop those damn drugs that ended up growing in that guy's bathroom, anyway? THAT's what I'm talking about ... good old fashioned "reason".

Besides, I simply do not hear ANYONE clamoring to legalize ALL drugs any more than I hear them clamoring to make alcohol illegal. I hear people clamoring to make weed legal and keep alcohol legal. The bullshit is that the Feds have made marijuana the number 1 target of its interdiction efforts, while at the same time reducing its emphasis on seeking out and prosecuting crimes for heroin, cocaine, methamphetamine and every other drug.

Why?

(1) Dogs can't smell a baggie of heroin through a door unless the baggie is right up against it.
(2) There aren't enough heroin et al. users to justify the DEA's humongous budget (~$35 billion/year).
(3) They don't have to waste a lot of prison space to make headlines with their "success" rate at arresting drug offenders* ... which leads to more budget dollars.

*Only 6 percent of marijuana arrests result in felony convictions. I refer you to the Rosenthal story.

Whether it's acceptable to use drug-sniffing dogs to walk down a public hallway to see if they hit paydirt ... that's the issue we should be discussing.

The shit I give would be a whole lot larger if they were using BOMB-sniffing dogs ... unless, of course, the terrorists will be trying to kill us by detonating POT BOMBS! In which case ... okay ... now I'm all confused about what I would consider to be acceptable behavior ...

Dan|6.4.07 @ 8:18PM|#

I want all drugs to be legalized.

The Magistrate|6.4.07 @ 9:07PM|#

Hi,

I think "American Resitance" is good to have around so you can see the mindset that those people who are trying to legalize marijuana have to battle against every day.

People like him are afraid of freedom, basically. Freedom is not to be secure in your person and effects if what you have is given the OK by everyone, then what would be its purpose? Same with freedom of speech. If it meant only unobjectionable speech, it would be useless, as even the worst dictatorships allow such speech. Under these definitions America has no real meaning.

Rather, to be secure in your persons and effects means that what you do with yourself and your own things, so long as these activities involve or harm no one else or their property, then they must be allowed, as Mill and Lippmann (and Jefferson) all said--for the greater good of human liberty. You might not like gays, or atheists, or commies, or pot smokers, but these activities are all protected and having them protected is what makes America America. You might not like the Klan, but you have to let them march and speak, for example. Anything else would be a regression.

The fact that repair men would call the police for a man growing marijuana is a travesty in itself. We have become a nation of narco 1-880 number dialing weasels. What harm did he do to anyone? As for the dogs, which have now invaded school lockers, subways, airports, and road blocks, they are a symbol of fascism, and indeed were used for similar purposes during World War II Jew roundups.

That marijuana remains illegal is a travesty of proportions that rival Nazism in Germany, the red scare in the USA, and even slavery and witch trials. During all of these activities the "general public" accepted the status quo, and did not realize they were in the midst of tragedy. The prosection of people who decide to alter their conscience---the same way drinkers do at the White House banquets---has made us the nation which imprisons a higher percentage of its own people than anywhere else.

Drugs being illegal---especially soft drugs like marijuana and hashish---is a hypocrisy and unconstitutional. It is also unjust on numerous legal grounds, namely that it involves no tort---there is no victim, and no other person or others' property is harmed. When a person smokes a joint and punches somebody (a very rare occurence indeed...) his crime is punching someone. What does his state of mind have to do with it? Would it be different if he was under a prescription for anxiety (downers) or depression (uppers)?

Finally, American Rsistance is a symbol of the ignorance in this country about marijuana and its products. There is not one single account of a death attributable to marijuana. These "carcinogens" he spouts off about are found in 1000 times greater quantity when you walk down the street and inhale car fumes and factory emissions. And as for my sone coming home with a "pack of meth" , he is too smart for that since he has been told the truth about drugs since the age of ten. I would also tell you this: this is between the family and should be handled by the family. Personally if he has a good job (which many pot smokers indeed do), pays his bills, and does what he is supposed to, should I care if he smokes on weekends?

Bottom line is, I cannot regulate to make sure you take a shower every day, or refrain from wearing disgusting perfume, or go to stupid Monster Truck shows, or dress like an idiot, or have no manners...etc. These are all protected for you, fat ugly stupid pigs. Now why can't you respect someone who chooses to smoke grass. What's it to you?

The Magistrate

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