Scalia Wonders Why on Earth Police Would Want a Dog That Lets Them Search Anything They Want

In today's second Supreme Court case involving police dogs, Florida v. Harris, the justices seemed much more inclined during oral arguments to side with the government. Unlike in Florida v. Jardines, where Antonin Scalia joined some of the more left-leaning justices in questioning the constitutionality of bringing a drug-detecting canine to a suspect's doorstep without a warrant, even the liberals were wary of establishing rules for assessing the reliability of a dog's signal as grounds for a search, while Scalia was transparently hostile to the idea.

The argument offered by Gregory Garre, the lawyer representing Florida in this case as well as Jardines, was pretty straightforward: Trust us. "The handlers themselves are going to be in the best position to know the dogs and evaluate their reliability," he said, "and they have a strong incentive to ensure the dogs are reliable." So if a cop trying to justify a search vouches for the reliability of a dog whose alert supposedly justifies that search, why should anyone 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," especially in a state that, like Florida, has no uniform standards for training dogs or their handlers? "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, 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. Plus, 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 urging him to agree with the Florida Supreme Court that merely asserting a dog has been trained is not enough to establish its reliability. "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." Scalia deemed that suggestion patently absurd:

Officers just like to search. They don't particularly want to search where they're likely to find something. They just like to search. So let's get dogs that, you know, smell drugs when there are no drugs. You really think that that's what's going on here?...They like to search where they're likely to find something, and that only exists when the dog is well trained.

Bear with me, Your Honor, and imagine a scenario along these lines: A cop pulls over a pickup truck, ostensibly because of an expired tag but maybe because something about the driver strikes him as suspicious. The guy seems nervous, squirrely, and restless, and the cop thinks: I bet he's a tweaker. After the driver refuses consent to a search, the cop, who just happens to have a drug-sniffing German shepherd with him while keeping his eye out for expired vehicle registrations, walks the dog—let's call him Aldo—around the truck. Although no one else (certainly not Aldo) can testify to this, the cop claims the dog alerted to the driver's side door handle by getting excited and sitting down. The cop searches the truck but does not find any substance that Aldo is trained to detect. He does find hundreds of pseudoepedrine pills, along with other ingredients for making methamphetamine. About two months later—weird coincidence!—the same cop stops the same guy in the same pickup truck, this time ostensibly because of a busted brake light. Aldo supposedly alerts again at the same spot, but again there are no illegal drugs in the truck. The cop suggests that both unverified alerts were due to meth residue from the driver's hand, which might be true. Alternatively, the dog may have been distracted by other smells, or he may have alerted in response to subconscious signals from a handler keen to confirm his suspicions. Maybe the cop, due to said suspicions, misinterpreted the dog's behavior. There are other possible explanations as well.

This scenario may sound familiar, Your Honor, because it is exactly what happened in the case you are currently considering. Can you discern any possible incentives here for misrepresenting a dog's reliability, or even for valuing a dog who will alert on cue, subconscious or not? I can, but I am not as mesmerized as you are by the "new professionalism" of America's police officers.

One justice, Sonia Sotomayor, did express concerns about the high error rates of some police dogs and how they might affect probable cause for searches of not just vehicles but also homes (the issue in Jardines). "Who determines when a dog's reliability in alerting has reached a critical failure number?" she asked. "I'm deeply troubled by a dog that [accurately] alerts only 12 percent of the time....That seems like less than probability." Garre refused to be pinned down on that question, saying "this Court has rejected a numerical conception of probable cause." Gifford made the same observation but added that "in the lower courts, once you get below 50 percent, probable cause is much less likely to be found." That seems about right to me. Contrary to what Garre claimed, the Florida Supreme Court is not demanding that drug-detecting dogs be "virtually infallible." But is it too much to ask that they be right at least half the time?

The full transcript of the oral arguments is here.

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.

  • tarran||

    I am now understanding why Scalia irritates me emotionally so much. He's another fucking Tulpa.

  • tarran||

    I should explain.

    Scalia knows he's full of shit. He's from Queens, IIRC, and he is intimately familiar wtih the NYPD, and the way it trashes civil liberties in ways that hurt the innocent. He knows the score.

    But, he knows that without violating ttheir limited powers granted under the Constitution, the various governments' War on (some) Drug(using minoritie)s will become utterly irrelevant.

    So, he's manufacturing a specious, yet cleverly constructed rationale that he hopes will carry the day and provide a fig leaf or reason for a ridiculous idea that he's arrived at emotionally.

    ... just like our friend Tulpa does.

  • ||

    Actually no explanation was required.

  • Tulpa (LAOL-PA)||

    Were that the case, you could dispense with my supposedly "specious rationales" as easily as Sullum disproves Scalia's here. But, of course, that doesn't happen.... you guys just resort to insults and red herrings.

  • ||

    Authoritarian creep....

  • Rights-Minimalist Autocrat||

    Hmm, why would a cop want a dog to give a false positive...I can't possibly imagine any reason!

    Also, fuck you, Scalia.

  • Tulpa (LAOL-PA)||

    If it were patently absurd to think that police want to search without probable cause, then why do we bother having the Fourth Amendment at all?

  • juris imprudent||

    Don't give them a fucking rationale.

  • Beowulf||

    That about sums it up.

    Why is it so difficult for Republican-nominated judges to take civil liberties seriously? Romney would probably still do better than Obama with nominations, but the track record is mixed... Scalia and Alito leave a lot to be desired when it comes to the non-economic stuff...

  • Tulpa (LAOL-PA)||

    As Sullum said,

    even the liberals were wary of establishing rules for assessing the reliability of a dog's signal as grounds for a search

    As time goes on I'm more and more convinced that BO fucked up collossally by picking Sotomayor (from his POV). Kagan is more in the mold of the justice he would appoint, a left-wing statist bootlicker.

  • Juice||

    All BO cared about was that she was a Hispanic woman and nominally a liberal.

  • VG Zaytsev||

    As time goes on I'm more and more convinced that BO fucked up collossally by picking Sotomayor (from his POV).

    That presumes that he's an old fashioned liberal that cares about civil liberties.

    A presumption completely lacking any supporting evidence.

  • Tulpa (LAOL-PA)||

    No, it doesn't. Sotomayor is actually turning out decent on CL, which BO does not like.

  • VG Zaytsev||

    That was my thought too.

  • John C. Randolph||

    I find it hard to believe that Scalia is as stupid as he's appearing here, so I conclude that he's a scoundrel.

    -jcr

  • VG Zaytsev||

    I can, but I am not as mesmerized as you are by the "new professionalism" of America's police officers.

    That's just an unfair characterization.

    Scalia was mesmermized by the professionalism of the dogs, not the cops.

  • ||

    The dogs *are* cops, just ask the cops (and the law) - they'll tell you.

  • Tulpa (LAOL-PA)||

    It should also go without saying that if you're depending on Antonin Scalia to vote for civil liberties against cops, there must be a problem with the supposedly civil-liberties-friendly leftists on the court.

    I mean, are Kagan, Sotomayor, Breyer, and Ginsburg good for anything?

  • realist||

    Breyer was in dissent in Kyllo. Besides, they are only 4 votes. If they had 5 votes, they wouldn't need Roberts in the health care cases.

  • Aldo||

    I'm going to have to smell your asshole, Justice Scalia.

  • Rabbi Moshe Rudner||

    My personal story on the subject in bulletpoints:

    - I like exploring the world
    - 10 months ago I was doing just that along the CA/Mexico border
    - Fell asleep in my rental SUV to be awakened by coppers at my window
    - Wanted to search the car and I refused (I had nothing illegal of course unless you count my dignity as a human being and a citizen)
    - Told me that would be alright if I'd just let their dog in the vehicle
    - No sir
    - Ordered me out of the vehicle and when I asked if I could refuse that too they said I couldn't (I'd already shown my documents and answered their questions and was plainly not a threat)
    - I left the vehicle but forgot to close the door
    - While speaking with one cop, the other one WALKED HIS DOG INTO THE VEHICLE and followed the dog in, justifying it by saying that the dog smelled something and went in on his own (untrue of course, unless dogs enjoy smelling steering wheels)
    - It ended about 20 minutes later when I happen to have mentioned my ecclesiastical title to the outside-the-car cop who suddenly called his partner and hooch out of my vehicle so they could double team me on the importance of accepting Christ and being saved.
    - Them being officers of the law n' all I patiently heard em out for 10 minutes before politely excusing myself
    - That is all

    www.ExoticJewishHistory.com

    Super special discount for Reasonians here http://goo.gl/i35pg

  • Appalachian Australian||

    Speaking as a Christian, I am quite disappointed in the behaviour of my fellow "Christians".

    For example:
    - Christ advised his followers not to swear oaths, but if one does end up swearing an oath anyway, you're supposed to keep it. (Like, say, not violating the fourth amendment.)
    - Jesus commanded his followers to forego using violence and force
    - And Jesus and Paul commanded their followers not to lie, which is standard operating procedure for police.

    Is it possible to be a practicing Christian and a cop?

  • AdamJ||

    For someone who cares so much about the constitution, Scalia sure has total disregard for a lot of it. What an asshole.

  • AdamJ||

    He's got to be the biggest hypocrite on the court, right?

  • ||

    ..."and they have a strong incentive to ensure the dogs are reliable." No they don't. That's the problem. Canines are going to sniff anything that prompts a reward from their handlers. There's no punishment for sniffing too much.

  • ||

    ..."and they have a strong incentive to ensure the dogs are reliable." No they don't. That's the problem. Canines are going to sniff anything that prompts a reward from their handlers. There's no punishment for sniffing too much.

  • triclops||

    They care about accuracy in that they don't want false negatives. False positives, however, are exactly what they want.

  • ||

    I'm not so sure they're even concerned about that. Sure they want to catch everything, but what they don't catch they're not held responsible for.

  • R C Dean||

    they have a strong incentive to ensure the dogs are reliable

    No they don't. They aren't punished for false positives. Nor do they ever even know about false negatives.

    There's no incentive for accuracy at all.

    The cops are rewarded for true positives, so there's a bias towards positives. And the dogs are rewarded whenever they alert (whether overtly or subliminally), so there's a bias for alerting.

    The game is rigged, Scalia.

  • Tulpa (LAOL-PA)||

    They're also rewarded for false positives, as in the case before the court.

    False positive means you get to search for things that the dog can't smell, too.

  • Robert||

    In what way are the cops rewarded for either false or true positives? They on commission? Share of the loot?

  • flye||

    The more interesting aspect of the arguments were around the nature of the dog -- sense enhancer for his handler or just another officer? Because it was conceded that an officer couldn't walk up with some smelling machine without a search warrant. But because its a dog and they've been used like this for hundreds of years (a point made multiple times) then that's somehow ok.

    Seems like an odd distinction to me.

  • Michael S. Langston||

    Additionally, and some resident commenter LEO can confirm or deny it, but I think in training they tell police officers constantly things like, 1 out of every 10 searches results in a felony of some sort.

    & their cops, so their stats suck. For instance, on average, an American will be in 3 traffic accidents in their lifetime. I asked the officer, "so I could have less and someone else could have more" he replied "no, everyone has at least 3"...

    So effectively during training they're taught that while traffic stops may suck, 1 out of 10 searched result in felony stop, so stop a lot of people.

    Same basic type of philosophy used for TSA screeners.

    Shorter version: as others said, with the philosophy that the police department gets to say whether the dogs are good enough to warrant searches because there is no way they would waste their time in absue of that power, the protections currently in place just aren't needed.

    Isn't it great that we have such moral benefactors looking after us that we have no need to double check them at all?

  • Lyle||

    Scalia has Reason's number on the incentive for no police. There's a job that police have to do. Their functionality won't ever go away. It's all just an ongoing argument over the drawing of lines not to be crossed.

  • Appalachian Australian||

    So, a guy here is running for prosecutor against the incumbent, who managed to give such bad legal advice to the county trustees that the county wasn't able to fire a treasurer who let millions of dollars get stolen, and who led a (failed) attempt to create a police department in a township.

    He is not a lawyer, not a member of the bar association, and a retired corporate executive. He's also opposed to the failed attempt to create the new police department.

    Needless to say, he's got my vote and he sounds well-qualified for the office.

  • Stormy Dragon||

    Someone wanna tell me again how libertarians should vote for Romney because we need more justices like Scalia?

  • C Martin||

    So - in Florida we think an interior decorator needs proof of qualification to enter my home, but the police dog does not.

  • Robert||

    A priori I would agree with Scalia, and I still don't understand why it goes the other way. If I were a cop, I figure all my incentives would be toward figuring out ways to stand around chewing gum y do nothing else. Why do police have an interest in searching at all, other than that somebody pays them to? They don't get any more money for searching than they would not searching. They don't get promoted for it. Why the fuck should they care, to be crass about it? I would imagine the ideal police career would be to be invisible on the job.

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