Supreme Court

SCOTUS Considers When Dogs Can Authorize Searches

Tomorrow the Supreme Court is scheduled to hear two Florida cases that cast doubt on the routine use of drug-sniffing dogs to generate probable cause for searches.

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Tomorrow the Supreme Court is scheduled to hear two Florida cases that cast doubt on the routine use of drug-sniffing dogs to generate probable cause for searches. The cases give the Court an opportunity to reconsider what has until now been an excessively deferential approach to a law enforcement tool that is far less dependable than commonly believed.

Florida v. Harris raises the question of how much evidence is needed to establish that a dog is reliable enough for its "alert" to justify a vehicle search. The case involves Clayton Harris, whose pickup truck 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 Wheetley walked a German shepherd named Aldo around Harris' truck, and on both occasions he reported that Aldo indicated the presence of illegal drugs by "becoming excited and then sitting" near the door handle on the driver's side. Wheetley searched the car both times without finding any substances Aldo was trained to detect. But during the first stop, he found 200 pseudoephedrine pills in a plastic bag, eight boxes containing about 8,000 matches, a bottle of muriatic acid, two bottles of antifreeze, and coffee filters holding iodine crystals. Charged with possessing pseudoephedrine with the intent of using it to make methamphetamine, Harris unsuccessfully sought to have the evidence suppressed, then entered a no-contest plea while reserving the right to appeal the legality of the search. Last year the Florida Supreme Court ruled that the search was invalid because the state had not shown Aldo's alert was enough to establish probable cause.

One difficulty in assessing this issue is that "probable cause" has never been precisely defined. In the context of a drug search, the Supreme Court has said it amounts to a "fair probability" or a "substantial chance" that contraband will be discovered. That does not mean a reliable dog must be right 100 percent of the time. But how high an error rate is acceptable? In a 2005 dissent, Justice David Souter cited examples from court cases of dogs with error rates of up to 38 percent, adding that "dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of the time." Last year a Chicago Tribune study found that vehicle searches justified by a dog's alert failed to find drugs or drug paraphernalia 56 percent of the time. While that error rate might seem surprisingly high, the Court might nevertheless deem a 44 percent chance of finding drugs "fair" or "substantial." 

In Aldo's case, there is no field performance record to check, because police did not keep track of his errors. (After all, why would anyone be interested in those?) The state argues that Aldo's two unverified alerts to Harris' truck can be explained by traces of meth that Harris left when opening the door. In other words, the alerts were not, strictly speaking, false positives, because the dog really did smell meth, just not enough to be visible. Along with the possibility that drugs were hidden so cleverly that the cops could not find them, this "residual odor" explanation is a common excuse for apparent errors by drug-sniffing dogs. But it tends to undermine the argument that an alert provides probable cause. While it makes sense that a meth cook (and meth user) would have traces of the drug on his hands, such odors might also be left behind by passengers, passers-by, or even previous owners of the vehicle. If a car once carried a pot smoker or its trunk once contained several pounds of cannabis, for how long could marijuana's ghost be detected by a dog? Depending on how persistent and common residual odors are, they could play havoc with the argument that a dog sniff reveals nothing but the presence or absence of contraband.

In addition to residual odors, a fruitless search based on a dog's supposed alert might be due to other distracting smells, poor training, poor handling, a police officer's subconscious cues, misinterpretation of the dog's behavior, or even outright lying about what the dog did. Given all the potential sources of error, the Florida Supreme Court said, "the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog," especially since there are no uniform standards for certification. In addition, "the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability." Then a judge can decide, based on "the totality of the circumstances," whether the dog's alert amounts to probable cause.

The state of Florida, of course, disagrees, arguing that certification and a handler's confidence in a dog are enough to establish its reliability. The state's Supreme Court brief claims that "no one is in a better position to evaluate the reliability of a well-trained dog's alert than the trained K-9 officer who has spent countless hours training and working with that dog." That's one way of looking at it. But a skeptic might point out that, aside from whatever emotional attachment the officer may have to this dog with which he works so closely, he has a strong incentive to believe (or at least claim) the dog is reliable, since that belief allows him to search people he suspects are carrying drugs and makes the evidence collected during such searches admissible—assuming courts agree with the officer's assessment, which they generally do. It is long past time for judges to examine such assertions more critically.

The other drug dog case, Florida v. Jardines, poses the question of whether a warrant is required for a canine inspection of a home's exterior (which can then be used to obtain a search warrant for the home). In cases involving traffic stops and luggage at airports, the Supreme Court has said the sniff of "a well-trained dog" does not count as a search within the meaning of the Fourth Amendment, based on the theory that it does not reveal anything people have a right to conceal. Does a different analysis apply to a home, given the traditionally stronger privacy protections in that setting? The question of a dog's reliability should matter here too, since 1) the idea that a sniff is not a search rests on an unrealistically sanguine view of the average police dog's abilities, and 2) a mistaken alert to a house results in a much more serious invasion of privacy than a car or suitcase search. If courts are putting their faith in "certified" dogs that are wrong most of the time, the upshot could be a lot of legally unjustified home invasions. 

Previous coverage of these cases here and here. Radley Balko got inside "The Mind of a Police Dog" in a 2011 column.

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  1. Scalia’s going to fuck this one up.

    1. Scalia’s going to fuck this one up.

      This.

      1. It’ll be Thomas and Kennedy vs. everyone else. O’Connor would have joined them, albeit in a separate opinion from Thomas.

        1. There is the chance that Scalia and Ginsberg will join them. This seems like the kind of procedural thing that they sometimes team up on.

          Probably more so on the 2nd case though, the search of the house, not the truck one.

          Wasnt Scalia on the “warrant required” side of the infrared search case?

    2. You know who else would fuck this up?

    3. Scalia: The dogs are highly professional.

  2. A badge’s hunch should be enough for the peasantry. STOP RESISTING.

    1. As soon as a dog gets elected to be a judge, I’ll be fine with the dog authorizing searches.

      1. They’re treated as officers of the law. And I’ll be OK with that just as soon as on can raise its right paw and take an oath before the court.

        1. So why don’t they just make is so that human cops can sniff around and use what they supposedly smell for probable cause?

          “I smell DRUUUUGZ, STEP THE FUCK BACK.”

          1. Hey, people can train their noses to identify species of algae, why not?

          2. I think I remember a story where exactly that happened. I can’t remember if it held up in court.

  3. They will no doubt hand down a terrible, civil liberty-eroding decision. Seriously when did the SCOTUS decide that their job is come up some absurd constitutional justification for what the government does?

    1. Unfortunately it’s a bi-partisan effort, which means it will always be thus.

      Liberal justices are angered by the constitution’s not giving the gov’t the powers to fashion utopia, and conservative justices are obsessed with a false judicial restraint/deference to “the will of the people” as expressed via elections.

      1. I feel like you could switch liberal and conservative and it would be just as valid. When it suits their interests of course.

        1. It’s like positive and negative rights.

          The other side is always for negative rights.

          Judicial activism is always awful (when it happens to you).

          You are right though, I doubt the Supremes will be willing to eliminate drug dogs entirely, which is the net effect of any rational restrictions on drug dogs. The appeals courts would be clogged with litigation about whether a particular dog was reliable enough. Technically this isn’t liberty corroding, since that is basically the status quo.

    2. When it was created?

    3. Seriously when did the SCOTUS decide that their job is come up some absurd constitutional justification for what the government does?

      1792.

    4. They will no doubt hand down a terrible, civil liberty-eroding decision.

      You mean they’re going to pour cement in liberty’s grave… just to be sure.

  4. Resistance is futile.

  5. From yesterdays Jalecki thread (fucking power outage):

    how about a FUCKING TRANSCRIPT, you know, for people who want to actually consider what was said? Instead of being dragged along in your pseudo-MTV world, see. Video sucks unless there’s a REASON for it.

    I would like to re-address that comment to everyone who has ever made a video tutorial. JUST WRITE THAT SHIT DOWN. Skipping back and forth through the timeline to catch important parts of the video is WAY FUCKING SUCKIER than scrolling through a page of text (screencaps optional).

  6. Comment for this thread: First Step towards Planet Of The Dogs. Then the dogs get a deadly disease and die off from all the unbridled dogsex, and BAM, Planet Of The Apes.

    Thanks for nothing supreme court. Hope you enjoy being netted and receiving lobotomies.

  7. OT: http://thechive.com/2012/10/30…..hq-photos/

    Steve Jobs’ super-yacht, also a store.

    1. That thing is fuckin ugly.

  8. When the dog can clearly state RAS, I’ll be perfectly okay with searches based on dogs’ opinions as experienced law enforcement officers.

    I have a lot of respect for dogs and their unique abilities. None of my dogs, prize-winning though they may be, have ever read the Constitution, however.

    1. Neither have their pig handlers

  9. So, I know everyone’s been pretty curious as to why Lucy is leaving reason, so I made some inquiries and this is what I found out. It turns out that Lucy has decided to follow her childhood dream of becoming a professional wrestler and is joining the WWE under the ring name of “Lucille Maul”. Now, it seems that to all of our chagrin she has decided to be a villain like Ric Flair or the Iron Sheik and not a good guy like the Macho Man or Leapin’ Lanny Poffo, which in my opinion doesn’t really fit, but it’s her dream and she has to live it the way she wants it.

    Trust me, this info is solid since I know Vince McMahon personally because I follow him on Twitter and stalked his wife once online.

    1. Is she leaving Reason?

      She’s still on the staff page.

      1. And you believe reason’s lies? I’m disappointed in you, man.

        1. The cover-up is what gets people in trouble.

          1. I’m sure it was orchestrated by the Jews somehow.

            We should get the Greek Golden Dawn political party on this case. They’re good with this sort of thing.

            1. Are you implying Batista is a racist, JJ? Don’t get yourself powerbombed.

            2. The “Golden Shower Party” would be more amusing.

    2. How stupid do you think we are? Keeping her tied to a radiator in your basement and forcing her to watch Trekkie porn with you 12 hours a day won’t make her love you. Deal with it.

    3. That’s so much horseshit.

      I was fucking Linda McMahon just the other night, and she never mentioned anything despite the Steigerwald posters I have on my walls and ceiling (both of her old man, and Lucy herself).

      The real dirt is, in attempting to do an expose on Sandra Fluke and show what an unbearable bitch she is, Fox News hired a reporter from Rhode Island to follow her [Fluke] around.

      Imagine their surprise one night when Fluke returned to her residence, only to see Lucy emerge a few minutes later.

      Upon further investigation, it turns out that there IS no such person as either Sandra Fluke, or Lucy Steigerwald. They are both very carefully orchestrated characters being portrayed by the world’s greatest actor, Fred Savage.

      1. That’s nonsense. Episiarch is right, except that her whole schtick is going to be wrestling and blog commenting at the same time. Lucille Maul, the Commenter.

        1. Is there ANYTHING Epi will say that you won’t immediately back him up on? You’re like that little twerp in “A Christmas Story” who hangs out w/ the red-haired bully in the coon-skin cap.

          1. Right, he and I are renown for agreeing on stuff. Like minarchy and deep-dish pizza.

            1. Yeah, that was a pretty dumb think for JJ to say, and, I mean, it’s JJ. He might even be dumber than you, ProL.

            2. You ARE a thin-crust worshiping anarchist, aren’t you?

              I’d hate to think our entire relationship up until this point has been based on a series of lies.

                1. If we were going by the book then the hours between when I get to see you would seem like days. By the book.

                  1. Which book? The Guide to Commenting at Reason’s Hit & Run Blog?

                    1. Is there such a thing? Can I borrow your copy? The insider humor here borders on impenetrable. A resource guide would be, like, amazing.

      2. That’s a total load, you asshole! Just because something happens on Family Guy doesn’t mean it’s true! I have my sources, and they’re more reliable than that whore Linda who wouldn’t sleep with me!

        1. How the fuck does “Family Guy” play into this? I don’t watch such pedestrian and predictable shows, so I have no earthly idea what you’re prattling on about.

          Maybe you should have a deep-dish to settle the hunger-induced insanity you appear to be afflicted with.

          1. You’re lucky I can’t reach through the internet to strangle you right now, JJ. We’re still on for later, though, right?

            1. For strangling you mean?

              Of course.

              1. You promised dinner first, though! Don’t think I forgot that!

                1. By dinner I meant more strangling, duh, everybody knows that.

                  How long have you been in this subculture, anyway?

                  1. You’re embarrassed to be seen out in public with me, JJ, aren’t you! Why?!?

                2. Is “dinner” internal code for foreplay involving a Taser and leather whips?

                  1. No, it’s our safe-word. But being the fat greasy wop that he is (which is why I’m embarrassed to be seen in public with him, but not in pubic, if you get my drift hehehe) he confused it for actual dinner.

                    1. Make sure you get the safe word worked out, dude. Erotic asphyxia can go real bad otherwise.

                    2. I dunno, David Carradine looked like he went out pretty happy.

                    3. Fat?!? And after I went manorexic for you?!?

      3. Fred Savage, doesn’t he play Dave Weigel as well?

        1. Nah, Weigel is played by his douchebag older brother, who was also in Monster Squad, which shares a word in the title with Little Monsters, which starred…wait for it…FRED FUCKING SAVAGE!!!

          OH FUCK YES, I am that good.

    4. OK, more info just coming in now: her signature move will be called the “Warty Wartcardo” and will involve the top rope, anal prolapse, and pain. Details are sketchy right now as she’s being really tight-lipped about it, especially the fisting aspect of it.

      1. Any word on the uniform yet?

        1. I was told, and I quote: “It’s going to make Koko B. Ware look like The Genius“. That’s all I know.

        2. I was told, and I quote: “It’s going to make Koko B. Ware look like The Genius“.

        3. I was told, and I quote: “It’s going to make Koko B. Ware look like The Genius“.

            1. Nothing can rival The Shockmaster, dude. Not even Lucille Maul.

      2. tight-lipped about it, especially the fisting aspect of it.

        I see what you did there.

    5. I wonder if she still lurks here. I mean she would for me, but you guys?

      1. Episiarch’s basement probably has Wi-Fi, so we may see her in the near future, begging for rescue.

        1. Well, we won’t see her b/c it’s too dark for the perv cam to function correctly without his adjusting the lights in person, but we’ll read some hurridly typed pleas, which we will then criticize for grammar and punctuation.

          1. Pleas resulting from being forced to watch Carnosaur and Starship Troopers 2: Hero of the Federation back-to-back on infinite loop.

            Epi’s one cruel mother.

            1. Ouch. I’m a fan of shitty movies and even I winced at that. Touche salesman.

              1. Can you imagine what poor Lucy’s experiencing right now? Shit, we gotta rescue her. You engage in perverse sexual antics with Epi while I sneak her out.

                1. Done and done.

                  1. JJ’s not exactly renowned for his staying power.

                    1. Someday, love will find you,
                      break those chains that bind you.
                      One night, we’ll remind you,
                      how we touched and went our separate ways.

                      If he ever hurts you,
                      true love won’t desert you.
                      You know I still love you,
                      though we touched and went our separate ways.

                    2. I have this weird, Steve Perryesque feeling.

        2. It’ll be a lot like this.

          1. You guys are a bunch of idiots. I designed my basement to be an exact replica of the room from Videodrome. It’s well lit; I want you to see it.

            1. I designed my basement to be an exact replica of the room from Videodrome.

              By which he means he has James Woods tied up in his basement instead of Lucy.

              NTTAWWT.

              Though there is something profoundly, terribly wrong with the mural painted on his ceiling in rococco style showing Keith David and James Woods 69 while John Travolta looks on and masturbates furiously whilst holding a copy of Battlefield Earth in the other hand.

              1. I’m exhausted after that. It was literally the worst image I could conjure.

                1. You must hate us all very much, JJ. I’m touched.

                2. Holy fuck, Jim. Are you trying to bring my lunch back up?

                  And I’m definitely not weirdly turned on by that. No, siree. Not at all.

                  *Gulp*.

                  1. I hope Sullum appreciates the effort we went through to utterly shit all over this thread.

                    1. The things we do for Lucy. Sometimes it amazes even me.

                      Oh, sorry, Lucy, I meant “Lucille Maul”.

                    2. May God have mercy on our demented souls.

                    3. May *Lucy* have mercy on our demented souls.

                    4. I didn’t know we were moving to deify so soon. Fuck it. Let’s do it!

            2. LONG LIVE THE NEW FLESH

    6. Someone posted as Lucy in the Putin thread.

      1. Don’t you lie to me about this and get my hopes up. I couldn’t take another disappointment like that.

        1. I would not fuck around about this.

    7. Lucille Maul is a Roller Derby name.

      Steiger the Tiger might be a wrestling name.

      1. So are you implying that my sources are bad and Lucy is joining the Rat City Rollergirls as Lucille Maul, or that Lucy chose her ring name poorly? Because I don’t like either of those implications.

        1. She’s in Seattle? I did not know that.

      2. Actually, I Googled it and Lucille Maul is an actual registered Roller Derby name: http://www.tumblr.com/tagged/ct-rollergirls

        Somewhere down the page is a picture, though it’s not clear which one is Lucille.

        1. Double life, perhaps?!

        2. I’m officially pissed off by this. Fucking Internet.

  10. “The state argues that Aldo’s two unverified alerts to Harris’ truck can be explained by traces of meth that Harris left when opening the door. In other words, the alerts were not, strictly speaking, false positives, because the dog really did smell meth, just not enough to be visible.”

    And what are these Fluxions traces of meth? The Velocities of evanescent Increments? And what are these same evanescent Increments? They are neither finite Quantities nor Quantities infinitely small, nor yet nothing. May we not call them the ghosts of departed quantities drugs?

    And to repeat what I said in a different thread: the whols justification of using a dog without consent is that it is supposedly an “open air” search. It is an oxymoron to claim that an open air sniff can establish any suspicion about anything other than the open air. Saying that you’re just sniffing the air and then trying to use the result as evidence for a particularized source ought to be laughed out of court.

    1. The unverified alerts can be explained by the dog sensing the Police Officer thought Harris was a scumbag who had to be up to something.

  11. Or, you know, we could just end the War on Drugs and not worry about this shit.

    1. But then people might get high.

  12. http://chivethebrigade.files.w……jpg?w=499

    Retarded race-mongering assholes saying team’s “too white” — peak retard closing in.

    1. You might think so, but just it’s just a small plateau. Trust me, it’s retards all the way down.

    2. How is that link related your post? Not that I’m complaining. And btw that girl on the left doesn’t look totally white, but she’s looks really damn fine

  13. On both occasions Wheetley walked a German shepherd named Aldo around Harris’ truck

    This is where I get lost. Why do they need a dog to confirm evidence of an expired plate or a broken light?

    1. Because Officer Scrotum’s IQ is confined to a single-digit score would be my guess.

    2. “Hey, can’t a guy even walk his dog without getting hassled about it? This *is* a free country, you know!”

    3. Maybe the dog had to piss?

      …on someone’s fourth amendment rights.

      1. That’s a nice protection against illegal search and seizure….

        FOR ME TO POOP ON!

    4. it’s called “fishing”.

      hth

      1. Oh yes, I know. I just think it’s bullshit and I question its legality.

        1. imo, in a perfect world… it would not be allowable without at least reasonable suspicion.

          the reason it isn’t is because if a car is already lawfully stopped (or parked and an officer happens upon it), the courts in most states don’t see it as a privacy intrusion. the dog is (theoretically) detecting particles OUTSIDE the confines of the vehicle. iow, if an officer opens a door and looks inside, they are violating a privacy interest, but that you have no privacy interest OUTSIDE your car. just as an officer can stand anywhere outside and look in from various angles and if he sees something, it’s “plain view”, the argument is any detection of particles OUTSIDE the vehicle which is the only thing the dog CAN detect is essentially plain view, or in some jurisdictions, not a search.

          i grok the logic. a simple solution would either be legislative OR a state constitution with greater privacy protection

          since my state const. has a privacy protection ALL SORTS of searches legal in other states are suppressable here. which imo is a good thing.

          1. but i think based on the federal constitution, as amatter of CASE LAW, a dog sniff from outside a vehicle should be legal even if a mere fishing expedition because there is no privacy intrusion. that’s descriptive based on the constitution, not how i WANT it to be. that sets aside the issue of accuracy.

            brought up at volokh.com is the issue that the dogs can smell just residue, that in some respects is so ubiquitous that it shouldn’t be probable cause of possession, because we are talking literally microscopic traces of the drug. there’s no way to distinguish.

            of course if we just ended the stupid WOD we wouldn’t have to ask all these questions

  14. Yet another reason to spray *everything* with essence of female dog.

  15. Yeah, I’ve heard this reasoning before on cop shows and thought…. wow, isn’t that perfect. The logic:

    Even though the dog signalled drugs were there and none were found, the dog is likely smelling ‘remenants’ of drugs which were there.

    Of course in the land where proof is not needed to take away citizen rights, the dogs are in fact correct 100% of the time.

    Meanwhile the dog only knows to watch and react to humans. One study shows that while dog owners think their mutts ‘show’ their bad behavior, dogs in fact are only reacting to the human.

    Wonder how often a handler could be part of the problem?

    Not that the facts will matter all that much… though I would love to be surprised 🙂

    1. “Wonder how often a handler could be part of the problem?”

      Years ago, I shared rented space for a shop in a warehouse. Another renter swore his dog ‘knew’ when a black guy was around.
      Never occurred to him that he’d trained his dog to do so.

  16. “The state of Florida, of course, disagrees, arguing that certification and a handler’s confidence in a dog are enough to establish its reliability.”

    We say so and that settles it?
    Pretty sure the concept of “evidence” is a mystery to these folks.

    1. some states have a much stricter standard. WA, where i live, uses the frye standard.

      http://en.wikipedia.org/wiki/Frye_standard

      i once spent 45 minutes being voir dire’d (pursuant to frye) in order to get miranda accepted as evidence in a DUI trial.

      similarly, it took about that long to get my testimony in on kavalactones in a DUI trial (dui with the drug kava kava).

      it’s good, because it’s a pretty rigorous standard. it can be a pain in the arse, but that’s ok.

      1. not “miranda”. should be “nystagmus”

      2. Dunphy (the real one)| 10.30.12 @ 8:33PM |#
        “some states have a much stricter standard. WA, where i live, uses the frye standard.”

        From what I’ve read, that would mean dog-sniffing would be inadmissible.
        Pretty sure dogs’ ‘signalling’ isn’t any more reliable than a coin-toss.

        1. dog sniffing is ok
          but WA doesn’t accept search of MV incident to arrest, nor do we accept the “motor vehicle” exception for search warrants.

          iow, unless there is exigency (very rare), to search a car i need either consent or a warrant.

          we even have people when they report a stolen vehicle sign a waiver that we can search their vehicle if we locate it. technically, a person in a stolen car SHOULD have no standing and no privacy interest in the car, since it’s NOT THEIR CAR and they stole it, but our courts are SO privacy concerning that we do it to CYA. imagine my searching a car after arresting joe dirtbag who is in it and it’s STOLEN. and finding contraband. and joe getting it suppressed cause i searched without a warrant. classic “standing” case law says he has no standing. but i digress.

          when we get a positive off a dog sniff, we can ask for consent. or apply for a warrant. ime, judges almost always sign based on a sniff, but we don’t do sniffs without at least reasonable suspicion, at least in my agency. so, we don’t do them randomly or based on a hunch.

          i’ve written about a dozen warrants off of a sniff (when i worked street crimes detective) and all were approved.

          1. You have no need to search a recovered vehicle. Just let the owner have it back. Unless you have a specific reason to think more stolen property might be inside, in which case it should be worthwhile to get a search warrant.

          2. Dunphy (the real one)| 10.31.12 @ 12:52AM |#
            “dog sniffing is ok”

            Not by the Frye Standard, it isn’t. There isn’t one shred of evidence that dogs signal better than a coin toss.

  17. there has been, and continues to be, some good coverage and discussion of the sniff cases over at volokh.com

    i’ve quarried (hey, it’s overtime) with k-9 when they train their dogs. all i have to say about that is thank god for protective arm sleeves.

    i posted this link last week. it’s good stuff, maynard
    http://www.volokh.com/2012/10/…..-v-harris/

  18. In related news, Ars Technica reports that a federal judge ruled that police officers in Wisconsin didn’t violate the Fourth Amendment when they installed cameras on private property without a warrant.

    http://arstechnica.com/tech-po…..t-warrant/

    1. Do you think the courts have a bad copy of the Constitution or something? Originally, the Bill of Rights had two amendments before the current First Amendment, which would make their Fourth Amendment, let’s see, our Second.

      Therefore, when a judge is asked whether a search violates the “Fourth Amendment”, he sees nothing impairing the right to bear arms and says, “No, that’s all okay.”

      1. By Lucy, you’ve got it!!

        1. Those seven years of law school finally pay off.

      2. I can’t imagine why the police putting a camera on private property doesn’t qualify as a search.

        I mean, the police presumably need to physically enter the private property in order to place a camera there.

        I guess they were saying that the freedom from searching your backyard or an open field, like in this case, isn’t protected by the 4th becasue that open field is neither “persons, houses, papers, [nor] effects”.

        Seems to me that if the cameras are recording people, then those people should qualify as “persons”. And if recording their activities doesn’t qualify as searching them, then they’re torturing the meaning of the word “search”.

        My understanding is that “effects” refers to peoples belongings. I once saw the cops climb the fence into one of my neighbor’s yard–looking at her young tomato plants suspiciously. As far as I’m concerned, those tomato plants were her effects…

        I don’t know if they have a warrant, but I’d guess they did. If one of the neighborhood busybodies, who didn’t like her sexy ass, called it in, I can understand them getting a warrant for…getting a call that someone was growing plants with seven leaves in her backyard.

        But why couldn’t they get a warrant in this case? Is it really so hard? Not that respecting our rights was meant to be convenient, but, all that aside, do judges routinely turn down requests for search warrants in this country? Seems like they should be pretty easy to get.

        1. why would recording somebody be a search?

          there are seperate issues vis a vis standing, etc. when recording from private property as well as recording in locations where persons have a privacy interest, etc. but recording is not a search.

          imo, you are torturing the meaning of search by saying recording = search

          if a cop is standing on a street corner watching you is he searching you?

          no (at least not a search that recognizes a privacy interest. if he is specifically looking at you to see if he can see something illegal, you could say it was a open view search, but even that is stretching it)

          if he chooses to record, there is nothing magical that happened that turned it into a search

          search means, in its broadest sense, to look in an area (to include a person’s pockets etc) for something

          all recording does is RECORD what is happening . it doesn’t change a nonsearch into a search.

          i work in a state with one of the strongest privacy protections in the nation. we are VERY limited in our search and seizure power compared to most states. not even our courts are going to say that recording somebody is a search. we do have a law prohibiting recording of private conversations w/o both parties consent/knowledge, but that’s a legislative determination, nto a search issue

          1. why would recording somebody be a search?

            If walking onto somebody’s property and looking around is a search, then why wouldn’t walking onto somebody’s property, installing a camera, and looking around with it be a search, too?

            Why would holding a camera somehow make an illegal search okay?

            The thing is, too, in this case, apparently, they went to go get a warrant–it’s just that they installed a camera before they got the warrant. And then the camera captured video evidence from the time period before they got the warrant!

            If they didn’t need a warrant, why did they go ask for one? And why would evidence from before they had a warrant be admissible? If they didn’t need a warrant, why did the judge give them one?

            Since when is evidence collected from a search conducted before a warrant was obtained admissible?

            if a cop is standing on a street corner watching you is he searching you?

            Is the street corner private property?

            all recording does is RECORD what is happening . it doesn’t change a nonsearch into a search.

            That depends on context, doesn’t it?

            A cop doesn’t need to get a warrant to search your car if you left a roach smoking on the dashboard. …but if there’s no evidence that anything illegal is going on, then an illegal search isn’t made legal just becasue a cop sticks a camera into your car.

            1. Placing a camera on private property without the owner’s permission is the same thing as putting a GPS signal on a vehicle without its owner’s permission.

    1. Those comments are derptastic.

    2. Short asked for a receipt showing proof of purchase or the sign would be taken.

      1) “Your dog ate the receipt.”

      2) “No, thank you.”

      1. “Do you have a receipt for those donuts, officer? Cause if you don’t I’m going to have to confiscate them.”

    3. I like the other story about two freestater roommates in Manchester occupying both major party nominations for a statehouse seat. That’s one way to win…

      http://freekeene.com/2012/10/2…..ee-stater/

  19. The Steigerwald thread makes me wonder how many of the reason staff lurk on the comments section, and what they think of us.

    Not exactly waiting for an answer.

    1. Many do, few post unless something really draws them out of the shadows.

    2. There is no staff.

      There is a complex algorithm that copies pieces of articles linked in the comment section, then creates sentences around those articles based upon trending words for that week. It doesn’t even know what it’s writing.

      Seriously, if you think the writing here passes the Turing test, I’ve have a magnificent bridge for sale.

      Radley Balko and Virginia Postrel were the last organic beings to produce content for this website.

      1. It’s not that complex.

        1. Says you.

          Remember the Weigel Bug?

          It took a week of all night coding sessions and a couple of cases of RedBull to fix that goddamn thing.

          Jesus.

          1. In a relative sense, perhaps. It’s probably more difficult than Epi’s address parsers.

      2. What about the chimps tapping at the typewriters who will eventually be able to transcribe all of Shakespeare’s works?

        1. Spear chucker? You racist.

  20. Is it really wise to leave probable cause at the discretion of someone that can be bribed with Beggin’ Strips?

    1. No, not wise, but convenient.

  21. The old dog search justification:

    “The dogs aren’t searching personal property because they are only sniffing molecules in the air outside of the personal property.”

    Is a load of shit.

    The dog is being used to make a determination that there may be the possibility of something being inside the personal property, and therefore may as well be a search of the personal property.

    Infrared cameras technically detect only heat that has left personal property, but their use is nonetheless considered a search and requires a warrant.

    Anything that is used to find out what is inside personal property, that a cop’s human senses can not do, should be considered a search and require a warrant to be used.

    1. Look man, all this ‘right to privacy’ talk is great when we’re discussing hypothetical situations, but the reality is that there are people out there that want to get your kids hooked on dope.

      The constitution was a great thing for the time it was written, but they didn’t have scum growing marijuana, and fields of poppies ready to be processed into narcotics. We’ve got kids to think about here, man.

      If George Washington were alive today he’d be working for the DEA, kickin’ down doors and bustin’ some hippy heads in.

    2. D R and S,
      “The dogs aren’t searching personal property because they are only sniffing molecules in the air outside of the personal property.”
      Is a load of shit for even more basic reasons: The dog may be sniffing, but it’s also watching the handler for clues.
      Once the clue is given (facial expressions will do), the dog ‘finds’ something.
      A ouija board is equally reliable.

      1. A ouija board is equally reliable

        Exactly.

        A dog is an animal that really, really wants to please its handler, and we all know what the handler wants from the dog. If there were a machine who’s inventors claimed could do what police dogs are purported to do, but had a success rate of less than chance it’d never be accepted in court. Ever.

        I told this story here before but here goes it:

        I was on a train in the southwest and the guy across the aisle had a big frakin plastic pill bottle with a couples of skank Z’s in it. Also, every stop he’d get off and smoke a huge joint. I could smell him across the aisle.

        So around El Paso they brought drug dogs on the train for some kinda sweep. Those fuckin’ dogs didn’t pay that dude one goddamn iota of attention.

        Same thing as when I was in high school. They’d bring the dogs in to smell all of the lockers and not find a goddamn thing. I know for a fact that there were drugs in those lockers, but they got nothing. Not a goddamn thing.

        We’re truly fucked as a nation if this goddamn thing gets through. There will be no end to official harassment justified by the nose of a fucking animal.

      2. It’s worse than that. Whether the dog alerts or not is irrelevant. The handler merely has to SAY the dog alerted. It’s worse than unreliable, it’s deliberately fraudulent, and is well known to be by all. What I mean is it is a scam designed to fool people of good conscience, and is known to be such by the police, prosecutors, judges, lawmakers, reporters, etc.

        1. The handler merely has to SAY the dog alerted.

          Oh jesus, I didn’t even think of that. Fuck man, how did I miss that.

          Goddamn, it’s even more corrupt and evil than I thought.

        2. Well if you assume the cops are dishonest, they can just lie and say you consented to a search without bothering with the middledog.

          1. Cops do perjure themselves regularly as there is little procedural formality that requires proof that what they say in court or write down is accurate.

          2. Well if you assume the cops are dishonest…

            You haven’t had much experience with law enforcement officers, have you?

  22. I think the alt-text summarizes the dog’s attitude towards providing probable cause.

    Same for the master’s, for that matter.

  23. If I recall from my crim law class, there is already a dog sniffing case. It as remarkable because they were using a dog to search for drugs. But SCOTUS simply said that using a dog was not a search in the context of the 4th amendment. Fascinating. Take A and make it Not-A. That is the power of legal reasoning. A dog search isn’t a search simply because they say so.

    So given that SCOTUS rarely binds itself to interpret the Constitution according to reality and logic, and given their deference to let the pigs do whatever the fuck they won’t, I have little doubt that these cases will go the state’s way.

    The Constitution is dead. It doesn’t limit the federal government in any meaningful way. Administrative agencies basically do whatever the fuck they want.

    1. Jesus you’re depressing.

      Totally correct, but man, what a downer.

    2. IIRC the reasoning was that the dog can’t give information on anything other than the presence of contraband, so it’s not a search in the sense of an examination of all the articles in an area. And that case occurred during a traffic stop justified for other reasons, rather than having the officers show up at someone’s house looking for an excuse to search the home.

      Remember, the 4th is supposed to protect innocent people, not guilty people. The purpose of the exclusionary rule is not to get guilty people off, it’s to discourage cops from harassing people who are probably innocent. Too often we forget that around here, and confuse liberty with license for lawbreaking.

      1. the dog also, during a sniff is only detecting particles/material OUTSIDE the vehicle

        that is huge in this issue. iow, if a dog gives a positive alert, it is (presuming it is “working” properly) detecting particles outside the motor vehicle. how is there an expectation of particles outside your car even if emanating from within?

        with exceptionally advanced technology, though, all sorts of very private things can be detected from outside a house with infrared, etc. and in those cases the courts have said that even though the particles (or in this case waves that act like particles too or vice versa – iow heat energy) are detected from outside the house ona public street, that it’s still “intrusive”.

        in those cases it comes down to technology, whether it’s in “common use”.

        if we get to the point where such technology is in common use by ‘civilians”, then presumably LEO’s could use it w/o a warrant w/o privacy issues

        1. “the dog also, during a sniff is only detecting particles/material OUTSIDE the vehicle”

          Hahahahahahahahahaha-HA!

          Its funny because I already mentioned that this sort of justification is a load of shit.

          Common use should not matter. What should matter is that the cop’s human senses can not find out things that the dog or technology supposedly can.

      2. Too often we forget that around here, and confuse liberty with license for lawbreaking.

        We? Do you have a fucking mouse in your pocket?

        No one’s confusing liberty and lawbreaking; some just realize that liberty means that having some pot in your car shouldn’t be cause for some oakley wearing asshole with a buzzcut to throw you in a cage cause his doggie said it was okay. Jesus.

        You wouldn’t know liberty if it bit you in the ass. Christ, your definition of liberty is whatever 50% of the tyrants in congress say it is. Fuck a duck.

      3. Yeah, there is an idea around here that crime is like football; if the police do a false start or pass interference, it’s 10 yards and repeat first down. The Courts don’t see it that way.

        The judges are only worried about keeping the cops in line on a procedural level (i.e. avoiding them just sweeping neighborhoods for morals and safety searches). If we had a way to do that that didn’t exclusively work by letting guilty people off you’d probably have a lot more liberal court. The irony of the current situation is that if you are innocent and your rights get violated you don’t have any remedy.

        How about this: if the cops violate your 4th amendment rights and they don’t find any evidence, you get a to take 10% of the cops paycheck for a year and the state has to pay $20,000. That would clean things up better than anything else.

        1. I think the criminal prosecuting departments should just be made to compensate for all fuck ups. That would include defense costs and expenses when defendants are found not guilty.

    3. this is utter rubbish.

      if you only read certain cases, you might think that. otoh, if you read the BODY of 4th amendment case law you will say tons of ways that the constitution (interpretation thereof) SUBSTANTIALLY limits agencies. let’s remember cases like miranda, etc. which are nowhere in the constitution, but due to case law are still law o’ the land.

      there are tons of cases that routinely get suppressed btw where an officer COULD have easily lied to get the evidence admitted, which goes to show MANY officers would never consider lying. it’s not hard to concoct a lie that based on case law you KNOW is going to fly, yet in the vast majority of circ’s officers do no such thing, and take the suppression as it comes.

      i’ve made searches that have been suppressed, fwiw, but i would never in amillion years stretch the truth even a millimeter to make a bad search good.

      that aside, you may think the constitution is dead, but overwhelmingly when we have people attend “citizen’s academies” one of the comments that is very common is that people remark on how restricted we are – iow they are amazed at how much the constitution DOES restrict leo’s in the course of searchin’ and seizin’

      that’s not to say that there isn’t some horrible drug related case law that i think is a ridiculous erosion of the 4th. but there is PLENTY of case law that runs the other side of the pendulum swing, too

      1. I could bring you the head of a cop who is willing to commit perjury if it was worth the trouble.

  24. Too late to to get this entertaining story across effectively, ergo 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

    http://www.ExoticJewishHistory.com

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

    1. In your professional opinion, would your mp3 series be an appropriate x-mas present for a 6-year-old boy?

      1. In my *personal* opinion there couldn’t possibly be a more appropriate gift for the tike. In my *professional* opinion however I’d say it would make a more suitable gift for an intellectually curious adult interested in being enlightened and entertained. If you like either the “Great Courses” type of stuff or “This American Life” I’m entirely confident that you’ll like my series too. It sells in stores for $159.99, on my site for $59.99 and via the special link posted above for just $39.99. Best of all, you’re not risking anything. If you don’t like it just send me an email and I’ll refund you. No worries.

  25. Thats pretty scary when you think about it man.
    http://www.ok-anon.tk

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