Supreme Court

SCOTUS Approves Search Warrants Issued by Dogs

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Today the U.S. Supreme Court unanimously ruled that "a court can presume" an alert by a drug-sniffing dog provides probable cause for a search "if a bona fide organization has certified a dog after testing his reliability in a controlled setting" or "if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs." The justices overturned a 2011 decision in which the Florida Supreme Court said police must do more than assert that a dog has been properly trained. They deemed that court's evidentiary requirements too "rigid" for the "totality of the circumstances" test used to determine when a search is constitutional. In particular, the Court said it was not appropriate to demand evidence of a dog's performance in the field, as opposed to its performance on tests by police. While the Court's decision in Florida v. Harris leaves open the possibility that defense attorneys can contest the adequacy of a dog's training or testing and present evidence that the animal is prone to false alerts, this ruling will encourage judges to accept self-interested proclamations about a canine's capabilities, reinforcing the use of dogs to transform hunches into probable cause.

Writing for the Court, Justice Elena Kagan accepts several myths that allow drug dogs to function as "search warrants on leashes" even though their error rates are far higher than commonly believed:

Myth #1: Field performance is a misleading indicator of a dog's reliability. When a dog alerts and no drugs are found (as happened twice in this case), "the dog may not have made a mistake at all," Kagan says. Instead it "may have detected substances that were too well hidden or present in quantities too small for the officer to locate," she suggests. "Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver's person." This is a very convenient, completely unfalsifiable excuse for police and prosecutors. But probable cause is supposed to hinge on whether there is a "fair probability" that a search will discover evidence of a crime, and the possibility that dogs will react to traces of drugs that are no longer present makes them less reliable for that purpose.

Myth #2: Police department testing is the gold standard by which a dog's reliability should be judged. Kagan says the uncertainties of the real world "do not taint records of a dog's performance in standard training and certification settings," because "the designers of an assessment know where drugs are hidden and where they are not." That is precisely the problem when the designers are the dog trainers, as is usually the case, because they may deliberately or subconsciously indicate the locations of the drugs. Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is an expert on dogs' olfactory capabilities, observes: "Typically if a cop says, 'I train the dog every week,' he's hiding things and then going around and finding the things he's hidden. Putting something out, you as the handler, then taking the dog through, you are going to seriously skew the training; you're going to cue. You can't help it; you know exactly where the damned thing is." 

Myth #3: Police have a strong interest in making sure their dogs are reliable, so we can trust their assurances on that score. "After all," writes Kagan, "law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources." Here she echoes Justice Antonin Scalia, who during oral argument in this case last October seemed flabbergasted by the idea that a drug dog might be unreliable or that police might exaggerate its reliablity. Yet police may value a dog that alerts promiscuously if their main goal is to justify searches they want to conduct based on suspicions that otherwise would not amount to probable cause (or if they are looking for cash to seize). Once a search has been conducted, the officer seeking to justify it has a clear interest in exaggerating his dog's abilities.

Facing the courts' pro-dog bias, defense attorneys still can call expert witnesses to cast doubt on a police department's training methods, evaluation standards, or handling procedures. But that is expensive, which may help explain why the defense attorney in this case failed to do so (as the Supreme Court emphasizes). They can seek data on a dog's hits and misses, but many departments do not keep track of false positives, so there are no data to examine (as was true in this case). They can even question whether a dog did in fact alert, but that is difficult to do if the police do not videotape the encounter (which was also true in this case). The upshot is that courts generally will allow searches based on an officer's unsubstantiated claim about how an animal of undetermined reliability reacted to a person, a suitcase, a car, or a house. As Florida defense attorney Jeff Weiner puts it, the justices "have given law enforcement a green light to do away with the Fourth Amendment merely by uttering the magic words, 'My dog alerted.'"

The Supreme Court has not yet issued a ruling in Florida v. Jardines, the other drug dog case it heard last October. Jardines raises the question of whether police need a warrant to use a drug-sniffing dog at the doorstep of a home, and there is reason to believe the Court's answer will be less favorable to the government than the blanket endorsement of current practices it issued today.

I discuss the implications of both cases in the March issue of Reason.

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  1. Yet another reason we should be eating the dogs.

    1. Not the dogs, the nazgul.
      They hardly seem to pretend anymore, wiping their ass with the constitution with impunity.

      1. nice one. which one is the witch king?

        1. I can’t take credit, that belongs to another regular here but I can’t remember who

        2. Obama Biden, Witch Kings extraordinaire. God I hate it when they fly over my house on their dragons.

  2. I don’t see anything in the constitution about giving legal powers to private organizations such as ones who certify shit.

    1. It’s right there in the Whatever the Fuck We Say Clause.

    2. You might want to take another look at the Ninth Amendment.

      1. Shouldn’t you be molesting rabbits or whatever your day job is?

        Look, kumquat, the 9th Amendment is about people retaining rights, not government(s) extending powers.

        Here’s the text:

        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

        Now go take a reading comprehension refresher and see if you can’t do a better job at constitutional interpretation. That shit’s in plain English!

        1. I think he meant 10th Amendment. Even here, I don’t see how it’s relevant. Search and seizure is covered by the 4th. And the incorporation doctrine would take care of 10th Amendment problems.

    3. Where did the opinion say the organization has to be private? For all that SCOTUS told us, it could be a government agency. Or, hell, the police agency itself.

  3. How often are these dogs calibrated by independent agencies capable of certifying their accuracy?

  4. Unanimous? Fuck me.

    1. Everyone loves dogs. Who’s a cute puppy? Who’s a cute puppy? You are! That’s right! What a good doggie!

      1. That’s why we need more wise felines on the bench.

      2. “Who’s a cute puppy?”

        I’d say that would be either Justice Fido or Justice Rex.

      3. If a dog alerts to you does that give the cop the right to do a cavity search right there on the side of the road upon your person?

    2. Exactly. Unanimous? Not even one justice thought that maybe this amounts to little more than a divining rod on a leash?

      Goodbye 4th amendment.

  5. Another sign that the federal war on drug users is not going to change anytime soon.

  6. Here she echoes Justice Antonin Scalia, who during oral argument in this case last October seemed flabbergasted by the idea that a drug dog might be unreliable or that police might exaggerate its reliablity.

    Yeah, real headscratcher there. How about regardless of party the next few presidents put people on the court that aren’t either gullible, stupid or astoundingly mendacious? No? No takers? Didn’t think so.

    1. Scalia must be really convincing with his New Professionalism schtick.

  7. How do I cross examine a dog?

    1. Keep some oregano in your pocket.

    2. You know who else had an unhealthy affinity for the power of dogs?

      http://newsfeed.time.com/2011/…..king-dogs/

      1. OMfuckingG

      2. My dog talks to me all the time. Of course, I can’t understand any of it, but she will sit there and talk quite a bit. But it probably wouldn’t make sense anyway, I think she’s crazy.

  8. Anybody know where I can find dog treats with gooey oleocapsicum centers?

  9. “[I]f the ultimate power to interpret a constitution is given to the government’s own Supreme Court, then the inevitable tendency is for the Court to continue to place its imprimatur on ever-broader powers for its own government. Furthermore, the highly touted “checks and balances” and “separation of powers” in the American government are flimsy indeed, since in the final analysis all of these divisions are part of the same government and are governed by the same set of rulers.”

    M. Rothbard’s assertion is pretty well demonstrated by this unanimous ruling.

    1. Before I ever heard of or read Rothbard, I was sayin’ the same thing and the sheeple would just look at me like I wanted to be the Pope of Anarchy.

      1. I’d cite Korematsu to them and get that all-purpose scathing rebuttal known as immediately changing the subject.

  10. One of the problems is that anyone who gets on the Supreme Court is going to be of the super straight edged variety. These are kids who never worried about that joint they smoked with a buddy in their car the afternoon after finals tipping off a police dog weeks later,because they would never associate with such dubious characters

    1. Pretty sure Thomas smoked a coupla squares with his homeys back in the day.

      No – that doesn’t even seem remotely possible. Had to try – he seemed most likely to succeed, bein’ a brother ‘n’ all…sorry.

      RAAAAAAACIST on myself….

    2. To work for most government agencies you are almost required to be a little goodie two shoes (I’ma tell mom) kinda person. Not all of them, but anything involving law or military and the like.

  11. Also, given that drug induced states of intoxication aren’t illegal, how is it useful for the cops to know that drugs were used in the car a week ago?

  12. That’s a lab on that cover. I have a lab. He will “signal” anything that resembles – even in a conceptual way – “food”. So in addition to “hitting” every house that has “drugs”, Lab drug dogs will also “signal” every house that has “food” – i.e. “every” house.

    THE PERFECT DRUG-SNIFFING DOG!

    PS Still don’t unnnerstand why teh copz kill so many dogs when they’re such “trusted partners” and are treated as “ociffers”. Weird…

    1. What’s weird? You’re either cop or little people. Their dogs are cop, your dog is little people.

    2. Because non-police dogs are just like someone answering the door in the middle of the night with a gun in their hand: they might do nothing or they might kill you. Best to just shoot them.

    3. [A lab] will “signal” anything that resembles – even in a conceptual way – “food”

      I’ve noticed the same thing. You can easily convince a lab to do an action that burns 10 calories by bribing him with a 1 calorie morsel of food. They aren’t smart, but they know what they like.

  13. “You’re under arrest. This very concept negates the possibility of your leaving.”

    1. I still don’t understand the three seashells.

    2. myob!

  14. This is a very convenient, completely unfalsifiable excuse for police and prosecutors.

    Oh, yeah? Well you can’t disprove [inserte unfalsifiable assertion]. Therefore, you have no leg to stand on.

    1. You know who else has no leg to stand on…

      1. Oscar Pistorius?

      2. Max Cleland?

      3. Oscar Pistorius?

      4. Jabba the Hut?

      5. Oscar Pistorius?

      6. Oscar Pistorius?

  15. unanimously ruled that “a court

    So, it’s Wise Latinas all the way down…

  16. Welcome to the era of post-9/11 leftist jurisprudence. This is The Kagan’s first major majority opinion, correct?

    1. “Today the U.S. Supreme Court unanimously ruled”

      I suppose it can technically still be considered leftist when all of the righties agree.

    2. Oh FFS, how can you be making a left/right argument on a unanimous decision?

      1. Because, ostensibly, the leftist wing of the court should have voted against it?

      2. Obviously this never would have happened if Romney were president now.

  17. law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources.

    If the police already have an incentive not to conduct searches where they won’t find any contraband, doesn’t that obviate the need for any fourth amendment protections whatsoever? I mean if officer so and so has a bad feeling about this car he just pulled over, why doesn’t the court trust his gut instinct, since he has an incentive not to take risks or waste his time on fruitless searches.

    1. Please don’t give them any ideas.

    2. Question begging…the new jurisprudence.

    3. “wasting limited time and resources”

      Yeah, they’re really worried about that.

  18. Why don’t we just get the cops dousing rods?

    1. Dogs are more charming.

  19. How many of these justices are former prosecutors?

    1. Well, there’s former prosecutors and former prosecutros. There are the ones who switch over to be defense lawyers. Those guys know the system is gamed for the police, and are the guys who tell you things like “Never talk to the feds”.

      Then there’s the one who keep moving up the gubmint ladder. The second kind are not to be trusted.

      1. Agreed. The former now generally see the error of their former ways.

      2. Just the wise latina, in fact, she’s the only one with any criminal law experience.

    2. Many are from the academy. Many have also been justices on a Circuit Court of Appeals.

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  21. This issue is a popular loser: the only thing worse
    than not caring about the childrenz is hating dogs. At least, so
    sayeth this dog-owning parent.

  22. Given the record of the SCOTUS, I do not see how anyone can be surprised by this decision.

    1. I certainly wasn’t. I knew that there was no way the court was going to make null-and-void the entire police drug-sniffing dog industry…

      The only thing that surprised me is that the decision was unanimous.

  23. Perhaps we should put a dog on the Supreme Court. If they can effectively issue warrants like a judge, why don’t we just make it official?

    1. Rule of law is dead.

      Long live rule of dog.

      1. Hey did you hear the one about the dyslexic, agnostic, insomniac? He stayed awake all night wondering if there really was a dog!

  24. any state can of course use a higher evidence standard than required under this case. my state, for example, uses the FRYE standard, which is much more restrictive on evidence acceptance than the national standard. yet another reason (for criminal defendants)why WA is better

    also, now that we have legalized mj, drug sniff alerts by dogs are no longer probable cause. drug dogs are only useful in finding drugs when you already have PC and a warrant, since their alert can no longer be used for PC. why? because they MAY be alerting on marijuana, which is now a legal drug.

    that’s a major positive unintended consequence.

    i can say from personal experience, when working with drug dogs on quarries, etc. that the dogs were pretty good at beelining straight for the hidden drugs, despite the fact the handler had no idea where i had hid them. pretty impressive. we’d use huge warehouse type rooms, the officer would be in another room, i’d hide the drugs, then the dog would come in with the handler and locate the drugs pretty quickly. sometimes we used MJ, but usually we used cocaine, for whatever reason.

    1. It’s a shame one of those dogs didn’t bite your collaborationist balls off, shitstain.

    2. There are two questions here, only one of which you’re addressing. The first is, “can drug dogs accurately locate drugs?” If drug dogs can’t find drugs, then they’re obviously useless for providing probable cause. The answer to this, as you point out, is, yes they can.

      The second question, which you’re not addressing, is, “Will drug dogs in the field inaccurately signal when drugs are not present?” This question is just as relevant, because a dog that hits 99% of the time whether drugs are present or not cannot be said to be providing probable cause in any meaningful sense.

      Even if one were to take the dog and give it a neutral handler, provided by the certification company, and show that it was accurate in tests, this would not in any way demonstrate that the dog was not picking up cues, either intentional or unintentional, to provide false hits from its handler in the field. The only way to test the dogs’ actual performance is field statistics, which we will never get, for this exact reason.

      1. There are plenty of studies demonstrating the general unreliability of drug dogs in peer-reviewed testing. From what I recall, they give false positives anywhere from 40-90% of the time, depending on the study. But why should we trust actual research on the issue when Officer Dunphy is here to provide anecdotal assurances?

        1. i don’t disagree with the research. there are all sorts of reasons why my experience might diverge from peer reviewed research./ i am merely remarking on my personal experience. whether it’s relevant or not is up to you.

          some people seem destined to want to argue for the sake of arguing. sad.

          i posted on my experience. it’s real. maybe we just have a better drug dog than the average agency. it’s certainly possible that within that peer reviewed range, maybe some dogs are 100%ers and others suck ass.

          ever think of that?

          MY experience does not negate peer reviewed research, nor did i make any such claim

    1. http://youtu.be/1Rm-Fu8rBms

      unrelated but cool too.

  25. A song by Moby Grape comes to mind.

  26. So we now confidently put our trust in animals that routinely sniff each others private parts, lick their own private parts, and eat each others feces.

    Excellent!

    1. Yes, the Supreme Court.

      1. Indeed!

  27. One might reasonably conclude that the Supreme Court does not work for the American people or the Constitution. Gee, politicians appointing political judges. What could go wrong here?

  28. Since when did we start relying on dogs for their judgment and self-restraint? I love dogs, and have two of them. They’re sweet animals, and very intelligent, but, left to their own devices they’d spend the day chasing squirrels, eating cat poop, and humping things.

    When you train dogs, you either use treats and rewards to bribe them into doing things you want them to do, or punishment to keep them from doing things you don’t want them to do, or some combination. You associate reward and/or punishment with behavior you want the dog to either repeat or avoid. The point is, a dog doesn’t sit and stay because it has appraised the situation and decided that this is the behavior that is most appropriate. A dog sits and stays because you told it to, and the last time you did that you gave him/her a treat.

    The result is that even the best trained dogs (maybe especially the best trained dogs) are spending most of their waking hours figuring out what they need to do to get their trainers to give them more treats. If a canine really was a cop, this would be the equivalent of paying police bonuses for each traffic stop, or punishments for coming in under a quota.

    Does this mean that if a trained police dog attacks a mailman there’s probable cause to arrest him?

  29. Missing in this good discussion of the Supreme Court’s opinion is the possibility that dogs alert on the police officer’s prompt. Dogs watch their masters for the smallest of signs. An officer can tap the seam on his trousers and the dog will sit. Even if the driver notices the tap, it’s an innocent gesture. Moreover, the officer will get nastily indignant if the driver accuses the officer of such a dishonest practice. Yet officers who are motivated to conduct as many searches as possible can easily train their dogs to alert on their command – communicated by a small hand gesture.

    1. This has been shown over and over again in controlled studies. Dogs are really good at finding drugs. They are also really good at “finding” drugs in the places where an officer was told there would be drugs but aren’t.

  30. This country is dead. It will fall over shortly.

    1. Indeed. And that it was 9-0 is proof.

      Every little piss-pot, hot-shot cop out there is emboldened now more than ever.

      Land of the free and home of the brave? What a fucking laugh-line that has become.

  31. Instead of depending on police performance logs ? “Errors may abound in such records,” Kagan noted ? standard training and certification records from the dog’s training are much more reliable, she said

    How hard is to keep a log of the dogs performance?

    Shitty record keeping by the K-9 kops is is formally accepted and blessed. Kind of like a corporation saying to the SEC, “We try to keep these records, but we really suck at that. It’s not reasonable for you to demand them, do don’t bother us with them”. That’s the New Professionalism for you.

    Oh, and “Fuck You, that’s why”.

  32. I find it confusing that it is not considered a search to have the dogs sniffing someone or their property to begin with. What is the practical difference between an officer going through a suitcase with no cause and having a dog sniff the suitcase without cause? It should require the same search warrant in both cases. Illegal searching is the same whether it is done by a police officers hands, a dog’s nose or back scatter radiation. At the very least there needs to be negative consequences when nothing if found. Currently there is a strong incentive to just search as many people as possible.

  33. Unanimous? Really? The Supreme Court is starting to make the dogs’ records look pretty good.

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