Civil Liberties

This Dog Can Authorize Anal Probes


Yesterday Brian Doherty noted a federal lawsuit by a New Mexico man, David Eckert, who was forcibly subjected to anal probings, stomach X-rays, enemas, and a colonoscopy because police officers who pulled him over for a rolling stop suspected he had drugs hidden inside of him. No drugs were found. Now KOB, the Albuquerque TV station that reported Eckert's story, has discovered another motorist who was forced to undergo a similarly rigorous search of his digestive tract after being stopped for a minor traffic violation. According to police reports, Timothy Young was pulled over for failing to signal a turn and ended up exposed to the prying hands and eyes of cops and doctors acting on their behalf. Again, no drugs were found. In both cases, KOB reports, the same police dog, Leo, triggered these intimate examinations by alerting to the driver's car seat. It turns out that Leo is not so good at identifying vehicles (or people) containing drugs:

[Leo] seems to get it wrong pretty often. He might be getting it wrong because he's not even certified in New Mexico.

If you take a look at the dog's certification, the dog did get trained. But his certification to be a drug dog expired in April 2011. K-9s need yearly re-certification courses, and Leo is falling behind.

"We have done public requests to find anything that would show this dog has been trained, we have evidence that this dog has had false alerts in the past," Eckert's attorney Shannon Kennedy said.

According to the Supreme Court, none of this necessarily disqualifies Leo as an informant reliable enough to obtain a warrant authorizing the sort of humiliating searches that Eckert and Young underwent. Last February the justices 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." In practice, this means that if police say a dog is properly trained, they can get a search warrant based on nothing more than the animal's purported alert, and that search will be upheld unless a defendant can present evidence showing the dog is unreliable. Police need not produce (or even keep) data on the dog's actual performance in the field, evidence the Court deemed inferior to the results of tests in a "controlled" (i.e., rigged) setting.

Hence if it turns out that Leo's alerts frequently lead to fruitless searches, that does not necessarily mean he will be deemed unreliable, even if he is wrong more often than he is right (which is often the case with drug-detecting dogs). According to police (and the Supreme Court, which essentially has adopted their point of view), dogs that seem to be making mistakes may actually be alerting to traces of drugs so minute that their existence cannot be confirmed. Hence you can never definitively say that a police dog erred, even though there are many possible sources of error, including distracting smells and conscious or subconscious cues by handlers. Not to mention the fact that cops who want to search someone can always falsely claim a dog alerted. The upshot is that if a cop wants to explore a motorist's anus, stomach, intestines, and feces, all he needs is a dog and a judge who takes to heart the Supreme Court's unjustified faith in canine capabilities.