Robert J. Burns, a 55-year-old retired nurse who lives in St. Louis, was returning from a trip to the West Coast last October when his white Nissan pickup truck was pulled over on Interstate 40 near Amarillo. Burns was carrying a 12-foot aluminum fishing boat on top of the truck, and he had been struggling against high winds that kept pushing him toward the shoulder. The sheriff’s deputy who stopped him thought he might be drunk.
“He asked me to step out and come back to his car,” Burns says, “and that’s when I noticed the dog in the back seat, a yellowish Lab. I explained that I hadn’t been drinking and my getting on the shoulder of the road was strictly from the wind. He said that he was going to write me a warning, and I said, ‘OK, that’s fine.’ He asked me if I had any drugs in the car. I said, ‘No, sir, I don’t do drugs, and I don’t associate with people who do.’ He asked me would I mind if he searched my vehicle, and I said, ‘Well, yes, I would mind if you searched my vehicle.’ ”
But thanks to the U.S. Supreme Court, the deputy did not have to take no for an answer. In the 2005 case Illinois v. Caballes, the Court declared that “the use of a well-trained narcotics-detection dog…during a lawful traffic stop generally does not implicate legitimate privacy interests.” So the deputy was free to walk his dog around Burns’ truck. “He got out with this dog and went around the car, two or three times,” Burns says. “He came back and said the dog had ‘passively alerted’ on my vehicle.” Burns, who is familiar with drug-detecting dogs from his work as an M.P. at Edwards Air Force Base in the 1970s, was puzzled. Properly trained police dogs are supposed to indicate the presence of drugs with a clear, objectively verifiable signal, such as sitting down in front of an odor’s source or scratching at it. Yet “the dog never sat down, the dog never scratched, the dog never did anything that would indicate to me that it thought there was something in there.”
The deputy and another officer who arrived during the stop nevertheless went through Burns’ truck for half an hour or so, reaching up into the boat, perusing his cargo, looking under the seats and the hood, examining the gas tank and the undercarriage. They found no trace of drugs, although they did come across the loaded pistol that Burns mentioned to them once it was clear they planned to search the truck.
“They were cool with the gun,” Burns says. “If it had been California, God knows what would have happened.” He was so relieved that he barely minded the delay and inconvenience, which stretched a brief traffic stop into more than an hour. “I’m not a lawyer, and I’m not a super-libertarian,” Burns says. “Once I realized that the pistol was not going to be an issue, man, they could have spent all day going over that car and under that car. My only concern was that one of the guys might have slipped something in to cover up for the fact that they didn’t find anything.”
That’s one way of looking at it. But even if you are neither a lawyer nor a super-libertarian, you might wonder 1) how often this sort of thing happens, 2) how it came to be that police can get permission from a dog to rifle an innocent man’s belongings, and 3) whether that state of affairs is consistent with the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” The answers, in brief, are 1) fruitless searches based on dog alerts happen a lot more often than commonly believed, 2) dogs acquired this authority with the blessing of credulous courts mesmerized by their superhuman olfactory talents, and 3) this dog license is hard to square with the Fourth Amendment, unless it is reasonable to trust every officer’s unsubstantiated claim about how an animal of undetermined reliability reacted to a person, a suitcase, a car, or a house.
All of these issues come together in two cases the U.S. Supreme Court heard a few weeks after Bob Burns was pulled over. Florida v. Harris raises the question of how a judge knows that a dog’s alert is reliable enough to justify a search. Florida v. Jardines asks whether police need a warrant to use a drug-sniffing dog at the doorstep of a home. These cases, which will be decided by this summer, give the Supreme Court an opportunity to reconsider its heretofore unshaken faith in dogs, or at least limit the damage caused by the amazing canine ability to transform hunches into probable cause.
‘A Creature of Legal Fiction’
The foundational text of the courts’ canine cult is U.S. v. Place, a 1983 decision involving an airport search that found a kilogram of cocaine in a suitcase to which a dog had alerted. The Supreme Court unanimously concluded that the Drug Enforcement Administration (DEA) violated the Fourth Amendment by keeping the bag for 90 minutes before presenting it to a dog. But instead of stopping there, Justice Sandra Day O’Connor, in a majority opinion joined by five of her colleagues, gratuitously ventured into an issue that had not been addressed by the parties to the case and did not need to be resolved for the Court to decide whether the seizure and search were legal. O’Connor opined that “a ‘canine sniff’ by a well-trained narcotics detection dog…discloses only the presence or absence of narcotics” and “does not expose noncontraband items that otherwise would remain hidden from public view.” Because of this specificity, O’Connor concluded, “exposure of respondent’s luggage, which was located in a public place, to a trained canine…did not constitute a ‘search’ within the meaning of the Fourth Amendment.”
Two decades later, when the Court extended this principle to cars in Caballes, dissenting Justice David Souter noted that O’Connor’s conclusion “rests not only upon the limited nature of the intrusion, but on a further premise that experience has shown to be untenable, the assumption that trained sniffing dogs do not err.” In reality, Souter said, “the infallible dog…is a creature of legal fiction.” Souter cited examples of dogs accepted as reliable by courts that had error rates of up to 38 percent. He added that “dogs in artificial testing situations return false positives anywhere from 12.5 to 60 percent of the time.”
If anything, Souter gave drug-sniffing dogs too much credit. A 2011 Chicago Tribune analysis of data from suburban police departments found that vehicle searches justified by a dog’s alert failed to turn up drugs or drug paraphernalia 56 percent of the time. In 1979 six police dogs at two public schools in Highland, Indiana, alerted to 50 students, only 17 of whom possessed contraband (marijuana, drug paraphernalia, and cans of beer), meaning the false positive rate was 66 percent. Looking at the performance of an Illinois state police K-9 team during an 11-month period in 2007 and 2008, Huffington Post reporter Radley Balko found that the dog sniffed 252 vehicles and alerted 136 times, but 74 percent of the searches triggered by those alerts did not find measurable amounts of illegal drugs. Similarly, a 2006 study by the New South Wales Ombudsman in Australia, an independent agency analogous to the U.S. Government Accountability Office, looked at more than 10,000 searches of people triggered by dog alerts and discovered that 74 percent of them found no illegal drugs. More-recent data from New South Wales indicate an even higher error rate: 80 percent in 2011.
Those numbers look almost respectable compared to the results of a 1984 operation in which Florida state police stopped about 1,330 vehicles at roadblocks and walked dogs around them. If one dog alerted, another was brought in, and vehicles were searched only if both dogs indicated the presence of illegal drugs. That happened 28 times, but those searches yielded just one drug arrest. In other words, even when two dogs both signaled the presence of drugs, they were wrong 96 percent of the time.
What is going on when dogs alert and no drugs are found? Police and prosecutors usually claim these are not really false alarms because the dog must have detected otherwise imperceptible drug traces left on clothing, cars, or personal possessions. “It’s a convenient excuse,” says Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is an expert on dogs’ olfactory capabilities. While dogs can indeed smell traces of drugs that are no longer visibly present, he says, “no one knows how big that reality is.” When police use drug residue as an all-purpose explanation for what appear to be erroneous alerts, Myers says, “the first term that comes to mind involves a male bovine and the ingestion of grass.”
Consider how Christopher Jbara, a U.S. Border Patrol agent, explained an unsuccessful dog-triggered search observed by a Tucson Citizen reporter in 2008. “He said the car had most likely been contaminated on one side of the border or the other and it was likely the driver was not aware,” the Citizen reported. “He said the car’s windshield had been washed by a window washer on the street before crossing the border, and the water used to clean it could have been contaminated with bong water.”
New South Wales Police Inspector Chris Condon tells a somewhat more plausible story. In response to the 2011 numbers indicating that his department’s dogs were wrong four times as often as they were right, he told The Sydney Morning Herald that “80 per cent of indications by the dogs result in either drugs being located or the person admitting recent contact with illegal drugs.” The implication is that in most cases where people were searched and had no drugs, they had recently smoked marijuana (by far the most common drug found in successful searches) or been around pot smokers, which is why they smelled suspicious to the police dogs.
But that supposition is impossible to confirm, and it is not even clear what Condon means by “recent contact.” More to the point, the likelihood of actually finding evidence of a crime is the relevant consideration (in Australia as well as the United States) in determining when police may search someone, meaning a dog’s alert can justify a search only if it indicates that drugs are currently present.
‘They Can Say Whatever They Want to Say’
The issue of what counts as a false alarm is central to Florida v. Harris. The defendant, Clayton Harris, 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, after Harris declined to let Wheetley search his pickup truck, the officer walked a German shepherd named Aldo around the vehicle. On both occasions, Wheetley reported, Aldo alerted by getting excited and sitting down in front of the driver’s side door handle. And on both occasions, Wheetley searched the truck without finding any substance that Aldo was trained to detect. But during one of the stops, Wheetley found 200 pseudoephedrine tablets, along with other chemicals and supplies used to make methamphetamine, which led to Harris’ arrest. Harris pleaded guilty to possession of a listed chemical with the intent to unlawfully manufacture a controlled substance, a second-degree felony punishable by up to 15 years in prison, but reserved the right to challenge the legality of Wheetley’s search.