Escolar Documentos
Profissional Documentos
Cultura Documentos
It is emphatically the province and duty of the Judicial Department to say what the
law is declared Chief Justice John Marshall in the landmark case of Marbury v. Madison. For centuries this
statement has stood as one of the most famous in American jurisprudence. It was a declaration of the role and duty of the judicial
branch within our constitutional structure.
branches of government, each having a check on the other, thus allowing, as James Madison wrote, for ambition to
counteract ambition. As our government has grown and the issues we face have become
more complex, the lines separating the branches have blurred. While it used to be
that Americans were subject to federal laws passed by Congress, today the majority
of rules that govern their daily lives have been promulgated, interpreted, and
administered by federal agencies in the executive branch. So much for all legislative
power shall reside in Congress. The regulatory burden on everyday Americans is astounding.
Last year, according to the Competitive Enterprise Institute, federal agencies issued
nearly 16 regulations for every law passed by Congress, costing businesses an estimated
$1.88 trillion in lost economic activity. Federal courts are tasked with upholding constitutional principles when the political branches
fail to do so. When the law is ambiguous or silent on an issue, it is the responsibility of Congress to clear up or add to its language,
not the courts or an agency. The courts should adhere to the natural reading of the law and require government agencies to do the
same. In 2013, in City of Arlington v. FCC, the Supreme Court cautioned that judges ought to refrain from substituting their own
interstitial lawmaking for that of an agency. Yet this is exactly what was done by the Court in the recent King v. Burwell case
regarding Obamacare. In Burwell, the chief justice wrote that the principle of Chevron deference (which holds that courts should
defer to agencies interpretation of statutes when the language is ambiguous, provided the interpretation is reasonable) did not
apply. Had Congress wished to assign that question [of whether Obamacare tax credits were available on federal exchanges] to an
agency, Chief Justice Roberts wrote for the majority, it surely would have done so expressly. Unfortunately, in this instance the
understandable position for a court to take. Agencies, after all, are experts in a particular field and have technical expertise that
states a second opportunity to create their own plan despite a completely new regulatory requirement, nor was the EPA required to
assign a burden in proportion to each states pollutant levels.
of the law, and the courts allowed it to. Sadly, this is just one of many examples of
agencies overreaching under the assumption that judicial deference will uphold
their regulations, leading to costly and time-consuming litigation. When agencies choose to expand laws written by
Congress to pursue their own agenda, knowing that the courts will likely not check their power, judicial deference
becomes little more than a blank check for agencies to exercise legislative and
judicial authority. Such deference diminishes We the People to They the Regulators. It also makes the
Constitution irrelevant and the voice of the people affected by the regulations
ignored. Relieving the extraordinary regulatory burden on the American people begins by fixing this constitutional imbalance by
reconsidering the proper degree of deference that courts should afford agency decisions. It also requires Congress to clearly state in
each statute that it is their intent that agencies and the courts not expand the text beyond its natural reading. Finally, the courts
have an obligation to restrain in a manner prescribed by Congress the agencies from writing new law from their desk.
Lawmaking may be slow, but we have checks and balances for a reason. While what the Court did in Burwell is a step away from
Chevron, its a step in the wrong direction. The courts should not grant blanket deference to agencies, but neither should courts
substitute their own opinion for that of Congress. When the law is ambiguous or silent on an issue, it is the responsibility of Congress
and Congress alone to write a clearer and more complete statute.
High false alert rates mean drug dogs authorize searches that
violate the Fourth Amendment. This is de facto overreach of
the executive branch into the judicial domain.
Sullum, 13. (Jacob Sullum. Sullum is the author of books acclaimed by the Wall
Street Journal, The New York Times, and the Washington Post. Sullum is the author
of two critically acclaimed books: Saying Yes: In Defense of Drug
Use (Tarcher/Penguin, 2004) and For Your Own Good: The Anti-Smoking Crusade and
the Tyranny of Public Health (Free Press, 1998). Saying Yes has been praised by both
sides of the political spectrum. National Review called it "a highly effective
debunking," and Mother Jones described it as "a healthy dose of sober talk in a
debate dominated by yelping dopes."For Your Own Good also was widely praised by
reviewers, who called it "compelling" (The Wall Street Journal), "meticulously logical"
(The New York Times), and a "cogent and thorough...must-read" (The Washington
Post). "This Dog Can Send You to Jail." Reason. 1/31/13. Web. Accessed: 8-8-2015.
http://reason.com/archives/2013/01/31/this-dog-can-send-you-to-jail)
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 sheriffs deputy who stopped him thought he might be drunk. He asked me to step out and come back
to his car, Burns says, and thats when I noticed the dog in the back seat, a yellowish Lab. I explained that I hadnt 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, thats fine. He asked me if I had any drugs in the car. I said, No, sir, I dont do drugs, and I dont 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 dogduring 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
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 odors source or scratching at it. Yet the dog never sat down, the dog never scratched, the dog
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. Im not a lawyer, and Im 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 didnt find anything. Thats one way of looking at it. But
after Bob Burns was pulled over. Florida v. Harris raises the question of how a judge knows that a dogs 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 [in] 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 OConnor, 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
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
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
More-recent
data from New South Wales indicate a n even higher error rate: 80 percent in 2011.
10,000 searches of people triggered by dog alerts and discovered that 74 percent of them found no illegal drugs.
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
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. Its a convenient excuse, says
Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is
other words, even when two dogs both signaled the presence of drugs, they were wrong 96 percent of the time.
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 cars 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 departments
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
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 dogs 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
successful searches) or been around pot smokers, which is why they smelled suspicious to the police dogs.
is central to Florida v. Harris. The defendant, Clayton Harris, was pulled over twice in 2006 by Officer William Wheetley of the Liberty
County Sheriffs 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 drivers 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 Wheetleys search.
Since Wheetley did not find any illegal drugs in the truck and Aldo is not trained to detect pseudoephedrine, what are we to make of
the alert Wheetley reported? He speculated that Aldo reacted to traces of meth left by Harris hand, which might be true. Then
again, Aldo might have smelled drug residue left by someone elseperhaps, as Harris lawyer suggested, an addict looking for
unlocked vehicles with stuff to steal. The dogs alert does not tell us who left the odor, or even which drug it was. Police dogs
generally are trained to detect several substances, and they alert the same way to all of them. Russ Jones, who worked as a K-9
officer and narcotics detective in San Jose, California, for 10 years and is now a member of Law Enforcement Against Prohibition,
amphetamine or cocaine, and he drops off a book that I ordered from Amazon.com. If a dog smells it, that gives you the right to
Traces of drugs on the outside of Harris truck are not the only possible explanation
for the alert Wheetley reported. Perhaps Wheetley, who said Harris seemed nervous and restless, was so sure the guy was up to
no good that he misinterpreted Aldos behavior. If a dog handler wants to see the alert, says Jones, he
sees it. Alternatively, Jones says, because [the handler] feels the guy is guilty, he just says
the dog alerted and uses that as a pretext to search. Myers recalls a case on which he worked as a
search my home?
defense consultant where an officer claimed a dog alerted as he walked it around a suspects car. In the dash-cam video of the stop,
the dog was not visible, but the officer was. When I had him questioned about how long it took the dog to alert, he said a few
seconds, Myers says. So there should have been at least a two-second pause in front of the car. Nope. There was no pause. Jeff
Weiner, a prominent Florida defense attorney who frequently deals with drug-sniffing dogs, says he
commonly sees videos in which someone will stand in front so you cant see the
dog, and then youll hear them say, Oh, the dog just alerted. And then theyll step away.
Weiner adds that many police departments have stopped recording K-9 teams at work
because they realized that the dogs dont alert when the cops say they alert.
Without video, he says, they can say whatever they want to say, and theres no
way to challenge it. Assuming Aldo really did alert to Harris truck, he might have been reacting to Wheetleys
suspicions. If someone is acting quite twitchy and nervous, says Myers, that evokes suspicion on
the part of the handler, which evokes certain behaviors that may cause the dog to
alert.Ive done frame-by-frame analysis of video tapes, and its interesting when the handler stops
before the dog does. You think it might have been a cue not necessarily
intentional. A 2011 study led by the University of California at Davis neurologist Lisa Lit, reported in the journal
Animal Cognition, shows how powerful a handlers cuing of his dog can be. Lit and her colleagues
18 handlers walk their police dogs through four rooms where they were told drug
or explosive scents might be hidden but where in fact there were no target
substances to be found. Each team went through each room twice, for a total of 144 sweeps, and
generated 225 false alerts. The alerts occurred most frequently near markers that
the handlers were told indicated the presence of scents ; they were even more likely at those spots
than at unmarked locations where the researchers had hidden Slim Jims and new tennis balls as distractions. Human more
than dog influences affected alert locations, Lit and her colleagues concluded.
This confirms that handler beliefs affect outcomes of scent detection dog
deployments. Searching for Ham Sandwiches A few of the handlers in the Lit study admitted they had intentionally
had
pointed their dogs to the marked locations. But for the most part they seem to have communicated their expectations
subconsciously, as observers did with Clever Hans, the famous German horse who supposedly could answer arithmetic questions by
tapping his hoof. Although it has been more than a century since the psychologist Oskar Pfungst demonstrated that Clever Hans was
reacting to the body language of his trainer and audience, the lessons of that episode do not seem to have penetrated most police
Illinois, police officer Michael Reichert walked his German shepherd, Macho, around a car and claimed he alerted in the front. Neither
Reichert nor the dog can be seen on the dash-cam video at that point, but Reichert can be heard repeatedly urging Macho on and
praising him lavishly. Dogs that are rewarded for unconfirmed alerts may begin responding to the wrong stimuli. A dog might just
be interested in something, which could be seen as a kind of alert by the handler, says Myers, so he rewards him for it. And pretty
soon hes going to be searching for ham sandwiches. As that example suggests, distracting smells, such as the tennis balls and
Slim Jims in the Lit study, also contribute to false alerts. A 13-year-old girl who was strip-searched as a result of a mistaken dog alert
during a 1979 inspection of her junior high school in Highland, Indiana, apparently attracted the animals attention because she had
been playing earlier that day with her own dog, which was in heat. The Sydney Morning Herald interviewed a college student who
was searched at a train station after a police dog sat down next to him; the cops found a package of dog treats in his pocket. Bob
Burns remembers an incident from his years as an Air Force M.P. when a dog alerted to a locker that contained not drugs but a
wastebasket with a tuna can at the bottom that an officer had hidden to avoid having to clean it for a room inspection. The dog was
just hungry, Burns says. There was a lot of embarrassment all around. Sometimes the right smell comes from the wrong thing.
Many dogs trained to detect cocaine actually react to methyl benzoate, a volatile byproduct of black-market cocaine that is also an
ingredient in perfume, solvents, and insecticide. A girl whose purse was searched due to a dog alert during a 1978 sweep of her high
school in Goose Creek, South Carolina, turned out to be carrying a small bottle of perfume. Similarly, acetic acid, which is what dogs
smell when they smell heroin, is found in vinegar, various food products, and some kinds of glue; the same odor can be emitted by
prescription drugs when they are exposed to air. Piperonal, a smell that dogs associate with MDMA, is used in artificial flavors,
perfume, and mosquito repellant. Dogs also may have trouble distinguishing the smell of marijuana from the odors of fir and juniper
Given all these potential sources of error, how does a judge know when
a dogs alert is reliable enough to justify a search? In Harris case, the Florida Supreme Court
trees.
concluded that the search of his truck was illegal because the evidence presented to demonstrate Aldos reliability was inadequate.
most
states, has no uniform standards for drug-detecting dogs. The court also wanted more
The court wanted more information about Aldos training and certificationan important issue because Florida, like
details about Aldos performance on tests (really good, according to Wheetley). And it wanted to know his record in the field, a
question Wheetley could not answer because he does not keep track of erroneous alerts. After all, who would be interested in such
information? A Search Warrant on a Leash Challenging the reversal of Harris conviction before the U.S. Supreme Court, the state of
Florida (joined by the Obama administration) argued, in effect, that judges should automatically accept a police dog as reliable. The
handlers themselves are going to be in the best position to know the dogs and evaluate their reliability, Gregory Garre, the lawyer
representing Florida, told the Court in October, and they have a strong incentive to ensure the dogs are reliable. So according to
Garre, if a cop trying to justify a search vouches for the reliability of a dog whose alert supposedly justifies that search, there is no
reason to question him. Garre argued that the most important thing in judging a dogs 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 when there are no uniform standards? We would ask whether or not the dog successfully completed training by a bona
fide organization, Garre said. We dont think its an appropriate role for the court to delve into the contours of the training.You
would have to accept iton its face. And why wouldnt you? After all, Justice Antonin 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 departments 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. Furthermore, 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 dogs reliability. Why would a police department want to use an incompetent dog? he asked Glen Gifford, the
assistant public defender representing Harris. What incentive is there for a police department? Gifford patiently explained that
a police
officer might value a dog that alerts promiscuously, giving him license to search
anyone he deems suspicious. Its a search warrant on a leash, Myers says. Its such
the incentive is to acquire probable cause to search when it wouldnt otherwise be available. It should be obvious why
an enormous back-door entry into search and seizure without a warrant. A brief filed by the Institute for Justice in Harris highlights
et few of the justices seemed inclined to elaborate on the distinction between a well-trained narcotics detection dog, entrusted with the power to authorize searches and seizures, and any old dog
grabbed from the pound by a police department and presented as such. Jeff Weiner, the Florida defense attorney, says, I only hope the Court will realize how incredibly nave they have been and how they have given law
enforcement a green light to do away with the Fourth Amendment merely by uttering the magic words, My dog alerted. Judges around the country commonly accept a dogs alert, by itself, as sufficient basis for a search, but the
Supreme Court has never explicitly said it is, although passing comments in a couple of decisions can be read that way. Furthermore, the Court has always resisted precisely defining probable cause, the standard for issuing a warrant
(or for upholding a car search, which can be conducted without a warrant but is supposed to meet the same test). Probable cause, the Court has said, means there is a fair probability that evidence of a crime will be discovered. It is
not clear how reliable a dog must be to satisfy that standard. A 4 percent chance of finding contraband based on a dogs alert, as in the Florida roadblock operation, presumably would be too low. What about a 20 percent chance, as
in the latest data from New South Wales, or a 44 percent chance, as in the Chicago Tribune study? Who determines when a dogs reliability in alerting has reached a critical failure number? Justice Sonia Sotomayor asked during the
oral arguments in Harris. Im deeply troubled by a dog that [accurately] alerts only 12 percent of the time.That seems like less than probability. Gifford observed that in the lower courts, once you get below 50 percent, probable
cause is much less likely to be found. The 2006 Australian study found that the accuracy of 17 police dogs used to sniff out drugs on people ranged from 7 percent to 56 percent. This wide variation underlines the importance of
assessing the ability of each dog-and-handler team on an individual basis, rather than accepting blanket assurances that all dogs and handlers have been properly trained. Frankys Nose Is Not Technology While the Supreme Court
seemed reluctant to require greater skepticism of such claims, the justices were more receptive to concerns about using dogs to identify homes containing drugs. In fact, Scalia, the justice who was most clearly hostile to questions
about police dogs professional credentials in Florida v. Harris, was the one who was most indignant about bringing them to peoples doorsteps without a warrant in Florida v. Jardines. On the morning of December 6, 2006, based on
an unverified Crime Stoppers tip received a month earlier, Miami-Dade Police Detectives William Pedraja and Douglas Bartlet approached the Princeton, Florida, home of Joelis Jardines, where the tipster had said marijuana was
growing. They were accompanied by several DEA agents and Franky, a chocolate Labrador retriever. Bartlet brought Franky up to the entrance of the house, where he sniffed around for a minute or two before sitting down at the front
door. After Bartlet announced that Franky had alerted to the house, Pedraja approached the front door and claimed he could smell marijuana, although Bartlet said he did not. Based on Frankys alert, Pedraja obtained a search
warrant that police executed later that day, finding 179 marijuana plants, growing equipment, and Jardines escaping out the back door. Charged with trafficking in more than 25 pounds of cannabis, a first-degree felony punishable by
up to 30 years in prison, Jardines successfully argued that the evidence against him should be suppressed. The Florida Supreme Court concluded that the search of Jardines home was illegal because Frankys inspection of the area
near the front door was itself an illegal search. Since the U.S. Supreme Court has said that using a dog to check luggage at the airport or a car during a traffic stop does not count as a search, you might think that Frankys sniffing at
Jardines doorstep would not qualify as a search either. But during oral arguments the justices seemed inclined to agree that homes are different. Jardines lawyer, Howard Blumberg, argued that when a police officer goes up to the
front door with a narcotics detection dog he has physically trespassed, because there is no consent to do that, onto a constitutionally protected area, the curtilage of the homethat is, the area immediately surrounding it. That
argument appeared to be crafted with Scalia in mind. In U.S. v. Jones, the 2012 decision in which the Court ruled that tracking a vehicle by attaching a GPS device to it requires a warrant, Scalias majority opinion emphasized the
physical trespass required to install the device. If youfollow the test set forth in Jones and apply it to what happened here, Blumberg said, it is a trespass. Scalia signaled that he was receptive to this approach even before
Blumberg got up to speak. Police are entitled to use binoculars to look into [a] house if the residents leave the blinds open, he told Gregory Garre, who represented Florida in this case as well as Harris, but theyre not entitled to go
onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point.Why isnt it the same thing with the dog?It seems to me crucial that this officer went onto the portion of the houseas to which
there is privacy and used a means of discerning what was in the house that should not have been available in that space.Police officers can come there to knock on the door[but] when the purpose of the officers going there is to
conduct a search, its not permittedHes going there to search, and he shouldnt be on the curtilage to search. Scalia also wrote the majority opinion in Kyllo v. U.S., the 2001 case in which the Court held that using a thermal
imager to measure the heat radiating from a home (as evidence of grow lamps) requires a warrant. Justice Ruth Bader Ginsburg read Garre a passage from that decision, which she suggested applies to drug-sniffing dogs as well: We
think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a
search, at least where, as here, the technology in question is not in general public use. Garre responded by arguing that Frankys nose is not technology, since he is merely availing himself of God-given senses. But in its natural
state, Frankys nose does not tell police when molecules of certain chemical compounds are floating through the air; that requires human intervention, based on technical knowledge, aimed at turning a descendant of wolves into a
law enforcement tool. The dog per se is not a technology, says Myers, but the dog is part of a technology that has been applied to a particular use. The main point, when it comes to expectations of privacy, is that Franky, like a
thermal imager, enables police to find evidence they could not detect with their own unaided senses. They can thereby obtain information about what is happening inside a home that they otherwise could get only by entering it.
Dogs Are Not Magic But dogs do not perform this function inerrantly. The notion that a dog sniff is not a search and the notion that a dog sniff justifies a search are both based on overblown notions of canine capabilities, a fact that
A cop already has the authority to stop cars for minor (and
possibly imagined or invented) traffic violations that people routinely commit. If you give him a
dog he can deploy during any stop to justify a search, a dog whose alerts may be
imagined, invented, or triggered by deliberate or subconscious cues, he now has
the ability to search cars at will. In Caballes, the decision that gave police this ability, Justice Souter
warned that an uncritical adherence to Place [which held that a sniff is not a
search] would render the Fourth Amendment indifferent to suspicionless and
indiscriminate sweeps of cars in parking garages and pedestrians on
sidewalks. During the oral arguments in Harris and Jardines, Justices Sotomayor and Ginsburg
likewise worried aloud about police taking dogs from door to door in an apartment
building or from house to house on a street. Garre, Floridas lawyer, argued that
limited resources and community hostility would discourage such operations. But
they are already happening. In 2011, for instance, The Roanoke Times reported that
police in Pulaski, Virginia, had been using dogs to randomly search for drugs in
apartment complexes for a couple of years. Last spring the Fargo Housing Authority in North Dakota announced plans
for similar sweeps. Students as young as 6 have been randomly subjected to dog sniffs at
public schools throughout the country for decades. Such olfactory dragnets would be
disturbing enough with dogs that are 100 percent accurate. But with actual dogs, which could be wrong
most of the time or even nine times out of 10, they are little more than pretexts for police to
makes the implications of those ideas all the more troubling.
Dogs can be a very good and useful tool, Myers says. But
people have gotten both lazy and superstitious about that use. Dogs are not magic.
attacked the United States violated an absolute international ban on terrorism, American authorities may have been
tempted to avenge the injury - an eye for an eye - by violating an equally absolute international ban on torture.
After suffering a severe blow inflicted by an avowed enemy, the surviving victims of an attack are often obsessed
with reestablishing an image of themselves as active rather than passive. They have to "do something" without
giving too much thought to the specific consequences of the actions they undertake. This suggests, once again,
that cruelly coercive interrogation may have been embraced less for the tactical information it promised to disgorge
than for its independent psychological appeal. All of its practical consequences were not necessarily coolly
considered. Such speculations are admittedly impossible to prove or disprove. But they are plausible enough to
justify skepticism about the claim that harsh interrogation was embraced solely for the pragmatic reason alleged,
namely to extract intelligence to prevent a follow-up nuclear sneak attack against the United States. Electoral, as
opposed to national-security, considerations may also have contributed to the embrace of interrogation techniques
are eliminating more terrorists than they are producing. But the Bush administration and its supporters could
always point out that Amnesty International, Human Rights First, the ACLU, and other liberal-humanitarian
organizations were screaming about torture. These organizations' vehement expressions of outrage strongly [*347]
suggested that the Bush administration was going to extreme lengths - pulling out all the stops - to protect the
country. The pernicious idea of a liberty-security tradeoff, once again, lent a spurious plausibility to the mind-game
being played.
any society aiming to maximize spiritual and material welfare, then every invasion
of freedom must be emphatically identified and resisted with undying spirit
than half were conducted in the middle of the night, while 14 were granted judicial authorization for no knock entrymeaning
SWAT agents were allowed to break the door open to enter. These methods are exceptionally controversial and have resulted in
other
uses of SWAT teams are unwise at best and dangerous at worst. Associate Professor
of Criminology at Merrimack College, Tom Nolan, said, Its certainly counter-productive to have
a fully-armed militarized SWAT team respond to potentially suicidal suspects who are
countless cases of needless violence, injury, and deathfor both subjects of raids and the officers themselves. Further,
looking for ways out like suicide-by-cop situationsI dont know why you couldnt just have someone respond who knows
over a parking space dispute. A 28-person SWAT team was called to his home, bringing along with it a Bearcat (armored vehicle) as
well as tasers, long arms, a shotgun, 40mm less-lethal rounds, shields and battering rams. When they were let into the mans
home by someone he knew, they found him struggling to get out of bed and gave him the opportunity to get dressed and remove
spending identified by The Post suggests police are using Equitable Sharing as a free floating slush fund. Cates, who oversaw the program while at
All of this is at odds with the rights that Americans have. Of the nearly $2.5 billion in spending reported in the forms, 81 percent came from cash and
property seizures in which no indictment was filed, according to an analysis by The Post. Owners must prove that their money or property was acquired
The police purchases comprise a rich mix of the practical and the high-tech, including an array
of gear that has helped some departments militarize their operations: Humvees,
automatic weapons, gas grenades, night-vision scopes and sniper gear. Many
departments acquired electronic surveillance equipment , including automated license-plate readers and
systems that track cellphones. The spending also included a $5 million helicopter for Los Angeles police; a
mobile command bus worth more than $1 million in Prince Georges County; an armored personnel carrier
legally in order to get it back.
costing $227,000 in Douglasville, Ga., population 32,000; $5,300 worth of challenge coin medallions in Brunswick County, N.C.; $4,600 for a Sheriffs
Award Banquet by the Doa Ana County (N.M.) Sheriffs Department; and a $637 coffee maker for the Randall County Sheriffs Department in Amarillo,
Tex. Sparkles the Clown was hired for $225 by Chief Jeff Buck in Reminderville, Ohio, to improve community relations. But Buck said the seizure money has
been crucial to sustaining long-term investigations that have put thousands of drug traffickers in prison. The money I spent on Sparkles the Clown is a
very, very minute portion of the forfeited money that I spend in fighting the war on drugs, he told The Post. About 5,400 departments and drug task
forces have participated in the Equitable Sharing Program since 2008. Justice spokesman Peter Carr said the program is an effective weapon to fight crime
but should not be considered an alternative funding source for state and local law enforcement. It removes the tools of crime from criminal
organizations, deprives wrongdoers of the proceeds of their crimes, recovers property that may be used to compensate victims, and deters crime, he said
in a statement. Any funds received through the equitable sharing program are meant to enhance and supplement, not supplant or replace an agencys
appropriated budget and resources. Money for gear, training A local or state police agency can seize cash or property under federal law through the
Equitable Sharing Program when a federal agency such as the Drug Enforcement Administration or Immigration and Customs Enforcement agrees to adopt
the seizure under federal law. Federal agencies generally are allowed to keep 20 percent or more of the seizure after an adoption. Your
property
is guilty until you prove it innocent In the wake of Sept. 11, 2001, an aggressive brand of policing called highway
interdiction, which involves authorities seizing money and property during traffic stops, has grown in popularity. Thousands of people not charged with
interdiction to help in the fight against drugs and terror. There have been 61,998 cash seizures on highways and elsewhere since 9/11 without search
warrants or indictments and processed through the Equitable Sharing Program, according to an analysis of Justice data obtained by The Post.
Equitable Sharing participants must follow rules contained in a 50-page Equitable Sharing guide that
require the proceeds of seizures to be used by law enforcement agencies for law enforcement
purposes only. Permissible uses include overtime pay, training, building construction and improvements and
equipment everything from file cabinets and fitness gear to automatic
weapons, surveillance systems and cars. They also can use proceeds to buy food and drinks at conferences or
during disaster operations. Police generally may not pay ongoing salaries or otherwise support annual budgets. One exception allows for departments to
pay salaries of newly hired officers for one year or officers assigned to a drug task force as a replacement so long as the replacement officer does not
engage in the seizure of assets or narcotics law enforcement as a principal duty. The Justice Department has about 15 employees assigned to overseeing
compliance. Five employees review thousands of annual reports for discrepancies. Justice employees also use analytical tools to search for spending
annual
reports from local and state police are required to help promote public confidence in
the program and to protect against waste, fraud and abuse, the guidelines say. But the
forms provide few details about what is actually purchased , according to documents and interviews. That
is in part because the department leaves it up to local officials to decide how to
categorize their spending. There is little room to provide line-item detail. Justices inspector generals office has conducted 25 audits
patterns. Several attorneys review all sharing requests for $1 million or more, Carr said, adding that the locals also do their own audits. The
on spending since 2008, an average of four a year, examining more than $18 million in Equitable Sharing spending, roughly three-quarters of 1 percent of
the money spent during that time. Justice has challenged millions of dollars in spending as unsupported or unallowable. One audit examined about $3.4
million in Equitable Sharing funds that the Oklahoma Highway Patrol spent from July 2009 to June 2012. The audit found $1.9 million in unallowable and
unsupported expenditures relating to salaries, overtime pay, construction, fees paid to contractors and the use of two Ford F-150 pickup trucks by non-law
enforcement personnel. Oklahoma authorities did not return calls seeking comment. Auditors found the Mesa County, Colo., Sheriffs Office paid thousands
for projectors, scanner equipment and other items that were not intended for law enforcement. They also paid for 20 lawyers in the Mesa County
prosecutors office to attend a conference at the Keystone ski resort. Auditors questioned more than $78,000 in spending. The Mesa Sheriffs Office also
did not respond to calls from The Post. Trading cards and BMWs One task force used the money for a subscription to High Times, a magazine for marijuana
enthusiasts, at $29.99 for a year. Several departments bought custom-made trading cards, complete with photos and data about their officers. Some,
including police in Chelsea, Mass., share them with children in their communities. We have found that this is a great way to build trust and foster longlasting relationships with the youth in our community who get to know officers on a first-name basis, said Chelsea Police Chief Brian Kyes. Ten
agencies have used the asset forfeiture funds to pay their fees for the Defense
Departments excess property initiative, better known as the 1033 program, which enables local and
state police to buy surplus military-grade equipment at cut rates. The equipment includes automatic weapons,
night-vision gear and clothing. Police in Sahuarita, Ariz., paid $4,300 to outfit a Humvee obtained through the 1033 program. The New
Bedford, Mass., Police Department in 2012 paid $2,119 for shipping costs for M-16s from the
military. Dozens of sheriff and police offices paid a total of more than $100,000 for keepsakes known as challenge coins and lapel pins that they
could share with one another and with local residents. Scores of departments spent money on vehicles. Many of them were typical police
cruisers, but dozens were new and used sports and luxury cars, including at least 15 Mercedes, a dozen Mustangs, a handful of BMWs and two Corvettes.
Others
Among them was the police department in Douglasville, Ga., and the sheriffs
office in Douglas County, Ga., which teamed up several years ago to buy an eight-ton, $227,000 BearCat (Ballistic Engineered Armored Response Counter
Attack Truck). Douglasville Deputy Chief Gary E. Sparks said they have used the vehicle a few times in barricade situations. But mostly it has been
Police in
Ferguson, Mo., also participate in Equitable Sharing . Since 2008, the department reported
using seizure proceeds to buy $18,000 in weapons and protective gear, $71,000 in computers and
communications gear, and about $43,000 in electronic surveillance equipment.
deployed for officer down and SWAT team exercises. Its better to have it and not need it than need it and not have it, he said.
agencies, the annual reports show. Jurisdictions in the Washington region have used the federal asset forfeiture program as well. Virginia State Police spent $33 million on buildings and improvements and $11 million on computers
and communications gear. A state police spokeswoman said the funds came from money forfeited by Purdue Frederick Company, the maker of OxyContin, to settle allegations that the company played down the drugs addictive
properties. The D.C. Metropolitan Police Department was a leader in spending on informants and undercover drug purchases, reporting about $3.3 million under that category. The department declined a request to provide details.
Prince Georges police spent $382,000 on license-plate readers, $56,000 to paint two aging helicopters and an undisclosed amount on a cell site simulator that can surreptitiously track cellphones. Parker, the Prince Georges police
spokeswoman, said the cellphone-tracking system is only used under court order and that the department follows best practice policies when spending forfeiture funds. Fairfax County police have spent $1.3 million on weapons and
protective gear, $561,000 on buildings and improvements and $208,000 on electronic surveillance gear. The department declined to share details about the spending. The Justice Department audited Fairfaxs spending in 2009 and
2010 and found the department had complied with the guidelines at that time. Our financial stewardship of our Seized Account Funds is in compliance with all Federal rules and laws, State rules and laws, County rules and laws, and
we undergo audits of these accounts by local and federal agencies, Col. Edwin C. Roessler Jr., the Fairfax police chief, said in a statement. Additionally, we are subjected to internal audit processes to review all requests for
expenditures to ensure purchases are pre-approved for compliance. Steady money for Ga. town The Post analysis found that since 2008, more than 500 departments and drug task forces have reported receiving the equivalent of 20
percent of their annual spending plans at least once. Nearly 100 have done so in at least three of the past six years. The local department that makes the most consistent use of Equitable Sharing funds per capita is in Braselton, Ga.,
a town of about 8,000 people along Interstate 85 northeast of Atlanta. It has reported receiving the equivalent of 20 percent or more of its budget from the Justice program in five of the past six years, documents show. The Braselton
Police Departments approach to Equitable Sharing offers insights about the latitude the Justice Department gives local and state departments to spend seized proceeds. It also underscores how little Equitable Sharing participants
are required to disclose to Justice each year. According to the towns annual reports, police in Braselton have spent $79,000 on weapons and protective gear since 2008, $139,000 on travel and training, $134,000 on salaries,
$224,000 on computers and communications gear, $875,000 on a category characterized on the Justice form as other, and $905,000 on buildings and improvements. Their spending included $806,000 for the purchase and
modification of vehicles. In interviews, Assistant Chief Lou Solis said that not all the reported spending went to items for the town police. He said that Braselton uses its membership in the Equitable Sharing Program to buy things for
law enforcement partners, such as the Georgia State Patrol. The federal guidelines allow the formation of task forces and the participants to decide how to split the seizures among themselves, with Justices approval. Most of
Braseltons seizure proceeds came as a result of its participation in an Atlanta-based DEA drug task force that relies heavily on local police. Braselton has one officer assigned to the task force, Solis said. Braselton police recently paid
$6,000 for copiers for a nearby DEA office. The DEA says, Hey man, we need a copier, Solis said. In some instances, town police help out on whisper stops after receiving informal tips about smugglers from the DEA, he said.
Some of the seizures are made by the state patrol on nearby I-85, with help from Braselton officers, he said. State police have sometimes partnered with Braselton on seizures in exchange for pledges from town police to provide cars
and equipment for the state police. For example, Solis said, Braselton police recently bought 27 M-4 assault rifles, at about $2,000 each, for state police with proceeds from Equitable Sharing. Braselton also paid almost $8,000 in
program funds for radar, lights and a tag reader for the state police. The deals with Braselton enabled state police offices to receive the direct benefit of seizure proceeds rather than have the money go through the state patrols
general fund, according to Solis and Capt. Kermit Stokes, a state patrol official. Braselton police also used seizure proceeds to build an enclosed shooting range used by local, state and federal authorities, including the Department of
Homeland Security, which also contributed funding, Solis said. Its legit. Were not buying stuff just to buy stuff, he said, adding, We spend the money if we have it. ... Its pretty cool. Were not only able to help us, were able to
help others. In every instance, planned purchases are submitted to town authorities before being approved by Braseltons police chief, he said. Every request from Georgias state patrol is accompanied by a formal letter, as required
by the Justice program, he said. Its checked and its double-checked, Solis said about the spending. Its audited. When town police help out, other agencies sometimes promised to include them in a DAG-71, the federal form
that specifies how sharing should occur. So many seizures have occurred in recent years, leading to so much sharing among local, state and federal authorities, that it has become common for one officer to tell another, Were going
to DAG you in, Solis said. After The Post brought the transactions to Justices attention, a department official told Braselton to stop using Equitable Sharing funds to buy items for other departments, said Carr, the Justice spokesman.
Such transactions were not explicitly prohibited previously, but a new interim guidance for the program was issued this summer, Carr said. Braselton Police Department is now aware that this is not permitted and has assured the
department it will comply with the new guidance, Carr said. He added that other departments had made similar transactions in recent years. Braselton Police Chief Terry Esco said he was not aware of the interim guidance but is
happy to comply. We just never received the e-mail, he said.
Drug dogs are the primary method of obtaining probable cause for civil
asset forfeiture.
Wilson, 13. (Don Wilson. "The Institute for Justice." Institute for Justice.
10/20/2013. Web. Accessed: 8-9-2015. https://www.ij.org/texas-civil-forfeiturebackground)
A March 2010 report from the Institute for Justice , Policing for Profit: The Abuse of Civil Asset Forfeiture,
[22] shows just how widespread police profit from civil forfeiture has become . The report,
which grades all 50 states and the federal government based on how well their asset forfeiture laws protect private property rights,
gives Texas a D- because the Texas statute does almost nothing to protect innocent owners. The report demonstrates that
Over the
seven-year period studied by the report, Texas law enforcement agencies seized
$225,592,873nearly a quarter billion dollars in currency and property under civil
forfeiture.[23] The report contains many findings about the breadth and depth of the
forfeiture abuse problem. Among them: Data show that Texas law enforcement agencies
rely heavily on forfeiture funds. In a random sample of 52 Texas law enforcement agencies, plus the top 10
forfeiture-earning agencies, forfeiture revenue amounts, on average, to 14 percent of agency
budgets. For just the top 10 forfeiture money-makers, forfeiture dollars equal about 37 percent of agency budgets. Even
though drug use in America has remained relatively stable since the early 1980s, drug
arrests and the use of asset forfeiture have increased considerably. Contrary to the claims of
forfeiture advocates, data suggest that forfeiture is not typically used to pursue high-level targets
and major criminal organizations. For instance, in Virginia, one-half of all currency forfeitures between 2001 and
forfeiture in Texas has skyrocketed from $18,983,274 in total assets seized in 2001 to $49,179,252 in 2008.
2006 involved amounts less than $1,288. When state laws make forfeiture harder and less profitable, law enforcement engages in
more of what is known as equitable sharingthat is, the process by which state and local law enforcement agencies turn over
forfeiture cases to the federal government, which then returns as much as 90 percent of the value of what is forfeited back to state
and local law enforcement agencies. Equitable sharing is an easy way for law enforcement agencies to circumvent state-imposed
safeguards against the abuse of forfeiture. Moreover, the researchers found that the profit motive and the innocent owner burden
two large problems with Texas laware significant factors in determining how much equitable sharing an agency receives. An
average-sized agency in a state with a 100-percent profit motive will take in $30,000 more in equitable sharing than an agency in a
state with no profit motive. The difference for agencies in states where owners are presumed innocent versus those where owners
are presumed guilty is $27,600.
cash. Famously, in 1985, the Miami Herald asked 11 prominent citizens to supply a $20 bill for drug trace analysis. Ten
A 1987
study by the D E
A found that one-third of all money at the Federal Reserve
Building in Chicago had traces of cocaine and recommended that trace analysis of currency for general
enforcement or seizure be stopped. Despite their unreliability in the currency context, law
enforcement agencies routinely use drug sniffing dogs to prove that
currency was involved in illegal drug activity.
cold hard
of the 11 bills tested positive for drugs, including ones provided by Janet Reno, Jeb Bush and a former Miss America.
rug
nforcement
gency
by a terrorist, estimates a Washingtons Blog report based on official statistical data. Though the U.S. government does
not have a database collecting information about the total number of police involved shootings each year, its estimated
that between 500 and 1,000 Americans are killed by police officers each year. Since
9/11, about 5,000 Americans have been killed by U.S. police officers, which is
almost equivalent to the number of U.S. soldiers who have been killed in the line of duty in Iraq.
As Mint Press News previously reported, each year there are thousands of claims of police misconduct. According to the
CATO Institutes National Police Misconduct Reporting Project, in 2010 there were 4,861 unique
reports of police misconduct involving 6,613 sworn officers and 6,826 alleged victims. A big element in the police
killings, Prysner says, is racism. A big majority of those killed are Latinos and Black people, while the police officers are mostly
White, he said. Its
The Minnesota reform is a good step in the right direction that other states should copy. But it might be even better to simply ban asset forfeiture
completely. Even if a defendant has been convicted of a crime, the appropriate remedy is to punish him for it and if possible force him to pay
compensation to the victims. But there is no reason to allow the state to enrich itself by seizing property that happened to be somehow used in the
commission of the offense, even if it was not illegally obtained and is not needed for victim compensation. If a thief uses his legitimately acquired car to
flee the scene of a crime, we should certainly punish him for the theft and force him to compensate the victim for their loss. But thats no reason to let the
police seize the car and sell it for their own profit. CONFLICT OF INTEREST WATCH: I have done considerable pro bono work for the Institute for Justice, the
the public interest law firm that spearheaded the effort to pass the new Minnesota law, and has litigated numerous asset forfeiture cases elsewhere.
Plan
The United States Federal Government should mandate that
police cannot use a drug dog to search without having
probable cause.
Solvency
Drug dogs are very inaccurate.
Balko, 8/4. (Radley Balko. Radley Balko blogs about criminal justice, the drug war
and civil liberties for The Washington Post. He was previously a senior writer and
investigative reporter at the Huffington Post. He is the author of "Rise of the Warrior
Cop: The Militarization of America's Police Forces," and his work has been cited by
the U.S. Supreme Court and the Mississippi Supreme Court. He also writes about the
music and culture of Nashville, Tennessee, where he lives. A graduate of Indiana
University, Radley has also been a senior editor at Reason magazine, a policy
analyst at the Cato Institute and an opinion columnist for FoxNews.com. "Federal
appeals court: Drug dog thats barely more accurate than a coin flip is good
enough." Washington Post. 8/4/2015. Web. Accessed: 8-7-2015.
https://www.washingtonpost.com/news/the-watch/wp/2015/08/04/federal-appealscourt-drug-dog-thats-barely-more-accurate-than-a-coin-flip-is-good-enough/)
U.S. v. Bentley is
just the latest in a series of rulings in which the federal courts refuse to consider the
possibility that police departments may be manipulating the dogs to authorize
unlawful searches or at the very least that police agencies arent ensuring that
the dogs are being trained to minimize the possibility, even though that would be
easy to do. The problem with drug-sniffing dogs is not that dogs arent capable of
sniffing out drugs; its that weve bred into [them] domestic dogs a trait that trumps that
ability a desire to read us and to please us. If a drug dog isnt specifically trained to
compensate for this, it will merely read its handlers body language and confirm its
handlers suspicions about who is and isnt hiding drugs. This has been confirmed by tests of K9
units that have shown that controlled tests designed to fool handlers are much more
likely to trigger false alerts than controlled tests designed to fool the dogs. The fact that
mine-sniffing dogs tend to be more accurate than their drug-sniffing cousins further
illustrates the point handlers not only have fewer preconceptions about where mines
are located, but they also have an incredibly strong incentive for the dogs to be
accurate about finding them. But even here, the dog-handler bond can become problematic, which is why some detection
experts are turning to rats. The problem here is that invasive searches based on no more than a
government officials hunch is precisely what the Fourth Amendment is
supposed to guard against. Unfortunately, the way the U.S. Supreme Court has ruled on this issue not only
doesnt account for the problem, but also has given police agencies [have] a strong incentive to ensure
that drug dogs arent trained to act independently of their handlers suspicions. A
dog prone to false alerts means more searches, which means more opportunities to
find and seize cash and other lucre under asset forfeiture policies. In fact, a drug dogs
alert in and of itself is often cited as evidence of drug activity, even if no drugs are found ,
thus enabling police to seize cash, cars and other property from motorists. For example, Ive interviewed dog trainers who
have [said] told me that drug dogs can be trained to alert only when there are
measurable quantities of a drug to ignore so-called trace or remnant alerts that arent cause for
arrest. But these trainers say that police agencies dont want dogs trained to ignore remnant
odors, because any alert is an authorization for a more thorough search. In 2013, the
The U.S. Court of Appeals for the Seventh Circuit issued a troubling ruling about drug dogs last week.
Supreme Court made things worse in Florida v. Harris. In that case, the court unanimously
ruled that mere certification of a drug dog was enough to establish a presumption that a
Even a
dog that was well trained initially can be conditioned to pick up bad habits once its in the
field. This is exactly what was happening with Lex. It turns out that Lexs handler gives the
dog a reward every time he alerts, regardless of whether that alert is accurate. Lex isnt
Lex alerted to were subjected to a thorough roadside search that produced nothing illegal. It gets worse.
getting rewarded for filtering innocent motorists from guilty ones. Hes being trained to authorize a search, each
and every time hes called to duty. The Seventh Circuit found all of this troubling, even conceding that the reward
policy was a terrible way to promote accurate detection. And yet according to the three-judge panel that heard
the case, none of this was enough to amount to a violation of the Fourth Amendment. Following the Supreme
Courts prescription in Harris, the opinion notes that that the dog had passed tests in controlled settings and cited
testimony about the dogs reliability. But that testimony came from the dogs handler. And theres no further
explanation of what those tests in controlled settings meant. Were they conducted by the police department? By
the handler? Did they include tests designed to fool the handler as well as tests designed to fool the dog? The head
of the agency that trained the dog also provided testimony about the quality of his groups training, but of course
hed say that. He also expressed concern about Lexs high alert rate and relatively low accuracy rate, and about the
fact that Lex actually had failed two simulated vehicle searches. Yet the opinion points out that in the past, the
Seventh Circuit found no problem with a drug dog whose accuracy rate was 62 percent. Lexs was only slightly
lower. Moreover, the court notes that the U.S. Court of Appeals for the Fourth Circuit gave its okay to a dog with a
less accurate than a coin flip. This even lower number jibes with
a 2011 Chicago Tribune investigation of suburban Chicago police dogs that found a success
rate of just 44 percent. That review also found that with Latino drivers, the accuracy rate
plunged to just 27 percent, more evidence that the dogs are merely reflecting the biases and
presuppositions of their handlers. Other studies have shown false positive rates of up to 80
percent. With success rates that low, its hard not to conclude that drug dogs arent tools to
determine probably cause, but basically a search warrant on a leash. In Bentley, it turns out
success rate of 43 percent, or
that the dog was correct. The suspect was found to be transporting a large supply of cocaine. But guilty people tend
to bring the appeals that set precedents because guilty people have a lot more to lose. A false drug dog alert that
turns up nothing wont result in an arrest. To get a court to rule that search illegal, the victim would need to file a
civil rights lawsuit. Thats a lot of hassle and expense for someone to endure to get compensation for a wrongful 45minute search on the side of the road. And thats assuming they can find an attorney to take the case. Civil rights
suits take a long time to resolve and are very difficult to win. At worst, a false alert may lead to the wrongful seizure
of a motorists cash, car or other property. Here, theres more incentive to go to court the motorist wants his
money back. But here too, other incentives cut against legal action. First, the cost of hiring an attorney and going to
court can often exceed the value of the property that was seized. It can also take months, sometimes years. And
even if a motorist does succeed in getting his property returned, its another huge step and another round of
litigation, expense and risk of failure to get the courts to declare that the stop itself was a constitutional violation.
Most people are just happy to have their property back. The point here is that it might be tempting to shirk at the
injustice of this ruling: Maybe the dog was a ruse to let cops search this guy, but that search led to a huge stash of
and time-consuming experience. The cops will typically go through everything you own, including bags, suitcases,
pockets, purses and so on. Sometimes theyll tear out the upholstery of your vehicle. Theyll scatter your belongings
along the side of the highway. The opinion in Bentley cautions against a race to the bottom when it comes to drug
dog accuracy, but its hard not to think that were already there. Remember, Lex was called out only when the
police suspected someone was in possession of drugs. If we assume that cops are at all skilled at detecting drug
runners, wed already expect a fairly high percentage of stops in which the drug dog is called out to produce illegal
drugs. If the drug dog is still wrongly implicating four of every 10 people, its actually quite a bit worse than a coin
toss. The dog really isnt filtering out innocent people at all (an assertion already backed by Lexs 93 percent overall
consider that Fourth Circuit drug dog that was wrongly implicating nearly six in
10 people, thus subjecting more than half the motorists it sniffs to a wrongful search. First, this means that the
police themselves in that jurisdiction were already pretty bad at identifying potential drug offenders. But we can
at least assume that the police there were good enough that the pool of people who get a
dog sniff will include a significantly higher percentage of drug offenders than the overall pool
of drivers. (Id imagine that even the average citizen could pull this off.) Assuming that
much, its hard to imagine a drug dog doing much worse than a false alert rate of 60
percent. To get to a false alert rate of 70 or more percent, as the Chicago Tribune found with
Latino drivers in the suburbs, youd almost have to intentionally train the dog to
make mistakes. The Supreme Court originally gave its imprimatur to drug dog sniffs
because when used properly, the dogs finely tuned sense of smell can detect drugs and
their absence with incredible precision. But that caveat when used properly is
critical. If a drug dog isnt eliminating any innocent people, if its validating the suspicions of the police nine out of
alert rate). Now
ten times resulting in searches for which up to half or more of the suspects are innocent, then descriptors such as
finely tuned and incredible precision no longer apply. And neither does the Fourth Amendment.
issue has not received the attention it deserves since the enactment of CAFRA in 2000, despite its continuing presence in Title 19
and in 26 cases carved out of the CAFRA reforms.