More on Searches

A commenter brought up an interesting point in regards to the search of Cemetery’s vehicle, from a lawyer who says the 4th Amendment is alive and well, and it’s still possible to win 4th Amendment cases:

Your real concern is that all other things being equal, police are going to be believed in court over citizens. Well, yea, and that’s always been true, and likely always will be. The advice to have your own camera rolling is well taken.

I think that is partly my concern. If I think about the issue a bit more, what I really think I have an issue with are the dogs. Don’t get me wrong, I have no issue with the use of dogs in police work, or even the use of dogs for their noses in police work. I do have an issue with dogs amounting to probable cause for a search. Let me explain.

It is conceivable that sometime soon, technology will allow us to replace the dog’s nose. In this instance, police will be able to circle your vehicle with a device that takes in air samples, and looks for signatures of contraband. The interesting thing about this technology is, I think it actually would enhance civil liberties. I can’t cross examine a dog to find out what was going through its mind when it “alerted.” I can demand the logs from the device, demand to see its service records, and examine the science behind its function.

Even if it ends up a matter of judicial notice that the devices are reliable, and a reading can amount to probable cause, the officer at least would have to induce a reading somehow if he wanted to act merely on his suspicion, rather than just read the tea leaves of a dog’s behavior.

What’s interesting about such a sniffing device is how it would be affected under Kyllo v. United States. Unless such a device was generally available, it’s hard for me to see how it would be distinguished from the Kyllo case, except that involved a residence, and this would only presumably involve a vehicle or personal effects such as luggage. Perhaps the court would rule you have a lesser expectation of privacy. But as it is, a dog sniff doesn’t even constitute a search for 4th Amendment purposes, but if I were to use a device the mimics a dog’s nose, it presumably would. This goes to show the court’s logic in this matter is not entirely consistent.

7 thoughts on “More on Searches”

  1. Kyllo involved remote monitoring from a passing automobile. I agree the slope is there, but the equivalent would be using a dog to search your garage interior from the street. Not possible in most cases.

    Likewise, homes are more protected than vehicles. Contorted logic to get to the point that your car is less protected, but that’s what the court says.

    Devices to detect scent exist and in some jurisdictions amount to a probable cause for detention – the alcohol sniffers at the end of flashlights have been used to select people for enhanced DUI stops in some states without legal ramification. I suspect sniffing for drugs would be the same.

    I don’t like the dog game, either. It absolves the LEO when the “bust” turns out to be a bust (nothing found) – they get to blame it on Rover.

    I agree that machines would be nice for one thing: remove some of the more subjective calls out there regarding searches. Either the machine hits or it does not. If the LEO ‘teases’ the result, they have to introduce some illegal act to the mix to get there.

    Which leads us back to some good advice: record the encounter.

  2. Oh my god… I find myself agreeing with Justice Gisnbergs desent, a rare case indeed.

    Illinois v. Caballes

    “Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population…. Today’s decision clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots…. Motorists [would not] have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green.”

  3. I have been through dog searches (the ones at the checkpoints 50 miles N of the Mexican border). In each case, the officer asked me to keep my dog under control. This would suggest to me that there is something that my dog could do to distract the police dog and keep it from focusing on the smell or jam the alert process. So how reliable is the process. Clearly the police dog would be able to smell my dog just sitting there since that is what dogs live for.

  4. Is there any substance that would either impair the dog’s ability to smell whatever substance it’s supposed to alert on, or that would always produce an alert? I would think that if a masking substance were available the drug cartels would have already employed it, so that leaves “generating a lot of false positives” as the only alternative.

    Which would be just as effective; if the credibility of a drug dog (or, a lot of drug dogs) is ruined by alerting on every car, or even a large percentage of cars, resulting in many standard-issue citizens being subjected to intrusive searches, at some point the cops would have to either go to stop using dogs or go to Plan B.

  5. “I can demand the logs from the device, demand to see its service records, and examine the science behind its function.”

    Uh huh. You haven’t tried to get the source code from a breathalyzer machine recently have you? They’ll fight you tooth and nail.

  6. Kyllo’s an interesting case. I just completed a case involving a “search” of a house using infrared cameras, the technology at issue in Kyllo (which I thought then and think now was wrongly decided). And yes, the police had a warrant. My complaint in that case was not the search with a warrant, but what thin evidence it took to get a warrant. That’s not an issue with the police, but with that particular judge. We’ll see how it plays out on appeal.

    A technology instead of a dog would certainly be less subjective(and in the long run, cheaper for police). I’ve seen the dogs work, and for the most part, a well trained dog is a wonder. They’re good, though not foolproof. But foolproof is not the standard. “Probable cause” does not mean certainty. And the dog’s training records and track record of success is absolutely a subject of litigation. I have no doubt that a handler can influence the dog, perhaps without even intending to do so. The dog wants to please his handler, after all. Which is why Jake’s cite interests me.

    The more interesting question to me is when can they bring in the dog in the first place? In my jurisdiction, once stopped for a basic traffic stop, the stop cannot be lengthened to get a dog there unless there is reasonable suspicion to hold the car, and that is additional RS beyond the basic traffic stop. That additional delay is a detention over and above the traffic stop, and it must be supported with RS. If the officer already has a dog, of course, he can walk it around the car while waiting for dispatch to run a driver’s license.

    However: that we are even having this discussion tells us that the 4th is alive and well. We’re not discussing WHETHER an unreasonable search is invalid; we’re discussing WHEN a search is unreasonable. And I can tell you from long experience, on both sides of the table, that judges can and do throw out searches.

    Remember: if you are a suspect, NEVER talk to police. And NEVER, EVER consent to any search.

    Have a good one.

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