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 thatâ€™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.