Pubdate: Fri, 28 Jan 2005
Source: Reason Online (US Web)
Copyright: 2005 The Reason Foundation
Contact:  http://www.reason.com/
Details: http://www.mapinc.org/media/2688
Author: Jacob Sullum
Note: Jacob Sullum is a senior editor at Reason and the author of Saying 
Yes: In Defense of Drug Use (Tarcher/Putnam).
Bookmark: http://www.mapinc.org/find?237 (Drug Dogs)

WHO LET THE DOGS IN

The Supreme Court Did, By Declaring A Sniff Is Not A Search

Police used to need probable cause to search the trunk of your car. Now all 
they need is a dog.

Here's how it works: An officer pulls you over because you're driving a bit 
too fast or a bit too slow, or because you have a broken tail light, or 
because you're not wearing your seat belt, or because you forgot to put 
your new registration sticker on your license plate. He is soon joined by 
another officer with a drug-sniffing dog, which "alerts" when it gets near 
your trunk. Or so the officers say. You have no idea what this particular 
dog does when it smells contraband, and the dog isn't talking. But now the 
police can look in your trunk. A minor traffic stop is thus transformed 
into an embarrassing, invasive, intimidating, time-consuming search for 
illegal drugs. The Supreme Court recently gave its approval to this sort of 
stop-and-switch in a case involving a man named Roy Caballes, who was 
pulled over on Interstate 80 by an Illinois state trooper for driving six 
miles an hour faster than the speed limit. Caballes happened to have 282 
pounds of marijuana in his trunk, but even those of us who are not pot 
smugglers should worry that the Court saw nothing wrong with the 
circumstances that led to his arrest. Trooper Daniel Gillette testified 
that he became suspicious because Caballes was well-dressed and seemed 
nervous, the car smelled of air freshener, and the only visible belongings 
were two sport coats, even though Caballes said he was moving from Las 
Vegas to Chicago. Gillette asked for permission to search the car, which 
Caballes, not surprisingly, declined to grant. Gillette got permission from 
a dog instead. Trooper Craig Graham, upon hearing Gillette call in the 
stop, decided to swing by with a drug-sniffing canine, conveniently 
arriving just as Gillette was writing Caballes a warning ticket. For 
Caballes, one sniff by that dog was the difference between a warning and a 
12-year prison sentence.

But according to the Supreme Court, the sniff was not a search. "A dog 
sniff conducted during a concededly lawful traffic stop that reveals no 
information other than the location of a substance that no individual has 
any right to possess does not violate the Fourth Amendment," wrote Justice 
John Paul Stevens for the six-member majority.

The decision built on a 1983 ruling that said "subjecting luggage to a 
'sniff test' by a well-trained narcotics detection dog does not constitute 
a 'search' within the meaning of the Fourth Amendment" because it 
"discloses only the presence or absence of narcotics, a contraband item." 
In other words, the only privacy interest it violates is a drug smuggler's 
desire to conceal his stash, which is not protected by the Fourth 
Amendment's prohibition of "unreasonable searches and seizures."

This argument is based on a myth. As Justice David Souter, one of two 
dissenters in Illinois v. Caballes, pointed out, "the infallible dog...is a 
creature of legal fiction."

Souter cited examples from court cases of dogs with error rates of up to 38 
percent. "Dogs in artificial testing situations return false positives 
anywhere from 12.5 to 60% of the time," he added.

In short, it is simply not true that a drug-sniffing dog "discloses only 
the presence or absence of narcotics." Even leaving aside the possibility 
of deliberate deception or honest error by police officers eager to turn a 
hunch into probable cause, the dogs themselves make mistakes, responding to 
subconscious cues from their handlers, alerting to food or residual odors 
of drugs that are no longer present, mistaking items associated with drugs 
for the drugs themselves, and so on.

Whatever the cause of a false alert, it exposes innocent people to the 
inconvenience and humiliation of drug searches they have done nothing to 
justify. Now that the Court has said police need no special reason to bring 
in the dogs, provided they are otherwise complying with the law, such 
searches will become more common, and they need not be limited to routine 
traffic stops. Justice Ruth Bader Ginsburg, the other dissenter in this 
case, warned that the Court's analysis "clears the way for suspicionless, 
dog-accompanied drug sweeps of parked cars along sidewalks and in parking 
lots," even of cars stopped at traffic lights. If you happen to be caught 
in such a dragnet, just keep telling yourself it's not really a search.