Pubdate: Tue, 30 Oct 2012
Source: New York Times (NY)
Copyright: 2012 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Adam Liptak

QUESTION FOR JUSTICES: DO ALDO AND FRANKY'S NOSES ALWAYS KNOW?

WASHINGTON - Every dog has its day, but not every dog has its day in court.

Aldo, a German shepherd, and Franky, a chocolate Labrador retriever, 
are exceptions. The Supreme Court plans to hear their cases on Wednesday.

The basic question in both cases, said Orin S. Kerr, a leading expert 
on the Fourth Amendment right against unreasonable search, is this: 
"What do you think of a dog's nose?"

It is surely a marvel. But is it also, as the Supreme Court has 
suggested in previous cases, essentially infallible?

The great thing about dogs trained to sniff out drugs and other 
contraband, the court has said, is that they cannot invade human 
privacy because their noses reveal, as Justice John Paul Stevens put 
it in 2005, "no information other than the location of a substance 
that no individual has any right to possess."

As the prosecutors in Franky's case wrote, "anything else that the 
dog smells remains private."

But there is reason to doubt that dogs are, as a brief for two groups 
of criminal defense lawyers put it, "binary contraband detectors."

Justice David H. Souter, in a dissent from the 2005 decision, cited a 
study showing "that dogs in artificial testing situations return 
false positives anywhere from 12.5 to 60 percent of the time."

"The infallible dog," he wrote, "is a creature of legal fiction."

There is a growing body of evidence to support that view. Last year, 
The Chicago Tribune analyzed three years of data from suburban police 
departments and found that alerts from dogs during roadside 
encounters led to drugs or paraphernalia just 44 percent of the time. 
For Hispanic drivers, the rate was 27 percent.

Prosecutors say that does not prove anything. The drugs may have been 
exceptionally well hidden, they say, or there may have been lingering 
odors from drugs no longer present.

"When you enter the kitchen and smell popcorn, the fact that some has 
already eaten all the popcorn and put the bag outside in the trash 
takes nothing away from the fact that you accurately smelled popcorn 
in the kitchen," they wrote in Aldo's case, Florida v. Harris, No. 11-817.

The case illustrates the difficulty of separating false signals from 
real ones. In 2006, Aldo alerted his human partner to the presence of 
chemicals used to make methamphetamines in the pickup truck of 
Clayton Harris, who had been pulled over near Bristol, Fla., for 
driving with an expired license plate.

A few weeks later, the same law enforcement team pulled Mr. Harris 
over again, this time for a faulty brake light. Aldo again signaled 
the presence of drugs. But this time, the police officer found no 
contraband. It may be, of course, that Aldo may still smelled an old smell.

But there are more problematic possibilities.

"Some dogs as more accurate than others, and, like people, dogs have 
good days and bad days," Mr. Harris's lawyers told the justices. Dogs 
sometimes issue false alerts when they smell other dogs, the brief 
said, or when they are prompted, perhaps subconsciously, by their handlers.

Most important, according to a brief by some 50 law professors 
specializing in the Fourth Amendment, dogs do not smell drugs as such 
but rather molecules that are also present in the odors of lawful substances.

Cocaine, for instance, shares a component with snapdragons and 
petunias. Heroin shares one with vinegar and old aspirin. Ecstasy has 
something in common with lice repellent.

The Florida Supreme Court was not convinced that Aldo was reliable 
and ordered that the evidence he found be suppressed.

The same court also threw out the evidence in Franky's case, Florida 
v. Jardines, No. 11-564. The question there was whether police may 
use dogs to sniff for drugs outside of homes.

The sanctity of the home is at the core of what the Fourth Amendment 
protects. But there, too, the Supreme Court has drawn distinctions 
between methods that can only detect contraband and more general intrusions.

In 2001, for instance, the court limited the use of thermal-imaging 
devices to peer into homes. The problem, Justice Antonin Scalia 
wrote, was that the devices could detect not only heat lamps used to 
grow marijuana but also "at what hour each night the lady of the 
house takes her daily sauna and bath."

Perhaps dogs are different. Perhaps they really are binary contraband 
detectors capable of finding only illegal substances. Is that reason 
enough to let them sniff around our front doors?

In a 1984 dissent, Justice William J. Brennan Jr. foresaw a day when 
"canine cocaine connoisseurs" would "roam the streets at random, 
alerting the officers to people carrying cocaine."

The date of the dissent was fitting, and Justice Brennan's forecast 
was not fanciful. The authorities in Virginia and North Dakota have 
recently announced plans to sweep through housing complexes with dogs 
to sniff for drugs.
- ---
MAP posted-by: Jay Bergstrom