Pubdate: Fri, 29 Mar 2013
Source: Las Vegas Review-Journal (NV)
Copyright: 2013 Las Vegas Review-Journal
Website: http://www.lvrj.com/
Details: http://www.mapinc.org/media/233
Page: 8B

COPS NEED WARRANTS FOR DOG SEARCHES ... ... SOMETIMES

By a disturbingly slim 5-4 majority, the U.S. Supreme Court ruled
Tuesday police cannot bring a drug sniffing police dog onto a
suspect's property to look for evidence without first getting a search
warrant. The ruling upholds a Florida Supreme Court ruling throwing
out evidence seized in the search of Joelis Jardines' Miami-area
house. That search was based on an alert by Franky the drug dog from
outside the closed front door.

Writing for the majority, Justice Antonin Scalia said an American has
the Fourth Amendment right to be free from the government's gaze
inside their home and in the area surrounding it. "The police cannot,
without a warrant based on probable cause, hang around on the lawn or
in the side garden, trawling for evidence and perhaps peering into the
windows of the home," Scalia wrote for the majority.

The four dissenting justices argued police with their dogs had as much
right to proceed up the walkway to the front porch as a mailman. But
Justice Scalia answered "We think a typical person would find it 'a
cause for great alarm' to find a stranger snooping about his front
porch with or without a dog."

The ruling is correct, backing down to a limited extent some of the
absurd violations of Americans' rights which have multiplied in
pursuit of the unwinnable "War on Drugs." But Tuesday's result leaves
in place widespread court permission for use of "drug-sniffing dogs"
in traffic stops, at airports, and so on.

Searching for explosives at airports may be a public-safety exception,
but allowing police to bypass the search warrant requirement in mere
pursuit of contraband eviscerates the Constitution.

As commentator Radley Balko points out at http:// tinyurl.com/b92rcgx,
such deference to the supposed expertise of drug dogs only
demonstrates that the current Supreme Court membership "is woefully
lacking experience in the actual practice of criminal law." Of the
nine justices, only Sonia Sotomayor and Samuel Alito have any such
experience, both as prosecutors. The court hasn't had a justice with
any real criminal defense experience since Thurgood Marshall retired
in 1992.

Even their handlers know a drug dog can't smell most drugs. Yes,
marijuana has a distinctive odor, but if purified cocaine, heroin, and
other injectable drugs give off any smell, it's generally the
lingering traces of chemicals used in their illicit manufacture. That
means a "drug dog" could easily alert on a car where someone has
recently spilled vinegar, mimicking the acetic acid produced as a
by-product of drug manufacture.

And this leaves aside the fact that courts usually have only the
handler's word that a dog "alerted," at all. The dog can't be
cross-examined and is hardly ever required to demonstrate its talents
for a jury.

Most canine officers are doubtless "playing it straight" as best they
can, but how can they know their animals aren't trying to please them
after picking up subtle body language?

The fallibility of the dogs has been proven repeatedly. In a survey of
drug dogs used by police departments in suburban Chicago last year,
the Chicago Tribune found that when a police dog alerted to the
presence of drugs during a traffic stop, a subsequent search turned up
narcotics just 44 percent of the time. In stops involving Hispanic
drivers, the dogs' success rate dropped to 27 percent. In other words,
the dogs were more likely to falsely "accuse" Hispanics.

Dogs don't racially profile, Mr. Balko notes, but dogs want to please
their handlers. Whether consciously or not, their handlers may convey
through body language an increased suspicion of certain suspects.

When Lisa Lit, a neurologist and former dog handler at the University
of California-Davis, brought 18 police dog-and-handler teams into an
empty church and told them to expect to find hidden drugs or
explosives - sometimes packaged in red paper - the dogs falsely
alerted in 123 of the 144 total searches, even though no drugs or
explosives were present.

It was the handlers who were fooled, not the dogs: The dogs were less
likely to give a false alert to a package of unwrapped sausages than
to a red-wrapped package that only the handler knew to look for.

Dogs have great noses, and most canine officers do their best, but
these failure rates indicate the "science" of canine drug detection is
about as reliable as some TV psychic. Searches require warrants that
require sworn affidavits setting forth probable cause. If we can't win
the drug war without substituting a Pollyannish faith in the magical
power of dogs, let's call the whole thing off.
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MAP posted-by: Matt