Drug War Issues
Politics & Advocacy
The US Supreme Court Wednesday heard oral arguments in a pair of cases out of Florida involving the use of drug sniffing dogs. One case is about whether it is legal to use drug dogs to sniff around the outside of homes without a warrant and the other is about how reliable the drug dogs actually are. The cases have the potential to either expand or restrict the use of drug dogs under Fourth Amendment jurisprudence.
In both cases, the Florida Supreme Court held that the drug dog searches were illegal, in Jardines because it was a warrantless search of a home and in Harris because it didn't find sufficient evidence of the drug dog's reliability. In both cases, the state of Florida appealed.
The Jardines case raises the issue of whether homes are subject to a higher Fourth Amendment standard than automobiles in traffic, luggage being sniffed on a conveyer belt, or packages being sniffed at a package delivery service. The Supreme Court has upheld the warrantless use of drug dogs in those cases, but has been inclined to grant greater protections to the sanctity of the home, rejecting, for example, the use of thermal imaging equipment to detect marijuana grow operations.
Gregory Garre, arguing for the state of Florida, ran into problems with some justices when he suggested that a drug dog sniff of a residence does not constitute a search under the law and thus no warrant is needed.
If that were the case, Justice Ruth Bader Ginsburg replied, wouldn't police be able to just walk down the street with a drug dog in "a neighborhood that’s known to be a drug-dealing neighborhood, just go down the street, have the dog sniff in front of every door, or go into an apartment building? I gather that that is your position."
"Your Honor, they could do that," Garre said.
Justice Elena Kagan also questioned Garre's rationale that a drug dog sniff was somehow different from a technology that allowed police to see inside a home -- such as the thermal imaging the court had previously ruled against. If someone invented a "Smell-o-matic" machine, Kagan said, police would still need to get a warrant to use it to search the home.
Jardines' attorney, Howard Blumberg, argued that the thermal imaging precedent applied to drug dogs at a home as well. Using a drug dog outside a house was cut from the same cloth, he said.
"I would submit that would basically be the same thing as a police officer walking up and down the street with a thermal imager that's turned on," Blumberg said.
Justice Anthony Kennedy, often a deciding vote on the closely divided court, challenged Garre on his contention that people with contraband in their homes have no expectation of privacy.
"Don't ask me to write an opinion and say, 'Oh, we're dealing with contraband here, so we don't need to worry about expectation of privacy,'" Kennedy said.
But Kennedy was also reluctant to accept Blumberg's argument that when police are trying to find something people are keeping secret, it amounts to a search under the meaning of the Fourth Amendment.
"To say our decisions establish that police action which reveals any detail an individual seeks to keep private is a search: that is just a sweeping proposition that in my view, at least, cannot be accepted in this case. I think it's just too sweeping and wrong,’" Kennedy said.
"I would add a few words to the end of that statement: Anything that an individual seeks to keep private in the home, and that's the difference," Blumberg replied.
In the Harris case, it was the reliability of drug dogs that was at issue.
"Dogs make mistakes. Dogs err," Harris's attorney, Glen Gifford told the justices. "Dogs get excited and will alert to things like tennis balls in trunks or animals, that sort of thing. There is no canine exception to the totality of the circumstances test for probable cause to conduct a warrantless search. If that is true, as it must be, any fact that bears on a dog's reliability as a detector of the presence of drugs comes within the purview of the courts."
Questions about the reliability of drug dogs have been on the rise in recent years. 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% of the time, and only 27% of the time for Hispanic drivers.
Justice Sonia Sotomayor cited an Australian study that found a drug dog only correctly identified drugs 12% of the time.
"I'm deeply troubled by a dog that alerts only 12% of the time," she said.
Garre responded that the study could be read differently, raising the number of correct alerts to as high as 70% -- if you included instances where the person the dog alerted to had used in been in contact with drug prior to the dog's alert.
And Justice Department attorney Joseph Palmore, arguing in support of Florida's position, told justices they should not let questioning of the dogs' skills go too far.
"I think it's critical... that the courts not constitutionalize dog training methodologies or hold mini-trials with expert witnesses on what makes for a successful dog training program," he said, citing the use of dogs in multiple search endeavors. "There are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy. So, in situation after situation, the government has in a sense put its money where its mouth is, and it believes at an institutional level that these dogs are quite reliable."
The Supreme Court will decide the paired cases sometime next year.
Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.
Comments
What if a Drug-Dog sniffs your Ass?
What if a drug-dog sniffs my ass?
What kind of legal protections do I and my ass have?
Do I have to state whether or not I have drugs up my ass?
Or what if I only had drugs up my ass recently, but not
anymore? (Hypothetical questions, okay? Just asking.)
Is it conspiracy if a drug-dog sniffs my ass?
See, this is all very troubling.
If a dog sniffs my ass, then we've become "best-friends-forever."
But if that dog is a cop, doesn't that introduce bias? Are we
committing a conspiracy? Hey, I'm no lawyer. Just a concerned
citizen.
So if someone has a bunch of
So if someone has a bunch of cats in their house and the dog "signals" the officer, this is probable cause?
Let them go ahead and try. The amount of "false-positives" this experiment will have is going to be obscene.
Bill of Rights
Read it. Your wrong.
:)
The article clearly states
The article clearly states that flying over a house with thermal imaging to find drugs IS rulebreaking according to the Supreme Court.
U.S. Government Intends to Kill the Fourth Amendment
Corrupt Police are alleged to train drug sniff dogs to give false drug alerts on cue—so that police can circumvent the Fourth Amendment to search vehicles and other property. Police may be motivated to circumvent the Fourth Amendment to Forfeit Property. Corrupt Police that train dogs to give false drug alerts to search property, may plant evidence supposedly discovered by their drug dog to make arrests and seize property. Imagine police whose compensation increasingly is dependent on asset forfeiture going to different homes without evidence of wrong doing with drug dogs, they secretly cue to give a false drug alerts as a premise to raid Citizens’ homes.
Is this where America is Headed? The developing U.S. Police Surveillance State intends to completely thrash the Fourth Amendment, not require warrants when hiding surveillance cameras and listening devices on private property; when seizing and searching Americans’ electronic transactions, phone calls, email—when spying on Citizens’ lawful activities. Congress and Federal Courts have so weakened the Fourth Amendment e.g. using the USA Patriot Act Government and law enforcement (without probable cause) search Citizens’ homes and confidential information (in hopes of finding evidence) to prosecute Americans in criminal, Civil and Asset Forfeiture Proceedings.
With the coming U.S. Police Surveillance State expect higher unemployment, the economy to stagnate and huge increases in federal taxes to support the Surveillance State. Historically once Citizens fear a Government Police Surveillance State they don’t risk investing—in homes, income producing property or businesses a police state government can confiscate (without due process). For example: U.S. Government can use the National Defense Authorization Act of 2012 to charge without providing so called secret evidence that all of a Citizen’s assets are subject to civil government forfeiture under the USA Patriot Act—claim a Citizen supported an undefined terrorist act or hostilities; charge without providing evidence that a Citizen’s associate, tenant, visitor or employee committed a crime or violation that made their real property, business and or other assets subject to government forfeiture.
In a Police Surveillance State, government employees are usually paid higher salaries and more benefits compared to working citizens spied on by Government. Expect individuals and businesses that support or are connected to the developing U.S. Government Police Surveillance State will more easily secure government employment and business contracts while most other Americans will be shut out. That happened in Nazi Germany after Hitler started enforcing laws similar to The National Defense Authorization Act of 2012 that Pres. Obama signed among others. Some U.S. corporations and their operatives work so closely with U.S. Government and law enforcement to spy on, arrest Americans and forfeit their property, they appear to have merged with U.S. Government—similar to Hitler’s SS and (private secret police) Gestapo that merged its police and spy activities with the Reich Government to target German Citizens for arrest and property forfeiture that opposed the Nazi Government.
Should a Total U.S. Government Police Surveillance State take over America, expect most tangible assets owned by Americans will depreciate, become difficult to sell. Once large numbers of Americans fear a U.S. Police State, most consumers will buy only products absolutely necessary. Expect corporations and individuals protected by a U.S. Police State, that don’t have to fear U.S. Government or police confiscating their property, will profit buying up Americans’’ distressed real and personal property; including property confiscated by U.S. Government. That happened in Nazi Germany.
Expect Americans will be afraid to involve themselves with grass-roots causes. Under NDAA, U.S. Government or the President can charge any activity, statement, communication supported or (was directly aligned) with an individual or group that government deemed a threat to National Security to order someone’s arrest; including journalists.
It appears problematic at some point, Americans won’t be allowed employment or the right to operate a business unless approved by Homeland Security; and Homeland will prohibit without explanation Americans using pubic and private transportation without Government approval.
Why are they even at my home?
The fourth amendment has words to the effect that, surveillance is illegal. That you must see a crime in order to legally investigate that crime.
The police are doing sweeps like the brits did during the colonial days. When they sweep they can plant evidence or accuse based on circumstantial evidence. [the bank down the street was robbed last week and during a sweep of your neighborhood you were found to possess the same type of gun used in the robbery].
A search is a search. It doesn't matter what tool you put between a man and his target. A dog,infrared,a spyglass,a drug test, a drone or whatever. It's a search. The judge said that, "no one has a expectation of privacy if they have contraband in their home".
That's not what the Constitution says. It says they need to see me take it into the house. They need to see it in my possession before they can even allude to the fact it may be in my possession.They have to witness a crime.We have been lulled to sleep by cool 70s tv detectives that, regularly broke into the homes and businesses of the known guilty.
This ain't tv.They can't just guess and say "it must be in there" and thus get a warrant to ransack my home.[ Let's face it,that's what they are asking for. To legally come in my home and literally destroy it's contents while searching for a crime.] The warrant is for known contraband. It's not a search for contraband that isn't known. They must note what they are looking for and where they are going to search for it. Read the damn Constitution !
Notice all of the SWAT shows on tv now? The animal control shows? They use propaganda to instill the image in the american psyche that, if the cops are looking at your neighbor he is absolutely guilty. If they knew they wouldn't have a need to get into my house to prove it. If I'm a criminal they don't need to come to my home they should be able to catch me in the act.
There is absolutely nothing moral or just about what these drug warriors do. The sad part is america thinks that cops only violate the guilty. That, they only cheat in the war on drugs. They only break the law to enforce the law against known criminals and not the good taxpayers. They only set up their no due process courts for the evil in our nation. They only take rights away from the bad guys.
If your rights are being canceled it goes further up the chain than the local cop. If your votes are being canceled it goes up the chain farther than your local politician. Like the good judge said....if you're not guilty you have rights. If you're guilty[how do they know?] then, you don't have any rights. So what is the test? The test is the U.S. Constitution. Read it. Know it. Follow it to the letter like they do their unjust laws.
In reply to Why are they even at my home? by Nedmorlef (not verified)
It was the attorney
It was the attorney representing the government who said the guilty have no expectation of privacy, the Judge actually told him he was wrong, though that is no guarantee they will actually rule correctly, they love to point out flaws in arguments, then rule in the government's favor anyway. It seems to be getting more and more difficult to get the SCotUS to not defer to government, most recently with citizen's united and Obamacare each getting the thumbs up on the flimsiest of stretched meanings of "speech" and the commerce clause.
Add new comment