Our dog, a Maltese/Yorkshire terrier mix named Lana, knows one
trick: She sits on command. Sometimes this will get her a peanut,
but it does not really do anything for me.
When Aldo and Franky sit, by contrast, they accomplish something
important for their police handlers, signaling the presence of
illegal drugs and justifying searches that would otherwise be
prohibited by the Fourth Amendment.
Two cases the Supreme Court heard last week offer an
opportunity to impose long overdue restraints on this amazing
ability to transform a cop’s hunch into probable cause, which is
based on serious misconceptions about the meaning of a police dog's
"alert."
Aldo, a German shepherd, was riding with Officer Todd Wheetley
of the Liberty County, Florida, sheriff 's office on June 24, 2006,
when Wheetley pulled over a pickup truck driven by Clayton Harris
because of an expired tag. Harris seemed nervous to Wheetley, who
later said he was shaking, restless, and breathing rapidly.
Wheetley asked for permission to search the truck, and Harris
said no. But thanks to Aldo and the Supreme Court, Wheetley did not
have to stop there. Seven years ago, the Court
declared that "the use of a well-trained narcotics-detection
dog…during a lawful traffic stop generally does not implicate
legitimate privacy interests." So Wheetley was free to walk Aldo
around the truck.
According to Wheetley, Aldo got excited and sat down in front of
the driver's side door handle, thereby allowing him to search the
vehicle. Wheetley did not find any substances that Aldo is trained
to detect, but he did find 200 pseudoephedrine tablets, along with
other chemicals and supplies used to make methamphetamine.
About two months later, Wheetley stopped Harris again, this time
ostensibly because of a malfunctioning brake light, and went
through the same ritual. According to Wheetley, Aldo alerted to the
same door handle, but once again there were no drugs in the
vehicle.
Wheetley speculated that on both occasions Aldo smelled traces
of meth transferred from Harris' hand, which might be true
(although a smell on the outside of a vehicle does not necessarily
originate with its owner). But perhaps Wheetley, keen to confirm
his suspicions about Harris, misinterpreted Aldo's behavior or
subconsciously cued him to
alert.
Such factors help explain why searches triggered by
drug-sniffing dogs so often fail to find the substances supposedly
detected by the animals' keen noses: 56 percent of the time in a
2011 ;Chicago Tribune ;analysis,
74 percent in a 2006 Australian ;study,
96 percent in a 1984 Florida roadblock
operation. Yet the state of Florida insists Aldo's track record
is irrelevant in determining whether Wheetley's search of Harris'
truck was legally justified. It
says courts should simply accept police assurances that a dog
is "well-trained."
Amazingly, the Supreme Court last week
seemed inclined to accept that argument, which gives cops with
sufficiently accommodating dogs the ability to search at will. The
justices were more
troubled by the implications of that dog license in the case
involving Franky, a Labrador retriever whose alert to the front
door of a Dade County, Florida, house was the basis for a search
warrant that led to Joelis Jardines' 2006 arrest for growing
marijuana.
Even Justice Antonin Scalia, who in the Harris case
ridiculed the notion that cops might prefer dogs who let them
search whatever and whenever they want, seemed
persuaded that police should have a warrant before bringing
canine detectives to your doorstep for the purpose of uncovering
information about what is happening inside your home. Otherwise,
Justice Ruth Bader Ginsburg noted, police "could take a dog and go
[up to] every house on the street, every apartment in the
building."
If you think you have nothing to fear from such olfactory
dragnets because you have not broken the law, you should take a
closer look at when and why dog alerts lead to
fruitless searches of innocent people. So should the Supreme
Court.
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