By a disturbingly slim 5-4 majority, the U.S. Supreme Court ruled March 26 that 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.
He was joined in his opinion by Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
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,” while the dissenters would allow police to walk as far as the front porch and from there “presumably peer into the house with binoculars with impunity. That is not the law, as even the state concedes.”
The ruling is correct, backing down to a limited extent some of the absurd violations of Americans’ right to be free of warrantless searches 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 an imminent-public-danger exception, but allowing police to bypass the search warrant requirement in mere pursuit of “mala prohibita” 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 or by-products left over from their illicit manufacture. That means a “drug dog” could easily alert on a car where someone has recently spilled vinegar, mimicking the acetic acid which is a by-product of heroin manufacture — and which is what the dog is really taught to search for.
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 on 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 published 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, and 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 then to a red-wrapped package that only the handler knew to look for.
Last year, a trained drug-sniffing dog even found a package of counterfeit passports at a U.S. airport. Can dogs tell fake passports from real? Of course not. “What likely happened is that her handler noticed something suspicious about the package. The dog picked up on her handler’s body language, then alerted to please her handler,” Mr. Balko concludes.
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 belief in the magical power of Fido’s sniffer, let’s call the whole thing off.