Debate Forum, 2/26

Debate Forum, 2/26

Debate Forum Center: Has probable cause gone to the dogs?

 By Alex Culpepper

Florida is a realm of resort hotels, blazing year-round summer sunshine and salty sea breezes. It’s also the U.S. Supreme Court’s proving ground for drug-sniffing dog cases regarding probable cause in searches. The Court has decided one case – Florida v. Harris – about the legality of using an alert by a drug-sniffing dog to qualify as probable cause for a search of a person’s vehicle. The Court unanimously backed the police in that case, overturning a previous Florida Supreme Court ruling. The other case – Florida v. Jardines – remains to be decided. It will determine whether that same alert by a drug-sniffing dog applies to a person’s residence and qualifies as probable cause.

To find evidence of illegal activity, such as drug possession, the police must have probable cause and a search warrant to investigate your vehicle or home. Probable cause could be any activity or characteristic a police officer deems suspicious and suggests evidence of a crime. One of the Court’s conclusions in the Florida v. Harris ruling was that the dog’s alert to contraband can be the sole probable cause that initiates a search of a person’s vehicle. With this decision fresh on the books, the Court will vote whether that same conclusion applies to a person’s home.

Those outraged by this ruling oppose it because they believe the warrantless use of a drug-sniffing dog is not probable cause and amounts to a Fourth Amendment violation of illegal search and seizure. In short, they believe that the justices have it backwards, meaning that probable cause should first be established and then the dog can sniff for something illegal. In addition, some people claim that the drug-sniffing dogs are not always as accurate as advertised and they can be manipulated by unscrupulous police officers to render false alerts.

The Supreme Court has upheld in the cases of traffic stops, airport luggage checks and package checks the contraband-sniffing dog is perfectly legal. The Court also ruled in the past the use of drug-sniffing dogs does not violate the Fourth Amendment because the sniff test is not a search and does “not involve opening or otherwise exposing non-contraband to public view, and it was specifically designed to reveal the presence of contraband.” To further support the use of drug-sniffing dog alerts as probable cause, the police claim the drug-sniffing dogs supply a formidable presence to successfully combat the drug trade.

Florida v. Jardines has been in the court for more than a year and who knows how or when the Supreme Court will vote? One thing is certain: the justices are generating more debate about this case than for Florida v. Harris. In the past, the Court has proclaimed a person’s home is entitled to more privacy than his or her car or luggage. On the other hand, the Court does have a history of supporting warrantless searches even though the justices make distinctions about where those searches can be performed.

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com


Debate Forum Question of the Week:

Should the police be allowed to engage in a warrantless seach of a private residence based solely on the alert of a contraband-sniffing dog as probable cause?

Debate Left: Smell the glove

 By Ben Tomkins

In retrospect, I’m shocked that the reliability and constitutionality of using a drug sniffing dog has never crossed my mind. I guess I always assumed that the trained canine nose was a magic homing beacon that the cops on “Law and Order” kept in the trunk of their car in case Jerry Orbach’s perfect hair failed to charm a perp into confessing. You see Jerry standing there, shoving bamboo slivers under this guy’s fingernails, and the suspect is spitting in his face and denying everything. But as soon as they threaten to get the dog to search his house, the guy goes custard-colored and starts spilling his guts because he knows the second Rin Tin Tizzang shows up he’s going to plow through the drywall and cannonball into the giant pile of crack rocks stashed in the back closet like it’s made of dead fish.

It’s crazy, really, given that I own a dog and yet I considered it an article of faith that a police dog’s alert was unimpeachable. And I don’t own just any dog, I own a Brittany-from-a-rescue – as opposed to the morally inferior “he’s-a-pure-bred-Brittany.” This dog has been genetically perfected by humans to be trained to do absolutely anything and has a sense of smell that can detect one drop of pheasant urine in a five-mile radius. He points at squirrels and suspicious noises on instinct. He responds to the word “woah” and silently creeps forward at my heel like he’s got a ruckus-detecting circuit board crammed into his brainstem. And what does he use these magic powers for?

To seek out and consume his own feces.

That’s why every single dog at the Westminster Kennel Club has a leash around its neck. Oh, you never wondered about that? Why even the most highly-trained dogs on the planet are required to wear leashes? Yeah. It’s because every person in that ring knows that the second they take the slack off that dog’s windpipe it’s going to lick its balls right there on national television.

This is exactly the problem we run into when we begin using animals as a basis for probable cause. I could use my remaining words to speculate about police dogs as a whole, but animals do not come out of factories like infrared detectors. The most enlightening comments I heard on this subject came from a zookeeper whom I asked about elephant husbandry. He told me that zookeepers are not elephant experts. They are only experts on the elephants they take care of in their zoo. Sure, they can feed and take care of elephants anywhere, but dealing with intelligent animals is 90 percent specific experience and 10 percent general knowledge.

In that regard, I can only talk about my dog and how his behavior leads me to believe that police dogs on the whole might be unreliable witnesses and no less unconstitutional than an infrared scanner. Let us address three pertinent points:

1.  A police dog may be subject to its handler’s suggestion.

I think this has to be conceded simply because it’s an animal, but nevertheless let’s plumb this a little deeper. My dog is borderline psychic, but only about specific things. I know it’s trite, but my dog can sense something in my voice, body language and god knows what else that allows him to distinguish between when I’m calling him downstairs to clean up my spilled waffle syrup and when it’s shower time. I swear, I cannot tell what I’m doing differently, but he knows. Every time. I’ve even had my wife listen and she can’t tell, and she can sniff out BS better than anyone I know. Forget unscrupulous, do I think that a police dog might be impelled to give a false alert simply because its handler is suspicious? Absolutely. Particularly when I see how easy it is to get my dog worked up just by saying the word “toes” and pointing to where that waffle may or may not have hit the carpet.

2.  A dog’s sense of smell is less invasive than an infrared device. 

Justice Kagan states that a dog is constitutional because it’s sampling what’s freely available in the air rather than scanning what is not by way of an infrared device. It’s the fingerprint off the discarded cigarette trick. As soon as you make your personal effects publicly available, it’s fair game for the police. I don’t see a difference between a publicly available smell and a publicly available heat signature and neither does my dog. He will shove his nose into your crotch at the first available opportunity and he doesn’t care if he’s got a warrant.

3.  The mere presence of a police dog is enough to influence a suspect’s perception by police.

Um, yeah. If you saw how idiotic I act around my dog, you’d shoot me in the temple as a favor. Simply by introducing a large, dangerous animal into the equation, you’re putting someone under unfair pressure.

As such, I don’t see anything whatsoever that indicates that a dog would be any more reliable or less invasive than any other means of detection. I’m not saying they aren’t useful, but they should be held to the same probable cause standards as any other detection device.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tompkins at BenTomkins@DaytonCityPaper.com.

Debate Right- Notice to drug users: There is no expectation of privacy in your car

Recently in the case of Florida v. Harris, the U.S. Supreme Court, in a unanimous decision, ruled that law enforcement authorities could rely on the positive alert of a trained narcotics dog to help establish probable cause when undertaking the warrantless search of a vehicle. Some critics of the Court’s decision are concerned this decision has allowed the further watering down of the rights afforded to citizens under the Fourth Amendment to the Constitution. Unfortunately, depending of course on your point of view, that train left the station years ago.

ALERT: To all who want to move their stash of contraband by motor vehicle – the rights afforded under the Fourth Amendment have for some time been determined to not extend to your car. While the officer still needs to establish probable cause that a crime of some sort is being committed, hiding your drugs in your vehicle will not provide you with the full protection associated with the Fourth Amendment. He does not need a warrant, and according to Harris, if his dog thinks you’re hiding something, your vehicle will be searched. Therefore, I would advise acting accordingly!

Let’s take a closer look at the Fourth Amendment. The Fourth Amendment to the U.S. Constitution guarantees citizens protection against “unreasonable searches and seizures” and declares that search warrants should not be issued without proof of probable cause. As a part of the Bill of Rights, the Fourth Amendment was drafted to protect American colonists from invasions of privacy that had been used by officials of the British government. The British government had an annoying habit of using documents called “writs of assistance” which allowed royal officers to search homes of private citizens with broad discretion. The Bill of Rights was put into effect in 1791 to protect American citizens in their own homes from these unreasonable searches. In one’s own home, reasoned the great minds of that day, there was an expectation of privacy upon which government must not be allowed to infringe. That expectation of privacy the Framers intended to protect with the Fourth Amendment.

In order to search a home today, the authorities need a search warrant, which is based upon probable cause and states with specificity not only what is expected to be found, but where in the home it will be found. It prevents unfounded “fishing expeditions” by government officials and affords our citizens some expectation of privacy.

In the case just decided by the Court, the defendant, one Mr. Harris, had been pulled over for a routine traffic stop. The issues of his Fourth Amendment rights are related to his expectation of privacy in his vehicle. Guess what … there are few protections afforded by the Fourth Amendment if you are in your vehicle.  And friends … this is not a recent development. Going back nearly 90 years, the Court has found that vehicles do not afford the same expectations of privacy and as such do not afford the same Fourth Amendment protections as one’s home. In the 1925 case of Carroll v. United States, the Court found that vehicles could be treated differently than homes. It was ruled in Carroll that vehicles could be searched without a warrant if the officer deemed that there was probable cause. If the search turned up contraband substances and items, those items could be confiscated as evidence without a warrant.

So, back to Mr. Harris. After he was stopped, the officer noted that Harris was very nervous and that there was an open beer can in Harris’ vehicle. Based upon those observations, the officer asked Harris for his consent to search the vehicle. When Harris refused to allow the search, the officer brought his trained narcotics dog, Aldo, who while performing a sniff test around the Harris vehicle, “alerted” on the driver’s door. This led the officer to conclude that he had probable cause to search the vehicle. While the search turned up nothing Aldo was trained to detect, it did reveal ingredients for manufacturing methamphetamine. So even though Aldo got it wrong, the evidence from the search was still used to prosecute Mr. Harris.

There were additional technical arguments raised by Mr. Harris and his defense attorneys before the Court dealing with the training of the narcotics dog and the dog’s level of experience and accuracy. In the final analysis, the Court determined that the protections of the Fourth Amendment ended when the vehicle in which Mr. Harris was traveling left his garage and exited his driveway.

There is a second dog sniff case which was argued before the Court last October to which a decision is still forthcoming.  In that case, a well-trained Labrador retriever alerted at the door of a home where it then discovered that a marijuana-growing enterprise existed inside. Previously, the U.S. Supreme Court has decided that thermal imaging of a “grow house” was not allowed to be used by law enforcement to peer into a home from afar, as privacy issues afforded by the Fourth Amendment trumped the legitimate goal of law enforcement to stop illegal drug trafficking. That 2001 case was a split decision by the Court. While this second dog sniffing case might be a closer call it should be decided following the precedent set by the thermal imaging case. There is an expectation to privacy in one’s home for which the Fourth Amendment was specifically designed to protect.

David H. Landon is the former Chairman of the Montgomery County Republican Party Central Committee. He can be reached at DaveLandon@DaytonCityPaper.com.


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