“Probable Cause On A Leash”

-Submitted by David Drumm (Nal), Guest Blogger

500px-Seal_of_the_United_States_Supreme_CourtThe United States Supreme Court recently issued a unanimous (9-0) decision in Florida v. Harris (2013) that deals with probable cause and drug detection dogs. The Court overturned the Florida Supreme Court ruling (pdf) and held that the police officer had probable cause, based on the dog’s reliability, to search Harris’s truck. The Court also held that: “If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, the court should find probable cause.”

When testing a dog’s detection reliability in a “controlled setting,” a key factor would be whether the test is double-blind. That is, neither the dog and the handler know where the drugs are hidden. As is often the case however, it is the handler that designs the test and the handler will cue the dog.  Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is an expert on dogs’ olfactory capabilities, notes the handler “can’t help” but cue the dog and skew the training.

The unconscious cueing of animals is known as the “Clever Hans Effect.” Clever Hans fascinated audiences solving mathematical problems by stomping its front hooves. An investigation determined that the horse was responding to subtle, subconscious cues from its handler to indicate when to start stomping and when to stop.Clever Hans

In a UC Davis study, researchers found that “detection-dog/handler teams erroneously ‘alerted,’ or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present.” Even the best trained nose can be impacted by the handler. Anita M. Oberbauer, chair of the Department of Animal Science and the study’s senior author, said: “Dogs are exceptionally keen at interpreting subtle cues, so handlers need to be cognizant of that to optimize the overall team performance.”

Of course that implies that the handler wants to optimize the overall performance. Police have strong incentives to use a drug detection dog that alerts promiscuously. Asset forfeitures are a powerful incentive for cash-strapped police departments. When an officer’s performance reviews and potential promotion are based, in part, on the number of drug busts and drug seizures made, and the use of a dog prone to false positives is to an officer’s personal advantage.

K-9 teams use many tricks to conceal the dog’s supposed “alerts.” If the scene is being videotaped by a police dash-cam, the officer will stand between the camera and the dog, or take the dog to the front of the suspect vehicle where the dog is out-of-sight. Many police departments has stopped recording K-9 teams because “the dogs don’t alert when the cops say they alert.” Handlers also use excessive verbal encouragement and lavish praise to get the dog to respond.

An investigation of three years of data by the Chicago Tribune found that: “only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia.” When considering Hispanic drivers, the success rate fell to 27 percent. Justice Kagan, writing the opinion of the Court, noted that in such cases, “the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.” Such an hypothetical claim is a little too convenient and should raise suspicions about its validity. According to J. Kagan, a dog’s alert “establishes a fair probability—all that is required for probable cause—that either drugs or evidence of a drug crime … will be found.”

The Supreme Court is set to decide Florida v. Jardines, a case involving a drug detecting dog that was brought up to the front door of Jandines’s home. The dog sniffed around the front door for a minute or two and the officer claimed that the dog alerted. Based on the dog’s alert, a search warrant was obtained. The Florida Supreme Court determined that the search was illegal because the dog’s inspection of the front door was an illegal search. Keep your fingers crossed.

H/T: Radley Balko, Jacob Sullum, Julian Sanchez, Orin Kerr, Jacob Sullum.

76 thoughts on ““Probable Cause On A Leash”

  1. Supreme Court just threw the 4th Amendment under the bus. Heinous decision that further erodes our rights. Not sure everyone understands the slippery slope implications of all this but it will allow police to search anyone at will for anything they can say the dog is trained to search for. We will eventually end up with claims of dogs indicating hits outside homes from the street as well.
    Somewhere along the way, especially the last 30 years, we have lost our way as a nation and are now in an extremely vulnerable position in regards to the govt. Jefferson must be rolling in his grave. Someone let him out.

  2. Great article, bad case law for the citizens of this country. The 4th amendment has been chipped away by the Supreme Court now for over 3 decades. It’s sad to watch this erosion as a criminal defense attorney and as a citizen. Great reporting Nal.

  3. Michael, if an officer is walling down the street and sees what he thinks is a bomb or gun in someones hands and they walk into a house, he has probable cause to investigate. Now if same officer is walking down the street with a dog and the dog indicates a hit on a house for whatever he is trained to sniff for, that will be classified as probable cause.
    That means the police can simply stroll down your street with dogs and go into homes at will, according to the Supreme Court, which has sold us all out. Everyone knows the courts always tilt towards Law Enforcement. So all it will take is the officers word that the dog strongly indicated drugs, bombs whatever.
    Laugh if you wish and call it a stretch but this can EASILY lead to Gestapo tactics.
    Our govt is a mess and so is our judicial.Nobody is protecting our rights anymore.
    Something has to give before Orwells 1984 becomes a history book that shipped 75 years early.

  4. AMENDMENT IV (RATIFIED DECEMBER 15, 1791):

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and seizure (including arrest) should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it. The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.

  5. Great article, bad case law for the citizens of this country. The 4th amendment has been chipped away by the Supreme Court now for over 3 decades. It’s sad to watch this erosion as a criminal defense attorney and as a citizen. Great reporting Nal. -frankmascagniiii

    It’s much worse than many know or believe.

    And here’s the rub: Some people know, on some level, just how bad the situation is… but if I told the truth about what I know, it would be dismissed by most people. By the time good Americans wake up, it may well be too late.

    As to the 4th Amendment?

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    Anyone who believes it is living in a dream world. Some may pretend but, in reality, it’s meaningless.

    Thanks for confirming what you know, Frank M. There are still some good guys in the fight.

  6. The unanimous part is most depressing. It guarantees revolution lies not far ahead, and it will be both digital and recorded.

  7. Was it Scalia who said that the Constituion is dead? Well if it wasn’t then, our Supreme Corporate Court is doing everything it can to take if off of life support. I did not graduate from law school that long ago but the state of the Constitutional protections once enjoyed by Americans as one of the hallmarks of our revolutionary system has changed from day to a chilling and very dark knight. I hardly recognize the pro police intrusion standards now being crafted and written in stone by SCOTUS. A very sorry time indeed.

  8. Very interesting. I drive the southern route from Wisconsin to San Diego. I encounter @ least 2 stops on Interstates 10 and 8 where dogs are used. I’m sure they can smell my farts from eating great bbq and Mexican.

  9. Nal,

    This is a most important article done to perfection. What SCOTUS has allowed on all evidentiary fronts is the intoduction of pseudo-science into police work that allows LEO’s to void the Bill of Rights. It doesn’t stop with drug sniffing dogs; is is eyewitness testimony, fingerprints, handwritng analysis and even “lie detectors” though not allowed in Court. What you have are pseudo scientific forensic theories accepted as fact. Even though “lie detector evidence is not allowed in Court, it is a basic tool in many police investigations nationwide. This unreliable test if failed, convinces the LEO’s that a suspect’s “hiding something” and they then follow that false trial doggedly. The popularity of the CSI shows misleads the public into believing “forensic science” is a foregone conclusion.

  10. Interesting article David. I, too am surprised that it was a 9-0 vote for this further watering down of the 4th Amendment.
    nick,
    Just open a window a mile or two before the checkpoint. Or get Febreeze.

  11. The more I think of it, the more upset I get. The Florida Supreme Court got it right. The State should always have a high duty to prove in a probable cause situation. This officer did not keep records of the dog’s misses, just his successful hits. Shouldn’t the State be required to provide the full story of the “witness” dog? Sad.
    Finally, Kagan should be ashamed of herself. Anytime you vote with Clarence Thomas, you should wonder what you are doing wrong!

  12. The lawyers for the defendant blew it. They did not, at trial, or at a motion to suppress evidence prior to trial, raise the objection of Hearsay. There is no Hearsay of The Dog Exception in treatises or in state rules of evidence. Secondly, the right to confront the witnesses in court under the Confrontation Clause trumps any hearsay “rule”. But that issue did not get before the Court. Scalia is a supporter of the Confrontation Clause which requires the witness to be cross examined. One cannot cross examine the cop about what the dog actually sniffed. The cop is relating what the dog said. Dogs communicate by grunting, barking, sniffing, holding up the right paw or left paw, scratching on a wall– it is all communication.

    Now here is what you do, young public defenders out there in the world who defend clients: depose the cop and ask him/her if his dog is reliable. If Fido can tell him when he needs to go out to pee. If Fido can advise that the dog food bowl is empty. If Fido can tell him when there is someone at the door.
    And what does Fido do or say when he wants out? It is different than when he wants to tell you that there is pot in the car that he is sniffing, isn;t it?

    So he is good at communicating and you are good at interpreting? And Fido told you that there was pot not crap in that car? Yes.
    Objection. Hearsay of the dog.
    Objection. Confrontation clause. I have the right to cross examine the dog.

    I cannot believe that this case got to the Supreme Court without the foregoing being part of the record. In civil cases there is no exception to hearsay because the hearsay is that of a dog. In criminal cases there is no exception. The Confrontation Clause objection trumps ANY hearsay objection. Any judge in the world knows that dogs communicate different strokes to different folks and that the declaration that there is pot in a car or in a house is a communication.

  13. Liar, liar, your pants are on fire coppo. Any alert dog worth his salt would have scratched that pot car. So, just how did he Alert the coppo?

  14. Justice Scalia is coming off his high ground and not himself raising the Confrontation Clause issue, sua sponte or sewer sponte however ya spull it. Then there is the “reliability of the dog” issue. If Spot has an error rate of fifty percent then half the people who get searched will be victims of a crime themselves.

  15. Maybe we 24/7 tracking of officers, FBI agents, etc. and mandate that they separate “probable cause/reasonable suspicion” hours vs. “non-cause” hours – the general public may be surprised at the ratio – where the probable cause was fabricated using the dogs. Not questioning the officers intentions only their “means” (constitutional due process) – there is no fundamental understanding of the chronological process of the Fourth Amendment – you don’t fabricate probable cause.

  16. The case should have comprised three companion cases. Case one is the Florida case with the cop listening to his dog and relying on dog’s statements. Case two is the deaf and dumb guy who gave hand signals to the cop that there was pot in the car. Case three is where the prosecution had a police dog and put him on the stand at the motion to suppress which was denied. The dog testified via the Dogalogue Machine that he smell pot, that he did smell both smoked pot smell and leaf pot smell in the car and that he was positive that it smell like pot and not like tobacco or southern fried chicken. The defense objected on the grounds that a dog was not a credible witness. In Case Four the case is same as Florida case but the defense objected to the hearsay of the dog statements coming in thru the cop and on Confrontation Clause grounds.

    The oral argument would have gone like this:
    Justice Scalia: So, in case four we have the correct objection on Confrontation grounds and I will side with the Sixth Amendment and rule for the defendant. I will say that up front. But I am having trouble with Case Three where this dog testified through some machine. I am having no problem with reversing Florida (Case One) because the dumb schmucks at trial never raised the Confrontation Clause objection or hearsay of the dog. In Case Two I have no problems with deaf guy and hand signals being interpreted correctly but then it makes me see that this is a Confrontation Clause issue and that deaf guy should have been called at trial. He is not some Alert Dog. No dumb guy is all that alert.

  17. The Dogalogue Machine is not available to anyone other than my dogpac and another version for Dolphins here at the marina. The NSA has similar machines but is keeping quiet. So when the Dogalogue Machine is made available then the Dog Alert issues will be moot because the dogs can be called into court to testify. Raise your right paw and repeat after me. I am DogBiscuitGuy and monitor the machine and the dogs here at the marina. I am not a dog but a human but I was a dog in a prior life and that is the topic of another story.

  18. And yeah I went through the seminar on coming back as a dog when I was up there at the Pearly Gates but I chose coming back as a human this time.
    Nuff said, I am getting in deep do do with the NSA.

  19. First we ‘outsource’ the “waterboardin’ ” to dark regimes around the world. Next we outsource killing to Drones flying all over the world. Now we make it Kosher to delegate Dogs to show us with ‘scientific accuracy’ the Probable Cause true meaning(s).

    No, the Constitution ain’t dead, it just has more holes in it than a good block of Swiss Cheese!

  20. rafflaw, The way dogs obsessively sniff butts, I thought my farts would be a treat for the K-9’s. Am I wrong in that assumption?

  21. Diogenes: The Confrontation Clause of the Sixth Amendment was completely overlooked by defense counsel and by appellate counsel in this Florida case. The witness who smelled the pot was a dog. He spoke to a cop and conveyed that message. That it would take a dog to know a dog is perhaps a lesson lost on the Supreme Court. But you might agree that us dogs do have a different perspective than those Justices sitting on the Supreme Court, none of which ever represented a criminal defendant in a jury trial.

  22. Our farts are superior to human farts. So, we dogs dont really smell butts all that much. We sniff the pockets for dog biscuits. Many humans will bring dog biscuits around to the dog sites of the world and we are usually sniffing out the benefactors. Not the smelly butts.

  23. Nick and Rafflaw: Your farts might give away the truth that you had been smoking pot. That would have come out had the cops in the Florida case had a Dogalogue Machine and put the so called Alert Dog on the witness stand.

  24. BarkinDog:

    You have the best response here yet.
    You are basically saying that what was lost in 4th amend protections can be more than made up for on the hearsay, confrontation, clauses.

  25. “It is time to consider Impeachment. Scalia, Alito, Roberts gotta go.”

    Wrong. They all have to go. Its time to impeach of all of them. As well as most of Congress etc

  26. The dog’s alert is not part of the case against the defendant generally, so neither hearsay nor confrontation clause issues are present. Probable cause findings are often based on hearsay rather than an officer’s direct observations. (Don’t take this to mean I don’t have grave concerns about this decision which basically encourages law enforcement not to keep accurate records of a dog’s performance).

  27. I showed this news story to my cat this morning of the Supreme Court’s decision clearly ruling against the Preamble of the Bill of Rights, the Rights them-self & removing another layer of Judaical oversight of Law enforcement.

    Let me tell ya, the Cat is Outraged! He thinks Cats should be the ones to replace the judge’s Constitutional Authority, not the Dogs. LOL;)

    Seriously, 9 to 0, this Supreme Court is clearly Mentally Ill & needs Impeached or at have a case against them sent/heard before a Federal or State Grand Jury.

    How can the people themselves form Grand Juries to hear cases against these types?

    In case you’re still unsure go back & re-read Bush vs Gore, or what that case was called.

  28. As a dog owner that walks daily, with a very well trained dog, and as a scientist, I do not think even a double-blind would count. In the field, the dog would still know whether the handler wanted him to indicate drugs, and we can expect the dog to please his handler, scent be damned. If the handler tips his head, frowns, or just doesn’t like the driver, the dog knows that and will indicate drugs whether it smells them or not.

    It might do 100% in a double blind, that doesn’t really mean anything in the field. During a double blind, the handler’s understanding that it is just a test will leave him calm and neutral, that is not what we expect of handler’s in the field; if nothing else they need to be alert for a possible violent attack by their suspect or an attempt to escape if the dog does find drugs.

  29. I was sitting here at the marina at the Dogalogue Machine holding my bark until I read the comment by Tony C just above here. He is spot on. No pun intended Spot. I worked with a Hyw Patrol guy in W. Va. and today am his blind guy seeing eye dog. He drank too much moonshine that I had sniffed one night and pointed to and he went blind. We now live here near the marina and I walk blind guy around and advise on the aspects of the women etc. Sometimes a K-9 dog will say anything for a dog biscuit. So, we are all not reliable. We would be more reliable if you put us under oath on the witness stand and did that “raise your right paw” routine that BarkinDog barks about in the comments above. I might add that the Trooop will assign a dumb Leo to K-9 duty to work with a smart dog. The dumb Leo will mis-interpret our high fives and whatnot quite often. A dumb Leo can be quite an offender. If ya know what I mean.

  30. Gary C: The strongest spokesman for the 6th Amendment Confrontation Clause on the present Court is Justice Scalia. It seems out of place because generally he will not stand up for a defendant. But he is very articulate on the Confrontation Clause. Your right to confront your witness in court trumps any Donald who tries to get some witness statement into evidence by the back door method of just putting his statement into evidence by the witness’ affidavit, or some police report of what the witness said or some other little wrinkle conjured up. The Rules of Hearsay are anti-thetical to the Confrontation Clause. The schmucks who made up differing Exceptions to the Hearsay Rule over the decades have usually done so in the context of civil cases and then some unreconstructed State like Missouri will transfer them over to the criminal arena. Your right to confront the witnesses against you in open court in front of the jury so that the jury can determine the credibility of the dog or human on the witness stand is further ensconsced in the 14th Amendment which makes the right to due process of law and equal protection of the law and the right to liberty applicable to state court proceedings as well as federal courts. All of your 4th, 5th and 6th Amendment rights are protecting you in a state criminal proceeding.

    The Party of Lincoln was composed of Radical Reconstructionists who were focused on making this country a free country for all people, not just the white people or some white people like Southern Oligarchs. Blacks and poor white trash alike are treated equally and given all the due process, liberty rights and equal protections by virtue of the 14th Amendment. It can be summarized that the 13th Amendment freed the blacks and made them citizens, the 15th Amendment gave them the equal right of citiizenship to vote and the 14t Amendment gave all Americans, including poor white trash equality and liberty.

    I know that the foregoing is a dog rant but that is what we are here for. To Alert y’all to certain things that we have time to sit back and observe or contemplate.

    I am also glad to see that some of the commenters here agree that this Supreme Court needs to be replaced. Can you imagine the fact that none of them have ever once represented a criminal defendant in a state or federal jury trial? They are all Harvard and Yale and all stale.
    Nuff said or barked.

  31. The 4th, 5th, 6th and 14th Amendments provide the main protection against police violation of your rights to liberty, property, privacy, life. Article 5 of the 14th Amendment, which was passed way back in 1868 or so, gave Congress the right to pass legislation to enforce the Amendment’s provisions. Congress finally did so under the great work of LBJ in 1964 with the passage of the Civil Rights Act of 1964.

    Victims of LEO abuse have a right to file a civil cause of action against the state actors who violated their civil rights. I dont know if they would name the dog but they could include the Leo on the scene, the Superior Officers and the city involved who employs the police, ie. municipal liability under the Monell doctrine. The plaintiff can sue for punitive damages. See 42 U.S.C. Section 1983 and Section 1988 on attornyes fees.

    The four Constitutional Amendments are here:

    Amendment IV [ Annotations ]
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
    Amendment V [ Annotations ]
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
    Amendment VI [ Annotations ]
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

    Amendment XIV. fn6 [ Annotations ]
    Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
    Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
    Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
    Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

    — so sickem.

  32. Under the Fourth Amendment, when the police say that they have probable cause to search without a warrant, they have to say under oath that they had probable cause. And so what does cop say? I learned from my dog that there was pot in the car. So, cop is stating under oath hearsay that he heard from a dog.

    This is the point BarkinDog makes with this hearsay of the dog argument. The lawyers in the Florida case and the other cases in the pipeline to the Supreme Court, did not make the right objections or record on the hearsay issue and the right of the defendant to confront the witnesses against him, and that means the dog.

  33. There is no Hearsay of the Dog Exception, which is recognized in any state or federal evidentiary rule. I make fun of the “hearsay of the dog” here and am merely pointing out that the lawyers for the defendant missed the issue entirely. The cop’s statement under oath that he had probable cause to search the car or house without a warrant is based on what he heard or saw the dog do. This is no different than having a deaf and dumb interpreter there interpreting deaf and dum guy’s hand signals. So, the court, had the objection been raised, is violating the hearsay rule and more importantly in a criminal case, the Confrontation Clause.

    The police department in NYC uses snakes to sniff out vehicles. Not dogs. Wait until that comes up in court.

  34. One of the reasons that the Supreme Court ruled for the prosecution here is because humans recognize the value and reliability of their dogs. We dogs ought to stick up for each other and be glad that the Supreme Court has put us on this pedestal. If I bark that there is pot in that car then by dog there is pot in that car. Case over. Thank you Justice Kennedy.

  35. Yeah, that is what the Florida case is all about. Dogs are reliable. We know what we preach. We got our day in court without having to be there under oath. We did not have to raise the right paw and repeat after the clerk that litany about truth.

  36. This dogpac is a house divided. Some of us like the fact that us dogs are exalted and our bark is taken on a higher meaning than that of a mere mortal. These lawyer dogs are not thinking about how this works for the image of dog. I have changed my mind on this subject. We need a hearsay of the dog exception in criminal cases.

  37. Well it is a hearsay of the dog exception to both the hearsay rule and the Confrontation Clause. The Supreme Court has not characterized it as such but that is where it stands. And this dog does not like it. But, dogs will be dogs and disagree. I have already been bitten once on the rear today by itchinBayDog for my rants.

  38. I ordered some flyers off vista print for my new business to see if I could drum up some customers. Quick question…What’s an easy way to have these handed out to people? I’m pretty busy running the business and I really don’t have the time to run around handing out flyers to people.

  39. i’ve been subjected to several k-9 searches over the years. i’ve seen the dog walk right by an area he should have reacted to. at one in georgia they almost couldn’t get the dog to walk around the van. after the officer tried to get the dog to jump on the side of the van, the dog still wouldn’t jump. i suggested he rub bacon grease on the side of the van (you can guess what the officer told me).

    here in volusia county fl. they would wave money in front of the dogs and then confiscate the cash.

    the use of dogs as probable cause is a joke.

    p.s. you should see how the trained k-9’s react when you have your dog with you and she’s in heat.

  40. I would characterize the decision of the Supreme Court as “deference to the Dog” and think that dogs should be happy with the respect and deference given to them by the high court. Dogs were put here on earth to guide humans. Here the Supreme Court of the Exceptional nation is giving deference to the judgment of the dog. Roll with it doggos and quit your itchinBay.

  41. Yo: Frequent Business Flyers Guy: Dont be so lame as to ask others how to be unlame to walk and talk and hand out medieval flyers. Go on line. Also, get off our blog.

  42. “We’ve moved away from surveillance based on individualized suspicion, the Fourth Amendment standard of probable cause and a warrant has basically evaporated,” German told Reason.tv last year. “And the government can now collect information about people it doesn’t even suspect of wrongdoing.” -Michael German, ACLU (formerly with the FBI)

    http://www.aclu.org/blog/author/michael-german

    http://www.rawstory.com/rawreplay/2011/09/aclus-mike-german-domestic-surveillance-no-longer-based-on-probable-cause/

  43. Having read the decision and having read the article and comments above, and having been a lawyer in a prior life and now being a dog, I find it appropriate to leave us dogs on the pedestal that the Court has so kindly and aptly provided and suggest that we allow sleeping dogs to lay, so to speak.

  44. Ay, the Supreme Court of the Exceptional Country has put dogs on a pedestal. I hope this extends to the courts in Ireland.

  45. Our finest hour! The international dogpac is a churnin today. Tanks Yanks.
    Dogs on a pedestal. All those humans have pot if we bark so.

  46. Obama’s Kagan is sidin with the faschists. Sometimes the Irish will do that, Had she sided with cats like this I would be itchinBay.

  47. This is bigger than Carmen Miranda for police departments. Every precinct will have a K-9 Dog and K-9 Leo. It is a constitutional dog-pass. Even guide dogs for the blind guys will get more respect after this decision. We walk on vasser.

  48. The Kagan Test, and henceforth it surely will be known as the Kagan Smell Test, is quite simple. The defendant has the right to question the credibility of the dog. But not question or cross examine the credibility of the dog himself. The is a bad smell test and one wont want to step in it. Here is a partial of what she held:
    “But a defendant must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.”

    So you can cross examine the LEO who relied upon the hearsay of a dog but not cross examine the dog.

    I guess its like the commercial with the kid with the southern accent: Its not fried chicken daddy, its Shake n Bake. Lets mix up the constitutional standards. We deny a cop the right to testify as to what a person said and require the person to be brought to court to be questioned in front of the jury in open court so that they can question and examine the credibility of the person. But we allow the cop to testify as to what a DOG said without the right to bring he dog into court to allow the jury to examine the credibility of the dog. Is it not time that we exclude DOG STATMENTS?

    What kind of Supreme Court do we have in this country? Did any of them ever try a lawsuit as a defense counsel in thier whole lives? Inquiring minds want to know.

  49. This place is popular. Rolling down from the blog…..past the comments.

    Dog trainer will give signals unconsciously of presence when dog nears goal. Dog observes trainer, responds to the signal, and gets a dog goody.
    The snuffling and the runaround is also taught by receiving goodies.
    Crooked dog handlers incentivised by his reward system, plays the odds and signals the dog (unconsciously?) to mark. which gives the LEO a chance to mangle the bill of rights and get a reward.

    Of course there are correct ways to train dogs to smell out stuff. But who needs correctness when you are playing the odds.

    Who are the dumb persons here? Us or the Sct?

    The Supreme Court? Don’t they also get goodies. For approving stupid bills, for not approving others, for not taking a stance at all. Lots of ways to get a goody.

  50. Idealist is right-on. I can see a case arising where blind guy named Donald and his guide dog say one thing about pot being in the car and LEO and his k-9 say another thing and its the k-9’s word that trumps Donald. Only in NY.

  51. Wonderful article nal…. I saw a or read a piece that dogs can be trained to give false positives scents…. It’s all in how the handler trains them… Pretty much like the Utah troopers arrest…. Until challenged… They stand….

  52. It is interesting to me that when it comes to attacking the First or Fourth Amendments to the Constitution, the judges have no problem or hesitancy to chip away at their protections. If that is true, why do the protections of the Second Amendment seem so sacred? Aren’t Free Speech zones and decisions that strip away the need for a warrant just as onerous as reasonable gun control?

  53. raff, SCOTUS is increasingly ruling against the Bill of Rights as a whole. The biggest reason the 2nd is not messed with quite as much by either SCOTUS or Congress is because they know that if they attempt to ‘grab guns’ that they will probably be reaching for them… with the barrels pointed at them.
    Personally I think we are about to reach that stage anyways. The erosion of rights has gone past the breaking point. We have lost far too much already

  54. Also everyone please keep in mind, the 2nd Amendment is the entire reason that our freedoms even lasted this long to begin with.

    Keep that in mind the next time you advocate any sort of gun control

    “Americans have the right and advantage of being armed – unlike the citizens of other countries whose governments are afraid to trust the people with arms.”
    James Madison

  55. The issue with the opinion is neither the reliance on hearsay, nor the inability to cross-examine the dog. The legal issue is the reasonableness of the officer’s reliance on the dog. This opinion basically creates a test which rewards law enforcement for failing to generate and provide evidence which might establish that such reliance was unreasonable, but as to any dog the information will not be available from any other source. The suggestion that the searching officer’s own training of the dog (which involved the officer hiding materials and then using the dog to find them) has any value at all in this analysis is ludicrous.

  56. Raff, that is a good thing actually. But regardless I truly think fear is a major part of it. Answer this. What do you think would happen if they said everyone had to turn in every gun they owned tomorrow. If you answer anything other than immediate ‘Revolution’, you have guessed incorrectly.

  57. The U.S. Supreme Court: Architects of the American Police State

    By John W. Whitehead

    February 25, 2013

    https://www.rutherford.org/publications_resources/john_whiteheads_commentary/the_us_supreme_court_architects_of_the_american_police_state

    “The unspoken power dynamics in a police/civilian encounter will generally favor the police, unless the civilian is a local sports hero, the mayor, or a giant who is impervious to bullets.”—Journalist Justin Peters

    From time to time throughout history, individuals have been subjected to charges (and eventual punishment) by accusers whose testimony was treated as infallible and inerrant. Once again, we find ourselves repeating history, only this time, it’s the police whose testimony is too often considered beyond reproach and whose accusations have the power to render one’s life over.

    In the police state being erected around us, the police can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts. Making matters worse, however, police dogs—cute, furry, tail-wagging mascots with a badge—have now been elevated to the ranks of inerrant, infallible sanctimonious accusers with the power of the state behind them. This is largely due to the U.S. Supreme Court’s recent ruling in Florida v. Harris, in which a unanimous Court declared roadside stops to be Constitution-free zones where police may search our vehicles based upon a hunch and the presence of a frisky canine.

    This is what one would call a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death. This latest wound, in which a unanimous Supreme Court determined that police officers may use drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops, comes on the heels of recent decisions by the Court that give police the green light to taser defenseless motorists, strip search non-violent suspects arrested for minor incidents, and break down people’s front doors without evidence that they have done anything wrong.

    These are the hallmarks of the emerging American police state, where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens. Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, in a police state such as ours, these instances of abuse are not condemned by the government. Rather, they are continually validated by a judicial system that kowtows to every police demand, no matter how unjust, no matter how in opposition to the Constitution.

    The justices of the United States Supreme Court through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency have become the architects of the American police state.

    In Florida v. Harris, for example, the Court was presented with the case of Clayton Harris who, in 2006, was pulled over by Officer William Wheetley for having an expired license tag. During the stop, Wheetley decided that Harris was acting suspicious and requested to search his vehicle. Harris refused, so Wheetley brought out his drug-sniffing dog, Aldo, to walk around Harris’ car. Aldo allegedly alerted to the door handle of Harris’ car, leading Wheetley to search the vehicle.

    Although the search of Harris’ car did not turn up any of the drugs which Aldo was actually trained to detect, such as marijuana, Wheetley found pseudophedrine, a common ingredient in cold medicine, and other materials allegedly used in the manufacture of methamphetamine. Harris was arrested and released on bail, during which time he was again stopped by Officer Wheetley and again subjected to a warrantless search of his vehicle based upon Aldo’s alert, but this time Wheetley found nothing.

    Harris challenged the search, arguing that the police had not provided sufficient evidence that Aldo was a reliable drug-sniffing dog, thus his supposed alert on Harris’ door did not give the officer probable cause to search the vehicle. The Florida Supreme Court agreed, ruling that police should be able to prove that the dog actually has a track record of finding drugs while in the field before it is used as an excuse for a warrantless search.

    Unfortunately, the U.S. Supreme Court did not see it that way. In reversing the Florida Supreme Court’s ruling, the U.S. Supreme Court sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. As such, the Court has now given the police free reign to use dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. The ruling turns man’s best friend into an extension of the police state.

    The Supreme Court’s decision is particularly alarming when one considers that drug-sniffing dogs, even expertly trained dogs with reliable handlers, are rarely accurate. One study demonstrated that dogs were incorrect in drug identification up to 60% of the time. A 2011 study published in Animal Cognition involved a series of tests, some designed to fool the dog and some designed to fool the handler. The dogs in these tests falsely alerted 123 out of a total of 144 times. When a test was designed to fool the handler rather than the dog, the dog was twice as likely to falsely alert.

    As the Animal Cognition study shows, dogs are heavily influenced by the behavior and biases of their handlers. If an officer thinks he is likely to find something, whether due to personal bias or because he finds the suspect suspicious, he often cues his dog—consciously or unconsciously—to alert on the area to be searched.

    Despite being presented with numerous reports documenting flaws in the use of drug-detection dogs, the U.S. Supreme Court opted to ignore plentiful evidence that drug dog alerts are specious at best. Moreover, the justices also chose to interpret Aldo’s failure to detect any of the drugs he was trained to find during the two sniff searches around Harris’ car as proof of Aldo’s superior sniffing skills rather than glaring proof that drug-sniffing dogs do make mistakes. Incredibly, the Court suggested that the dog alert was due to Aldo having smelled an odor that was transferred to the car door after the defendant used methamphetamine—a supposition that is nearly impossible to prove.

    Law enforcement officials have come up with a slew of clever excuses to “explain” the not uncommon phenomenon of dogs that alert but fail to uncover drugs. For example, in 2008, U.S. border patrol agent Christopher Jbara claimed that a dog alerted to a car containing no drugs because the car’s window “had been washed by a window washer on the street… and the water used to clean it could have been contaminated with bong water.” The real reason may be that the odors which dogs are trained to detect are simply chemical compositions found in a number of common products. For example, to a dog, perfume may smell like cocaine, glue may smell like heroin, and mosquito repellant may smell like the drug ecstasy.

    Unfortunately, the Supreme Court’s decision is merely the latest in a long line of abuses justified by an institution concerned more with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution. For example, in 2011, the U.S. Supreme Court ruled 8-1 in Kentucky v. King that police may smash down doors of homes or apartments without a warrant when in search of illegal drugs which they suspect might be destroyed. Despite the fact that police busted in on the wrong suspect in the wrong apartment, the Court sanctioned the warrantless raid, saying that police had acted lawfully and that was all that mattered.

    In April 2012, a divided Supreme Court ruled in Florence v. Burlington that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials, which involves exposing the genitals and the buttocks.

    This “license to probe” is being extended to roadside stops, as police officers throughout the country have begun performing roadside strip searches without any evidence of wrongdoing and without a warrant. For example, Angel Dobbs and her niece, who were pulled over by a Texas state trooper on July 13, 2012, allegedly for flicking cigarette butts out of the car window, were subjected to roadside cavity searches of their anus and vagina. The officer claimed to be searching for marijuana. No marijuana was found.

    With case after case stacking up in which the courts empower the police to run roughshod over citizens’ rights, the Constitution be damned, the outlook is decidedly grim. In fact, the U.S. Supreme Court still has to rule on another drug-sniffing, dog-related case, Florida v. Jardines, which challenges warrantless searches of individuals’ homes based on questionable dog alerts. For those hoping that our rights will be restored or at least protected, you could have a long wait.

    Indeed, the next decision from the Supreme Court might just take the Fourth Amendment down for the count.

  58. Double blind does not mean “neither the dog or the handler know where it is”! That is single blind. Double blind means that NO ONE in the test environment knows where it is. The person who hid the target odor is not present during the test for ANYONE (dog, handler or evaluator) to take cues off of. OMG…..I cannot believe the author even wrote that, that is BASIC SCIENCE people!

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