SNIFFING OUT OUR RIGHTS

Ayman Gheith was one of the three medical students stopped along
Alligator Alley nearly two years ago after a woman thought she
overheard them in a north Georgia Shoney's restaurant talking about a
coming terrorist attack.

The men, American citizens of Middle Eastern descent, were held on the
roadside in shackles for 18 hours while local sheriff's deputies and
the FBI interrogated them and searched their two vehicles. Finding
nothing, Gheith and his colleagues, who deny having that suspicious
conversation, were allowed to proceed. Gheith, now 29, and soon to be
a doctor, is still haunted by the ordeal.

"When the FBI was talking to me, the questioning was very insulting.
It just made me feel like a foreigner, like no matter how long I'm
here I won't be accepted as an American," says Gheith, who was born in
Jordan but has been an American since he turned 18.

During that interminable night, Gheith remembers asking Collier County
Sheriff Don Hunter, "Why did you search my car?" and he was told that
deputies had probable cause to search because the dogs alerted to
explosives.

According to the Collier County Sheriff's Office, "Pit" an
explosives-sniffing dog, alerted to the rear wheel well of both cars.
Field records for 2002 indicate that Pit hadn't been wrong before, but
somehow, conveniently, the dog smelled explosives where there were
none the night of Sept. 13, which meant the vehicles could be legally
searched.

Here is one example of why the U.S. Supreme Court should put limits on
the use of dogs in law enforcement. Dogs provide a ready loophole
around the Fourth Amendment's guarantees against unreasonable
searches. Among other problems, dog alerts can be unreliable and
subject to manipulation by their handlers.

One promise that comes with living in a free society is that law
enforcement will not snoop into our private lives or property without
proof of wrongdoing. The founders wrote the Fourth Amendment to put an
end to general warrants, which were used by British customs agents to
look for cheats by searching property at will.

But the use of dogs is a form of general warrant. Law enforcement uses
them anywhere and anytime, without constraint - particularly at
schools and traffic stops. Because a dog can be trained to sniff out
the odor of drugs or explosives without having to open a car trunk,
locker or package, the high court has suggested the use of dogs does
not constitute a search for the purposes of the Fourth Amendment and
no warrant is needed. Yet, if a dog alerts, police are said to have
probable cause to conduct a physical search against the wishes of the
owner.

Dogs are the X-ray vision of policing.

This might be just dandy to people who don't mind being subject to
regular police scrutiny, but that is not the ideal on which this
country was based. Privacy should mean something, rather than be a
casualty of a dog's heightened smell or technology's latest ability to
see what's coming through walls. In 2001, the high court ruled that
police could not indiscriminately use a thermal imaging device to
measure the amount of heat emanating from a home to see if it was
consistent with the heat needed to grow indoor marijuana. They needed
a warrant to use the device.

But dogs are another story. Even dogs that wrongly alert to the smell
of drugs time and again, are used by police to justify searches. So
what if an innocent person's property is rifled through?

Traffic stops are where the greatest abuses occur. What does a broken
tail-light or driving a couple miles over the speed limit have to do
with drug crime? Nothing. But police use the traffic laws as a
pretext. While a ticket is being written, a drug dog goes to work,
often giving police the opportunity to search the car.

A case before the high court next term questions the constitutionality
of this practice.

In 1998, Roy Caballes was stopped by police in Illinois for going 71
mph when the speed limit was 65. He refused to let the trooper search
his car and soon thereafter another officer and a drug-sniffing dog
appeared. The dog alerted and marijuana was found in Caballes' trunk.
Caballes received 12 years in prison.

The Illinois Supreme Court set aside Caballes' conviction, saying that
without an objective reason to suspect a car is carrying drugs, police
cannot transform a simple traffic stop into a drug investigation by
bringing in a drug-sniffing dog.

While in my view this limit would bring policing back within the
intent of the Constitution, every indication is that the U.S. Supreme
Court took this case to change the result. The nation's police chiefs
urged the court to intervene; and the Rehnquist court has not been
generally friendly to the Fourth Amendment. But in truth, the use of
dogs has rendered our right to be let along virtually meaningless. If
the police want to get into our cars, as Gheith discovered, it's just
a matter of calling out the dogs.