WHO LET THE DOGS IN

The Supreme Court Did, By Declaring A Sniff Is Not A Search

Police used to need probable cause to search the trunk of your car. Now all
they need is a dog.

Here's how it works: An officer pulls you over because you're driving a bit
too fast or a bit too slow, or because you have a broken tail light, or
because you're not wearing your seat belt, or because you forgot to put
your new registration sticker on your license plate. He is soon joined by
another officer with a drug-sniffing dog, which "alerts" when it gets near
your trunk. Or so the officers say. You have no idea what this particular
dog does when it smells contraband, and the dog isn't talking. But now the
police can look in your trunk. A minor traffic stop is thus transformed
into an embarrassing, invasive, intimidating, time-consuming search for
illegal drugs. The Supreme Court recently gave its approval to this sort of
stop-and-switch in a case involving a man named Roy Caballes, who was
pulled over on Interstate 80 by an Illinois state trooper for driving six
miles an hour faster than the speed limit. Caballes happened to have 282
pounds of marijuana in his trunk, but even those of us who are not pot
smugglers should worry that the Court saw nothing wrong with the
circumstances that led to his arrest. Trooper Daniel Gillette testified
that he became suspicious because Caballes was well-dressed and seemed
nervous, the car smelled of air freshener, and the only visible belongings
were two sport coats, even though Caballes said he was moving from Las
Vegas to Chicago. Gillette asked for permission to search the car, which
Caballes, not surprisingly, declined to grant. Gillette got permission from
a dog instead. Trooper Craig Graham, upon hearing Gillette call in the
stop, decided to swing by with a drug-sniffing canine, conveniently
arriving just as Gillette was writing Caballes a warning ticket. For
Caballes, one sniff by that dog was the difference between a warning and a
12-year prison sentence.

But according to the Supreme Court, the sniff was not a search. "A dog
sniff conducted during a concededly lawful traffic stop that reveals no
information other than the location of a substance that no individual has
any right to possess does not violate the Fourth Amendment," wrote Justice
John Paul Stevens for the six-member majority.

The decision built on a 1983 ruling that said "subjecting luggage to a
'sniff test' by a well-trained narcotics detection dog does not constitute
a 'search' within the meaning of the Fourth Amendment" because it
"discloses only the presence or absence of narcotics, a contraband item."
In other words, the only privacy interest it violates is a drug smuggler's
desire to conceal his stash, which is not protected by the Fourth
Amendment's prohibition of "unreasonable searches and seizures."

This argument is based on a myth. As Justice David Souter, one of two
dissenters in Illinois v. Caballes, pointed out, "the infallible dog...is a
creature of legal fiction."

Souter cited examples from court cases of dogs with error rates of up to 38
percent. "Dogs in artificial testing situations return false positives
anywhere from 12.5 to 60% of the time," he added.

In short, it is simply not true that a drug-sniffing dog "discloses only
the presence or absence of narcotics." Even leaving aside the possibility
of deliberate deception or honest error by police officers eager to turn a
hunch into probable cause, the dogs themselves make mistakes, responding to
subconscious cues from their handlers, alerting to food or residual odors
of drugs that are no longer present, mistaking items associated with drugs
for the drugs themselves, and so on.

Whatever the cause of a false alert, it exposes innocent people to the
inconvenience and humiliation of drug searches they have done nothing to
justify. Now that the Court has said police need no special reason to bring
in the dogs, provided they are otherwise complying with the law, such
searches will become more common, and they need not be limited to routine
traffic stops. Justice Ruth Bader Ginsburg, the other dissenter in this
case, warned that the Court's analysis "clears the way for suspicionless,
dog-accompanied drug sweeps of parked cars along sidewalks and in parking
lots," even of cars stopped at traffic lights. If you happen to be caught
in such a dragnet, just keep telling yourself it's not really a search.