DOGS SNIFF OUT DRUGS ON BART

Civil Libertarians Call Canine-Sweeps 'Unconstitutional'

Random sweeps of BART trains with drug-sniffing dogs led to about a dozen
marijuana citations and an arrest this week, but they also have some civil
libertarians howling mad.

BART Police officers and U.S. Customs Service agents began walking a
drug-trained Labrador retriever through the trains Wednesday. When the dog
smells drugs on a person, she stops, sits down and points with her nose,
alerting officers to make a search.

"It's unconstitutional," said San Francisco attorney John G. Heller, who has
helped the American Civil Liberties Union of Northern California fight cases
of similar random sweeps in public schools. "A dog sniff is a search of a
person under the Fourth Amendment, and you can't do that unless you have
some particularized suspicion a person has contraband on them.

"Above and beyond that, I think it sends a terrible message at a time our
civil liberties are already under siege," he said. "I'm certainly looking
forward to challenging the program on BART if there are passengers
interested in pursuing such a challenge."

BART Police Commander Wade Gomes said passengers haven't lodged "any
complaints at all. In fact, most of them are happy to see the dogs. Some
say, 'You might consider getting some bomb-sniffing dogs.'"

The dog sweeps started Wednesday, nabbing three people with small amounts of
marijuana on East Bay trains at Richmond, Hayward and San Leandro; they were
given citations and released. But John Patrick Mallon, 37, of Concord, was
found on a Pittsburg/Bay Point train at the Walnut Creek station with 13
bags of marijuana. He was booked into Contra Costa County's Martinez
Detention Facility for possession of marijuana for sales.

More marijuana citations were handed out Thursday. Gomes said Friday it's a
good start, although not quite what they'd hoped for.

"We didn't detect any large amounts," he said -- the sweeps didn't catch the
"kilos of cocaine or large amounts of heroin" that federal, state and local
police have said could be moving via BART.

It's tough luck for people caught with small amounts of marijuana, Gomes
added: "A narcotics-sniffing dog can't discriminate among narcotics, he's
going to alert on any kind, ...no matter what the amount is."

The sweeps came as a result of BART Police conversations with other law
enforcement agencies about the new San Francisco International Airport BART
station opening late next year.

Police worry it will be "a new gateway to the Bay Area via rapid transit, so
(drug) couriers could get off planes and go directly to trains," Gomes said.

"It's a noble cause but you've got to do it without violating constitutional
rights," Heller retorted, adding there's a high percentage of "false
positives" in which dogs point officers to people holding no drugs at all.
"So you have this situation arising where passengers might be subjected to a
follow-up search -- a pat-down or other search of their person -- based on
an unreliable dog alert. That adds to the constitutional concern."

Gomes said BART Police will evaluate this week's sweeps and take public
input before deciding whether to do it again. They might work with other law
enforcement agencies, he said, and if the sweeps prove fruitful enough,
perhaps they'll eventually try to get their own drug-sniffing dog.