15 November 2004

Dog Searches

As I'm sure everybody out there knows, supreme court decisions have declared that dogs are "sui generis" - this means they are magical entities which do something that if anything else did it would be an unconstitutional search. However, their thaumaturgic abilities allow them to do it constitutionally.

Last week the Supreme Court heard a case where a very, very obvious pretext stop (but of course we won't enquire as to the officer's actual intent) was used to hold a car while a dog was run past it. The dog found drugs which would never have been found otherwise. The question at hand was whether the police must have some sort of reasonable articulable suspicion of the presence of drugs (or whatever else the dog might be trained to find) in order to run the dog past the car.

Of course, "Justice Sandra Day O'Connor insisted that a 'sniff is not a search.' She said that as long as the canine remains outside the vehicle, the officer is not searching the car." [Of course, Ms. O'connor is the Queen of the Pragmatists [see paragraph 4 here] so this is to be expected.]

"Justice Stephen Breyer said that police officers can sniff for contraband during a traffic stop, so why not a dog? It's a fact of life, he said, that 'you might run into people and animals with sharp noses.'" [As sharp as a dog? What, are police forces hiring Animal Man clones now?]

"Justice Antonin Scalia points out dryly that the case law permits the use of indiscriminate dog sniffs at bus depots "and the republic seems to have survived." [Ah, yes. Just like the Republic survived a civil war, slavery, Know Nothings, &cetera. The fact the Republic has survived something isn't exactly a winning argument for its correctness.]

"Justice Anthony Kennedy ask[ed the State Attorney], "Have you any authority for [the proposition that if the search had been more narrow in Kyllo it would have been constitutional], other than Justice Scalia's speculation?" [Hmmm . . . I'm confused. Does this indicate that he disfavors Kyllo or dog searches?]

"Justice Ruth Bader Ginsburg said the very presence of dogs might be considered intimidating. 'Dogs can be frightening, or humiliating," she said. "It seems to me there's some association there with the idea that I have the right to be left alone.'" [The State's attempt to defray this by pointing out that in some cases beagles are used is hilarious. Every time I see a drug dog it's either a german shepherd or a malinois. And goodness knows those dogs are never trained to be aggressive in Schutzhund competitions.]

"We're opening a large vista for dog intrusion," said [Justice] Souter, adding that he was worried about officers canvassing garages and neighborhoods with animals. Police "can take a dog to a front door and ring the bell and see what happens." [Well, they can (and some) already do this without dogs.]

"However, Justice John Paul Stevens said an opening for run-of-the-mill dog searches would also allow the use of mechanical devices to search people." [Again the State attorney sparks hilarity by talking about mechanical dogs being just fine. Not sure how that's supposed to square with Kyllo.]

"As is his custom, Justice Clarence Thomas asked no questions." [However, he did blink three times more than normal; experts are analyzing that to see if they can divine his stance.]

If I had to wager, I'd bet on the Pragmatists winning this one. When the dog is circling your yard, your house, or your car just keep telling yourself, "It's not a search. It's not a search. The Supreme Court says it's not a search . . ."


Brent said...

Just tell the dog to stop sniffing...end of search!

Ken Lammers said...

Or better yet, make sure you have a couple cats to throw in front of the dog. That'd have a pretty good chance of stopping any sniff-search.

Of course, then officers would know which cars were being driven by people who did not want their car searched because the cars would be filled with cats.

Anonymous said...

Just the mention of dogs having thaumaturgic properties made me laugh.

Windypundit said...

I know well-trained dogs are a wonder to behold, but I've always wondered if the accuracy of drug dogs has been properly proven. A human with the mental capabilities of even the smartest dog wouldn't be allowed to give testimony.

Also, if the officer wants to search my car and he says the dog alerted, how can that be disputed? The dog ran here and there and made some noises, and the officer says that particular movement and those noises means they can search my car. I realize searches have a lower standard, but didn't they used to use that kind of evidence to convict witches?

Finally, how can they rule out a "Clever Hans" effect? I'm sure that dog will bark whenever he thinks his master wants him to.

I don't mean to demean the fine work done by these dogs and their trainers, and for all I know the training covers all these issues, but it makes me uncomfortable that a dog can take a way my privacy.