The Supreme Court heard oral argument in two cases out of Florida involving drug-sniffing dogs last week and Radley Balko, the single best criminal justice reporter in the country, has an article at the Huffington Post about those cases, the precedents and how the outcome could further erode the 4th amendment. He points out something that may be far more important than it first appears:
One theme we continue to see in cases like these is that the Supreme Court lineup is woefully lacking experience in the actual practice of criminal law. Of the nine justices, only Sonia Sotomayor and Samuel Alito have any such experience, both as prosecutors. The court hasn’t had a justice with any real criminal defense experience since Thurgood Marshall retired in 1992. That’s worth restating: There hasn’t been a single voice on the Supreme Court with any real criminal defense experience in more than 20 years.
This is a remarkable and significant experience gap that isn’t often discussed, but has a profound effect on the context in which the Court attempts to maintain the delicate balance between liberty and security. It’s one thing to opine on these issues in law journals and lectures. It’s quite another to have real knowledge of how the law plays out in the real world. The gap was on full display in this week’s drug dog cases.
He also notes, as I have before, that the court has consistently expanded the uses of drug sniffing dogs and the erosion of the 4th Amendment by ruling, in every case so far, that such a search is not, for constitutional purposes, a search. In 1983 the court ruled that a dog sniffing for drugs in your luggage at the airport was not a search. Then in 2005, they extended that to searches of your car (despite the fact that such a search requires that they detain you, sometimes for long periods of time).
But the real problem is that while the court says the use of drug-sniffing dogs does not constitute a search and therefore does not require that the police have probable cause to initiate it, they’ve also ruled that if the dog “alerts” to the presence of drugs, that alert does constitute probable cause and thus give the police the right to perform a full search of your car. This might be acceptable if such an alert is real evidence of the presence of drugs, but studies have repeatedly shown that the dogs are wildly inaccurate. Balko describes one study that I’ve discussed several times, but he notes something I didn’t know about it — that the researchers had deliberately set a trap that demonstrated how much the expectation of the dog’s handler influences whether the dog alerts.
That assumption was wrong at the time, and it has been repeatedly proven wrong since. For example, in a survey of drug dogs used by police departments in suburban Chicago published last year, the Chicago Tribune found that when a police dog alerted to the presence of drugs during a traffic stop, a subsequent search turned up narcotics just 44 percent of the time. In stops involving Hispanic drivers, the dogs’ success rate dropped to 27 percent.
This raises some interesting questions: Why are drug dogs more likely to submit an innocent motorist to the indignity of a thorough roadside search if the motorist happens to be Hispanic? Are drug dogs racist? Do they racially profile? Of course not. But their handlers probably do.
Consider another study conducted by Lisa Lit, a neurologist and former dog handler at the University of California-Davis. Lit brought 18 dog/handler teams currently operating in law enforcement agencies to an empty church. Each team conducted eight searches, each lasting about five minutes. If they were accurate, none of the dog/handler teams should have alerted in any of the searches. There were no drugs or explosives anywhere in the church.
But Lit had set some traps. The handlers were told that each search could have as many as three “target scents” — drugs for the drug dog teams, or explosives for the explosive dog teams. The handlers were told that in some cases hot packages were indicated by a piece of red paper. These red paper packages were designed to trick the handlers. Lit also set a trap for the dogs: Some of the packages contained unwrapped sausages.
The results were striking. The dogs falsely alerted in 123 of the 144 total searches. Because some dogs falsely alerted more than once in the same search, the total number of false alerts was 225. The dogs correctly completed the search without an alert just 21 times, for a success rate of 14.5 percent.But here’s the more interesting part: The dogs were about twice as likely to falsely alert at the packages designed to trick their handlers than they were at the packages stuffed with sausages.
The dogs are reacting to the subconscious clues given off by the handlers because they’ve been bred to do exactly that, not to detect drugs. And he points out how at least one justice still doesn’t get that, or understand the issue at all:
Since there are no national drug dog standards, most certification programs for drug dogs are given by police departments themselves. Garre argued that when a police department declares a dog to be “certified,” and worthy of use in the field, the courts should simply take the department’s word for it. The argument basically boiled down to, “just trust us.”
When the attorney for the defendant pointed out the absurdity of that argument, he received an odd but revealing grilling from Justice Antonin Scalia.
“What are the incentives here? Why would a police department want to use an incompetent dog?” Scalia asked. “Is that any more likely than that a medical school would want to certify an incompetent doctor? What incentive is there for a police department?”
Scalia came back to the point later, this time with a heavy dollop of sarcasm. “So let’s get dogs that, you know, smell drugs when there are no drugs. You really think that’s what’s going on here?” he asked. “It seems to me they have every incentive to train the dog well.”
As any defense attorney will tell you, however, there are plenty of incentives for police departments to have improperly trained dogs. A drug dog that’s prone to false alerts gives police more opportunities to search. That means more opportunities to find evidence of crimes not related to drugs — untaxed cigarettes, for example, or counterfeit passports.
What’s more, in many states, asset forfeiture laws allow police to seize property on little more than a drug dog’s alert. If you’re carrying a lot of cash and get pulled over, a police dog alerting to the presence of drugs in your car can be enough for the cop to take your cash, even if a subsequent search doesn’t turn up any actual drugs. In many cases, a drug dog’s alert to the presence of a drug on the cash itself has allowed police to seize the cash, even though nearly all U.S. currency contains traces of drugs. If a drug dog’s alert allows police to seize property and cash that then goes back to the police department, that would certainly be a disincentive to hold your department’s dogs to the highest possible standards.
But it should also be pointed out that there doesn’t need to be any incentive at all. The police officer doesn’t have to be acting consciously to trigger the dog’s alert. All he has to be doing is showing a subconscious expectation that drugs will be found, as the study discussed above shows. The officer likely isn’t even aware they’re doing it, but they’re more likely to focus the dog’s attention where they think he’s most likely to find drugs — which usually means in the cars of dark-skinned people, as study after study of police behavior shows. None of this needs to be overt or conscious.
I’m not encouraged about these two cases. I think it’s likely we’re going to get a 5/4 decision further eroding our civil liberties and weakening the 4th Amendment.