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The Fourth Amendment, Science, And The War On (Some People Who Use Some) Drugs

[ 83 ] February 20, 2013 |

Two Fourth Amendment cases yesterday, with one dubious search upheld and another thrown out.

As I say at the link, the cases also indicate a couple of important things about the current Court. First of all, as I assume is now obvious to everyone with the possible exceptions of Ann Althouse and David Nieporent, Alito is the most consistent reactionary on the Supreme Court. (“Scalito” was indeed a label that was misleading and unfair — to Scalia.) And, second, as the unanimous decision to uphold a search in which the probable cause was established by a drug-sniffing dog that managed to produce two false positives out of two searches indicates, this Court lacks a single civil libertarian in the Douglas mold (and Breyer, one of the Democratic appointees, is sometimes to the right of Scalia on 4th Amendment issues.)

UPDATE: An excellent piece from Julian Sanchez explaining why relying on certification is grossly inadequate.

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  1. Oscar Goldman says:

    Breyer’s crim pro jurisprudence is shameful.

  2. Sebastian H says:

    I just don’t understand the Court’s statistical point. How can it be that the number of false positives is anything other than the most important thing for a probable cause analysis? How can Kagan write such ridiculous garbage as the idea that failure to find drug evidence after an alert might not be a false positive just because a dog ‘might’ be alerting drug residue. It might be alerting that the dog smelled cheese, or that it wanted praise from its master, or that astrology is real for all we can tell. But if it regularly doesn’t find evidence of drugs, that is the most important thing in a “does this information lead to probable cause to believe that evidence will be found” test. Right? Instead the court comes to an only a lawyer could love totality of circumstances style test that is still complete crap on any normal inspection. Ok, dog sniffs are just a part of probable cause analysis. That’s great. But if you look at times when they are present in the totality analysis, and discover that they don’t seem too accurate (or if you believe the police, they are so darn accurate that they alert vast numbers of times when we can’t find anything) then the dog sniff component appears highly unreliable for the purpose of subjecting citizens to searches.

    How can evidence about whether they were trained at a certified school be more important than that? I don’t care if an architect was trained at a certified school if I find out his buildings fall down all the time.

    • Scott Lemieux says:

      Agreed 100%, especially when you consider that institutions aren’t going to get state contracts by saying that dogs can’t reliably tell whether there are drugs in a car or not. Kagan’s argument is essentially “since the statistics compiled in the field aren’t perfect, we needn’t bother with real evidence at all.”

      • rea says:

        The opinion explains:

        The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant . . .(“[T]he defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate”). And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under un- familiar conditions.

        All that strikes me as “real evidence.”

      • L2P says:

        Also, it’s not like the dog’s dead.

        I think it would be an abuse of discretion for a judge to prevent the defense attorney from conducting her OWN testing of the dog. What possible argument is their for treating dogs different from any other police tool or evidence in a case?

        You’re not arguing with the Supreme Court here. They would TOTALLY AGREE that all of the problems with dog alerts are relevant and should be considered by the Judge. You disagree with the TRIAL COURT (who held that the record supported probable cause) and with the tactics of the DEFENSE ATTORNEY (who didn’t put in any evidence except, apparently, the results of the two alerts on the Defendant).

        Is the Court really supposed to rule, based on NO evidence in the case before it, that a well-trained dog with an expert handler and a history of successful alerts, cannot provide probable cause because the alerts in that case ended up to be wrong?

        Unless you want a blanket rule that dog alerts can never support probably cause (and this case certainly doesn’t provide the record for that), this is what the constitution requires.

  3. L2P says:

    I’m missing the controversy in Harris.

    It’s an evidentiary question. The trial court found, on the evidence, that the dog was reliable enough to support probable cause. The Florida court essentially held that the trial court needed to review ALL of the dog’s performance history to find that the dog was reliable enough to support probable cause, and placed the burden of production on the prosecutor.

    The key to the holding is this:

    In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reason- ably prudent person think that a search would reveal con- traband or evidence of a crime. A sniff is up to snuff when it meets that test.

    The Court isn’t saying that field results are irrelevant, or that positive dog alert always provides probable cause. The Court is saying that merely providing evidence of some false positives in the field fails to overcome the State’s evidence that the dog is reliable based on certification and training. It’s not the State’s burden to show, in every case, that the dog was reliable based on performance history.

    And that would be craziness. It shouldn’t be the State’s burden to show more than that there is reason to think the dog is reliable, which the state DID here. The rebuttal is the defendant’s burden, and we can disagree with the Court that the defendant met that burden, it’s certainly not unreasonable for the Court to have found probably cause.

    Because what, after all, is the evidence here? We have a trained and certified dog, we have a history of justified alerts, and we have evidence of two (or maybe one, their may have been scents of meth) false positives. Did the defendant introduce any evidence of the many problems with dog alerts? No. Did the defendant use an expert to show that this dog, or any dog, shouldn’t be trusted? No. Did the defendant introduce records of calls for service for the dog’s trainer, that would at least get an idea of TOTAL searches and from which you could rough out something? Not even close.

    So really all the Court is doing is putting the evidentiary burden where it belongs, on the defendant.

    • mpowell says:

      Would it be sufficient for the prosecution to show that at the time the test was used, the office had reason to trust the dog’s performance based on pedigree? If it later turns out the dog is unreliable, does that overturn probable cause? That wouldn’t make sense to me, since probable cause is not a gotcha intended to let the guilty go free, it is meant to protect people from searches that, in the moment, are unjustified.

      In the bigger picture, dog sniff tests are problematic because it is easy for police to perceive more positive sniff tests than actually occur and to continue using dogs that show signs of unreliability (and it will likely be extremely difficult for defense to show this after the fact). But our courts aren’t especially interested in dealing with larger patterns of police misconduct anymore, and these kinds of problem are probably not going garner any significant interest.

      • Hugo Torbet says:

        The reality is that if a dog search turns up dope, the courts will always find a way to sustain the search. Honesty has nothing to do with it. On the other hand, very few people will file lawsuits over searches which turn up nothing. As a result, these issues will never be fully litigated.

        • L2P says:

          That’s not true. The people that sue are the people that are arrested wrongly based on a bad alert. It’s already happened – people in airports that are delayed, people who get they’re houses smashed for nothing.

          The problem is that dog alerts are arbitrary. The handler has more to do with the alerts than the dog. Because the handlers pretty much know who the criminal is, they can get a lot of good alerts compared to bad ones. It looks objective, but really it’s just confirming the biases of the handler.

          Really, the problem isn’t that the dogs don’t provide evidence for probable cause. How different are the dogs than most probable cause evidence? I’ve seen stuff like “I smelled the odor of marijuana coming from the apartment,” and that flies. I’ve seen “The house had the look of a drug dealer’s hangout because of (very subjective things” and that flies. It’s really, really hard NOT to get probable cause.

          No, the problem is that I, personally, will NEVER GET AN ALERT because I don’t look like a criminal in the eyes of the police. Other people, who happen to look like criminals (read poor and brown), will ALWAYS GET AN ALERT. That’s a very arbitrary and unfair system.

          • mpowell says:

            No, it’s not unfair that you never get an alert, because very few criminals look like you. That would just be bad policing. It is unfair to the people who aren’t criminals but who look a lot like criminals that they run into problems. But how do you really solve this problem? Even if you get past racial profiling (which is still a huge problem), how can an effective police force not end up suspecting/investigating a lot of innocent poor people? I don’t think you can. I think the best you can do is have a system where suspiscion/investigation does not lead to mistreatment of the suspect or unfair prejudice as to the final outcome. And our system is definitely nowhere near that level of professionalism.

            • L2P says:

              I think I’m being unclear.

              If “looking like a criminal” was reason enough for probable cause, I’d agree with you. But police can’t search the homes of people who “look like criminals.” It’s unfair that the subjective impressions of the police can, through the magic of having a dog, become probable cause.

              It’s one thing to “suspect” or “target” the poor, or people that look like hippies, or whatever else “good policing” requires. It’s another to have probable cause to search someone’s home because they look poor.

      • L2P says:

        Well, probably not. The Court held that the judge needs to hold a hearing and review the evidence relating to that search, and based on that evidence to make a reasonable decision for that case. The problem with the Florida decision was that it was putting in “de facto” rules and presumptions that interfere with this determination.

        If the popo just had evidence that (1) a dog alerted and (2) the dog was related to dogs that are trustworthy, that doesn’t seem to meet the Court’s standard that the judge have evidence to reasonably support the probable cause determination. That would be just as arbitrary as throwing out an alert because the dog had wasn’t related to trustworthy dogs.

        But that’s the point. These are evidentiary questions. Defense attorneys need to PROVE that the police can’t rely on a trained dog with some record of success.

        (If a dog later turned out to be unreliable, a defendant could file a habeas corpus. I don’t know enough about the standards of review for that.)

        I’m not a big fan of dog alerts. If I was the judge I’d be VERY skeptical. But I don’t see how they’re de jure insufficient to support probable cause.

    • cpinva says:

      this arguably turns the normal standard on its head:

      “It’s not the State’s burden to show, in every case, that the dog was reliable based on performance history.”

      in fact, that is exactly the state’s burden, since the state is asserting the reliability of the dog in the first place. absent that, and we have no case. once the state has met that minimal burden, it is then incumbent on the defense, if it wishes to challenge the state’s asserted/proved reliability, with evidence of its own, up to and including conducting its own tests, by an independent, certified handler. the results, if the state’s assertions are correct, should be borne out by the independent tests, conducted by another, independent, qualified party. if they are not, the credibility of the state’s evidence, such that was relied on by the sniffing dog, should almost certainly be barred from the court.

      it’s reall the only logical, independent method for quantifying the quality of the dog’s performance.

  4. PWinn says:

    I can easily see how dogs can come up with false positives. They have an incredible sense of smell. If a person had, say, coke in his pocket yesterday and wore the same pants the next day the dog would certainly pick that up. Just like I can tell when my kid has been with friends that smoke. I’d like to see some in-the-field data on this; very bad call by this court.

    • David Hunt says:

      I’ve also read arguments that the dogs are very sensitive to the desires of their handlers and are reacting to unconscious cues that the handler thinks some suspects are suspicious.

      • L.M. says:

        This, exactly. The dog is often just laundering an officer’s own hunches. A mere hunch is insufficient to give rise even to reasonable suspicion (hence the requirement that suspicion be objectively “reasonable”), much less probable cause. But the presence of a dog allows an officer (consciously or unconsciously) to turn a mere hunch into something that looks like an additional, external, objective piece of evidence supporting a search, even if the dog is just reacting to its reading of its handler’s gut instincts (which the handler him/herself could not act on).

        • Richard says:

          But if thats the case, the solution is to have expert testimony contending that dog search results are inherently inaccurate or unreliable. The SCOTUS opinion expressly said that expert opinion regarding dog searches would be allowed to rebut a showing of probable cause based on a dog search. The solution is not the rules set forth by the Florida Supreme Court

          • PWinn says:

            Correct. Would you say that’s really the crux of the SCOTUS opinion? There has to be some in-the-field data that shows some sort of reliability one way or another. If not then how can anyone use the dogs as evidence?

  5. Glenn says:

    I do think it’s easy to overstate the holding in Harris. The actual holding is that the Florida Supreme Court’s determination that field performance records were a requirement to establish probable cause is incorrect, and that the test is totality of circumstances. I don’t think that’s such a crazy, anti-libertarian holding.

    I do think that the Court should have stopped there and remanded, however.

  6. Joe says:

    Alito had a solo dissent today in a double jeopardy case, but given Thomas joined Breyer and Alito in dissent, not sure the second case cited here is a good example for the principle.

    Breyer is more conservative in various cases but to call him ‘shameful’ is a bit much. On some issues, he is less so — including the death penalty and some 4A cases, such as no knock warrants.

    I also don’t think the dog case is that “doubtful” but the ruling did not just put the evidence burden “on the defendant.” It said both sides are to put on the case and the judge will determine reasonableness. The use of dogs at all wasn’t the issue here. It was the rather strict test of reasonableness the state court set forth. Realistically, it was a loser case for the defense and the oral arguments kind of made that clear.

    • Scott Lemieux says:

      Alito had a solo dissent today in a double jeopardy case, but given Thomas joined Breyer and Alito in dissent, not sure the second case cited here is a good example for the principle.

      I don’t see how any of this makes it less appropriate as an example of Alito being more reactionary than Scalia on civil liberties cases, but anyway.

      • Joe says:

        There were two cases — one was unanimous, one had three dissenters (Breyer, Thomas, Alito). How does either one make Alito specifically “the most consistent reactionary” (not “more reactionary than Scalia even) is unclear to me.

    • Oscar Goldman says:

      I think “shameful” is apt, given his (generally good) positions elsewhere and the fact he is a Clinton appointee along with Ginsburg.

      But your point is well-taken, especially in light of his decision today in Henderson v. U.S., which is a refreshing reaffirmation that appellate courts have a duty to “correct” serious legal errors in criminal trials–preserved or not. I cannot speak for jurisdictions outside of Colorado, but there is a growing trend for prosecutors to over-rely on the “this issue isn’t preserved for appeal” argument and a growing trend for appellate courts to agree and deny relief on those grounds.

  7. rea says:

    How can it be that the number of false positives is anything other than the most important thing for a probable cause analysis?

    I’ve only done a quick read of the opinion, but it looks to me like what she was saying was that the number of reported false positives from the field wouldn’t be very enlightening, since the police don’t necessaily document encounters with citizens that don’t lead to an arrest. False negatives in the field, of course, generally don’t get reported at all, or even noticed. This is why she regards the dog’s results in training as more probative. Note that this reasoning means that the defendant in this particular case loses, but isn’t necessarily pro-prosecution as applied to other cases.

    Also the two false positives we know about involving this dog were (a) a subsequent search of the same defendant, and (b) the very search at issue. Thsoe can’t enter into a determination of whether the officer ahd probable cause for a serch, because they were not something the officer couldd or should have known about at th e time of the search.

    Beyond that, the Florida Supreme Court seems to need a course in remedial federalism. They attempted to craft a prophylactic, bright-line rule about dog searches in a case decided under the federal constitution. They lack any authority to do that–and that explains why the result in that caase was unanimous.

    • L2P says:

      Maybe I need a remedial federalism course! I thought state courts interpreted and applied the Federal constitution all the time. It’s almost required in California, since criminal constitutional procedure can’t exceed the Federal constitution’s.

  8. Jameson Quinn says:

    If the dog could talk, and said “I can smell that this guy is a meth cook, but I don’t think that there are any drugs in the car”, would that be probable cause for a search? I don’t think it would be a horrible thing if it were, and in that case the “false” positives issue would clearly cut against the defendant. But I also think it wouldn’t actually be probable cause, so I think they ruled this one wrong.

  9. Sebastian H says:

    The reason Florida did that is because by the Florida constitution, their 4th amendment is exactly coterminous with federal law.

    Rea, I don’t understand your distinction. The defendant tried to require that the state produce evidence of the dog’s past history, the state refused to produce it. How can that be anything other than pro prosecution in future cases? The only people who even could be required to produce such documents would be the police. If the Florida court can’t require such records be turned over (and the underlying state judge doesn’t want to ask) how can a defendant win? I guess they might get lucky with a dramatically pro defendant judge, but what about the enormous number of people being falsely stopped and searched? (And we shouldn’t pretend that a drug search of a car after an alert is going to be a de minimus search).

    And Kagan goes further. She buys into the bullshit police false positive game. If it really is true that dogs are so sensitive that they detect thousands of instances of ‘residue’ that never lead to evidence, that doesn’t help. The psychic friends network could make similar claims. Their “predictions” shouldn’t form the basis of probable cause either.

    As for the false positives in the case at hand, if two out of two of the ONLY cases that the state will let us see are false positives, there isn’t a good reason to elevate the ‘certified training’ above the statistical evidence about how this dog operates in the field.

    • rea says:

      Rea, I don’t understand your distinction. The defendant tried to require that the state produce evidence of the dog’s past history, the state refused to produce it. How can that be anything other than pro prosecution in future cases?

      Imagine a dog with a perfect record in the field. Should that dog’s results be immune from question? And do you want to set up a system in which you give the police a huge incentive not to keep records of false positives? Since false positives don’t end up in court, how could you tell if the false positives were not being recorded?

    • L2P says:

      Beyond Rea’s good points, we don’t HAVE any statistical evidence of how the dog performed. We have two instances out of ???? alerts.

      The Court’s just saying that the constitution doesn’t hold that field results are more important than other evidence, and that the constitution doesn’t require the state to use field results to show reliability.

      I believe EVERYTHING you say about the unreliability of dog alerts. NONE OF THAT was in the record. Defense attorneys need to prove their case; that’s all the Court held.

      • dl says:

        And why don’t we have evidence of the dogs’ field performance? Because police are not mandated to keep these records. The FL SC would have required introduction of this evidence–but the SCOTUS decision leaves police free to not collect this data. In practice, then, the defense can never know the relevant information, which leaves “certification” basically unrebuttable.

        • mpowell says:

          This is why having an activist court is a real thing and also necessary if you really care about justice. It’s totally reasonable to say, hey, if the state doesn’t have records on field performance but they do have training certification that’s a perfectly good defense of probable cause. And it is. But think about the incentives! The exclusionary principle doesn’t make any sense on a single case basis either. If the state can intentionally avoid collecting field data because they know it will blow up future cases, that’s what they’re going to do. So you have to issue the ruling that basically assumes the police will work to undermine the probable cause standard and require the collection of field data to validate performance. I don’t agree at all with the conservative critique of ‘activist’ judges, but I think the term actually has meaning when applied to a court willing to expand the scope of their power beyond the courtroom to demand the principles in the constitution actually be upheld.

        • L2P says:

          So not true.

          First, we don’t know that there aren’t records. The defense just asked if the handler kept records, and he didn’t. Why would he? They might very well be kept by the department.

          And that’s just the obvious places to look. There’s an incident report of every time that handler had been on a call, which presumably (let’s be real hear, definitely) means the dog has been on a call. The defense could have gotten all of those reports. Those reports would form the basis of a complete history of the dog’s performance, especially if combined with arrest reports.

          But that takes effort. That requires the defense to take the time to go through records and figure stuff out. What this defense attorney wanted was for the handle to have taken the extra step of keeping HIS OWN records.

          I don’t think you should make constitutional policy reflect problems that can be solved with procedure.

    • Glenn says:

      FYI, according to the FL Supreme Court opinion, defense counsel claimed a discovery violation at the trial level out of the failure to produce field records (which was denied), but counsel did not press the issue on appeal.

  10. dl says:

    This is when Stevens would be nice to have on the Court still.

    Of course, one major problem is that false positives are very unlikely to make it to court. This case–where they found something the dog could not have sniffed–is a rare exception. In general there will be no remedy for those subject to no-PC searches. And because those cases do not make it to court, absent a record-keeping/producing requirement on in-the-field performance, this dubious certification procedure (with all the attendant perverse incentives) carries the day.

    • rea says:

      This case–where they found something the dog could not have sniffed

      That’s not really accurate. The dog was trained to sense meth. There was no meth in the vehicle–just the ingredients for making meth. The dog’s alert may well have been prompted by the residual odor of meth, which was no longer in the vehicle. Is that really a false positive?

      • dl says:

        Anything is possible, I guess. But if courts are willing to accept any number of false positives on an unverifiable “residue theory”, that is problematic.

        • Richard says:

          But I dont think the court said that here. It said that proof of certification and good performance during the training process is not necessarily negated by two false positives that occurred later. As I say below, the opinion specifically leaves open the possibility that reliance on a dog can be unreasonable if there is proof that the dog routinely produced false positives in the field

    • Joe says:

      You mean like in Illinois v. Caballes, where he wrote the majority opinion upholding use of dogs, while Souter and Ginsburg dissented? Or Kyollo v. U.S., where he dissented and would have allowed the use of an image device to determine evidence of growing pot at home?

  11. The case involved a search of an automobile for drugs in which probable cause was established by a drug-sniffing dog. For such searches to be reasonable requires that dogs actually have a reliable record of distinguishing between automobiles that contain drugs and those that do not—if the sniffing produces essentially random results, they cannot be used as probable cause for a search. The facts of this case provided good reason to believe that the dog used in this case was not reliably able to detect drugs.

    But the “facts of this case,” known to the police officers only after the search was conducted, cannot be the “record” that they were using to decide if the dog was reliable.

    If the police get a warrant to search an apartment based on the testimony of a witness, conduct the search, find a stolen gun, but also discover in the course of the search that the witness was totally full of it, and there aren’t actually any smuggled panda hides in the apartment, would the courts throw out the warrant and the discovery of the gun?

    • rea says:

      Quite right. “Probable cause” is not something you can determine in hindsight. If the police can’t say, “We found drugs–therefore we must have had probable cause,” the defense can’t say, “They didn’t find drugs–therefore they couldn’t have had probable cause.”

    • dl says:

      Isn’t the analogy: get a warrant for panda hides, not guns–based on info from an informant who (it is known) sometimes makes stuff up. Then find guns, no panda hides. The guns should be, and probably are, inadmissible–the warrant is defective, and the officer is acting in bad faith (knowing the unreliability of the informant).

      • rea says:

        Maybe–but bear in mind that the officer had to demonstrate the reliability of the informant to the magistrate in order to obtain a warrant, so you are postulating a scenario in which the officer lied to the magistrate in the affidavit. That’s certainly bad faith–but most real world cases are not so clear.

      • the warrant is defective, and the officer is acting in bad faith (knowing the unreliability of the informant).

        So a cop seeing a drug-sniffing dog hit positive is like getting a warrant based on info that the cop knows is probably a lie?

        That’s a bit of a leap. You think the cops here considered the dog “unreliable,” but went ahead anyway?

      • chris says:

        The warrant isn’t defective in that example, the gun is just outside its scope. I agree that it should therefore be inadmissible (the alternative is that every warrant is actually a general warrant, which is clearly contrary to the intent of the Amendment).

        Also, I second the concern that the dog is basically running on the Clever Hans effect, sensing that its handler thinks this person is suspicious and alerting on that basis. Hunch laundering in canine form.

    • Scott Lemieux says:

      To be clear, my point is not that because the searches didn’t find any of the drugs the god was trained to find doesn’t mean in itself that probable cause should be retroactively removed. What it does mean is that there’s good reason to believe that the training and certification program isn’t exactly rigorous, and the state should have to compile and show the courts evidence of how the dogs have performed in the field.

      • Richard says:

        I dont see how proof of reliability in the field is required as a matter of constitutional law (which is what the Florida Supreme Court held). Seems to me that the defense just didn’t prove that reliance on the dog in this case was unreasonable, given the limited number of false positives, and therefore no reason to throw the results of the search out. I don’t see anything in the opinion which would prevent defense counsel in another case from showing that a dog always failed in the field on many occasions and that reliance on him was therefore unreasonable.

      • Glenn says:

        It is worth noting that the defense attorney specifically chose not to challenge the adequacy of the certification/training program. How much of a challenge she could have mounted is, of course, a good question, but that failure was critical to the Court’s determination.

        • Richard says:

          Correct. There was absolutely no evidence offered to show that the training and certification program was not rigorous and copious evidence to show that, at least in terms of hours put in, the training was substantial and that this particular dog’s performance was above average.

      • What it does mean is that there’s good reason to believe that the training and certification program isn’t exactly rigorous, and the state should have to compile and show the courts evidence of how the dogs have performed in the field.

        Like the maintenance records of breathalyzers, or radar guns.

        Got it.

      • the state should have to compile and show the courts evidence of how the dogs have performed in the field.

        For what? Where? When?

        In the examples I gave above, breathalyzers and radar guns, the defense can raise the unreliability of the instrument during trial. How would that work here?

      • L2P says:

        If the defense ahead put on any evidence of the worthlessness of the certification program, maybe the court would agree with you.

        But the defense didn’t. So absent any evidence, why should we discount the certification program?

      • William Berry says:

        ” . . . The god was trained to find . . .”

        Reminds me of the old joke about the insomniac, dyslexic agnostic who lay awake nights wondering if there really was a Dog.

  12. Crackity Jones says:

    Bring back Marshall. Zombie Justice Marshall. He’d start eating Thomas’s brains but…ok that joke fell apart.

  13. divadab says:

    What I find interesting about both this ruling and the thread, is that they argue technical points rather than address the real issue: Prohibition, in its continuing incarnation as “The War on (Some) Drugs”.

    Just as prohibition did not work for alcohol, creating organized criminals operating in a created black market, and making criminals of ordinary people, it does not work for narcotics.

    And prohibition has reduced neither the availability nor the level of usage of narcotics – its purported objectives.

    Ending prohibition in favor of a sensible regulated legal market for drugs will end a costly policy disaster.

    • Richard says:

      We are never going to legalize meth. And its not the court’s job to opine whether drug laws are good or bad, work or dont work. Thats up to the legislature.

      Plus the claim that prohibition didn’t work for alcohol depends on how you define “didn’t work”. Alcohol consumption went down by at least 30% during prohibition (according to almost all serious studies that have been done). Sure, it created more problems than it solved (and having the option to become inebriated is, IMHO, a social good), but it “worked” if the goal was to reduce alcohol consumption.

      I dont think there is any social good in people using meth so, although I would legalize marijuana and certain other substances, I would have real problems in creating a regulated legal market for meth.

      • mpowell says:

        Meth is probably popular primarily due to two reasons: 1) lack of better alternatives and 2) easy to make illegaly. You could probably come up with a drug control regime that by legalizing an appropriate set of drugs, dramatically reduced incidence of meth use through organic demand reduction.

        • Richard says:

          Not so sure that the effect produced by meth – overstimulation of the brain’s neurons initially producing euphoria but then depression and paranoia – is a worthwhile goal so that the government should find alternative ways of achieving it

          • That is not the only effect produced by the interstate market in speed.

            Tweaking – heh – the law to take the other consequences into account doesn’t require us to have a positive opinion about meth use.

            • Richard says:

              I dont disagree. But it would be very hard to justify, and impossible to authorize, production of a legal and regulated meth alternative which produces the same effects as meth – desired by many people but all bad as far as I can see – just to eliminate the detrimental effects of the market in meth.

              • I’m pretty sure mpowell was assuming that the private sector can, and has, come up with less-bad alternatives.

                • Richard says:

                  I’m certainly no expert on drugs like this but I dont know if there are any alternatives which produce the same effect as meth – the rush, the euphoria, the days of staying awake. In my day, you could take dexedrine (Black Beauties were the ones I remember) but there was no rush. And from what I understand (not that much, I concede), the rush is a great part of the allure.

                • One of the consequences of criminalizing drugs is to drive up the potency. Bootleggers didn’t bother making wine; they produced a product with the biggest bang they could fit in one car trunk. Users then come to expect this type of experience when using the drug.

                  The Indians way up in the Andes use cocaine by making a tea from its leaves.

                • Richard says:

                  But once users come to expect this type of experience – in this case the rush and the days of sleeplessness – they aren’t going to accept a drug which doesn’t have the potency and fireworks they have come to know and love.

                  But its sort of a moot point – no one is talking about legalizing meth or coming up with a more acceptable substitute for the tweaking population.

                • For the users who came of age during the period of prohibition, that’s probably largely true. A change in habits would probably be generational. Drug use trends come and go. As particular drugs go in and out of fashion, their usage patterns among devotees change. Hits of LSD are significantly less potent than they were in the 1960s.

                • Richard says:

                  I didn’t know that about LSD. Marijuana, on the other hand, is much more potent than it was when I was a college student

                • William Berry says:

                  @JfL: “Hits of LSD are significantly less potent . . .”

                  As a 61 yr. old former DFH, I can attest to this. Typical hit nowadays might be 50-100 micrograms. Back in the sixties, a guy might do 500 mikes or more in a single hit.

          • Anonymous says:

            Richard, that is not governments place to decide. Control over ones own body and mind, including what one chooses to ingest, is THE fundamental human right. It is no more appropriate for the courts to tell individuals what drugs they take than it is for them to tell them what religion to follow.

        • Glenn says:

          and for most people, incredibly, almost instantly addictive.

          • William Berry says:

            Respectfully, I think you might be confusing meth with crack, which is, in fact, rapidly addicting, causing intense craving after just a few hits. On the other hand, moderate, fairly regular, but non-addicted, users of meth are not uncommon.

            Also a distinction between snorting and smoking. Snorting meth is more casual and less intense. A lot more of the drug is delivered faster by smoking it.

      • David Nieporent says:

        Plus the claim that prohibition didn’t work for alcohol depends on how you define “didn’t work”. … Sure, it created more problems than it solved

        See, that sort of sounds like the definition of “didn’t work.”

        • L2P says:

          Do cars “work” under that theory? After all, they only solve one problem. -transportation. But they cause thousands of deaths, ruin the environment, destroy urban environments, and a scad of other bad things.

          I think this opposite. Things “work” when they solve the problem they were intended to,solve. Prohibition was intended to lower alcohol consumption. It did.

    • Ending prohibition in favor of a sensible regulated legal market for drugs will end a costly policy disaster.

      Let’s call that Plan A.

      On the off chance they don’t have Plan A nailed down in short order, I think we need to also pursue Plan B, which is the ongoing exercise by lawyers and judges to define the protections that the Bill of Rights provides in criminal court.

  14. David Nieporent says:

    Of course, I never said that Alito wasn’t conservative; I said that your argument threw out lots of data to make him appear more conservative than he was.

    And the “mold” that’s lacking is not civil libertarianism, but makingshitupism. If the Florida Supreme Court had simply held that this particular dog was not reliable enough to create probable cause in this case, the Supreme Court wouldn’t have even heard the case, let alone overturned it 9-0. Instead, the Florida Supreme Court decided to create a detailed checklist that the police were obligated to fulfill in each dog sniff case to satisfy the Fourth Amendment, flouting longstanding doctrine about probable cause being based on the totality of the circumstances. (Note that the trial attorney did a poor job, failing to raise many issues regarding the dog’s training that might have spoken to its reliability.) It might have attracted Douglas or Marshall, yes — not because either one of them was more civil libertarian than Kagan or Sotomayor or Ginsburg, but because those guys didn’t really care about text or precedent or doctrine or anything.

    • David Nieporent says:

      For the record, I don’t think much of Kagan’s “the dog is well trained, so we can presume it’s reliable” argument, either. But that doesn’t justify the Florida Supreme Court’s approach.

  15. Michael says:

    Serious question, not being flippant, and not sure if I am misunderstanding the OP: is it really the “civil libertarian” position that dog sniffs can per se never be sufficient, alone, to create probable cause for a search?

    • Sebastian H says:

      My position is that dog sniff evidence is not scientifically reliable as currently practiced. If the police think it is important to keep using them, the state should be required to show that new practices have been implemented, and keep records sufficient to establish the reliability of the new methods.

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