Someone help me out here, how is a sniff not a search? Is it true that a dog's reaction (alert) is probable cause? And if your intention is not to search why is the dog sniffing? Just trying to keep up!

I may not be the best person to answer this, as I'm from Canada so my only knowledge of American law is what I see on Judge Judy, but here goes...

Searches are all about expectations of privacy. I dog sniffing your car does not infringe on your expectation of privacy because the only thing (in theory) that a dog will hit on is contreband, and you can't really expect the government to keep it's nose out of that (yes, pun intended...). The probable cause to "search" doesn't come until the k9 alerts on something.

If I'm way off base, I appologize, I've just worked about 30 hours straight, and now it's time to go to bed...

OK, here goes.

Jeff, a sniff is not a search for several reasons. Before debating them, you must understand that courts (thus lawyers, LEO's, and other legal professionals) use the term 'search' as what we call a "term of art." 'Search' means that the 4th amendment kicks in; and the 4th amendment protects only against searches and seizures which are unreasonable, based on a totality of the circumstances.

A sniff is not a search because the nature of the intrusion is minimal, and very narrowly tailored in a way that does not implicate a privacy interest that society is prepared to recognize. The search (and a seizure) is what happens after the trained dog alerts, giving rise to probable cause on the part of the officer; if at a traffic stop or any other place recognized as an exception to the general warrant requirement, he may search the area indicated, and the "wingspan" around it. If not, then he may secure the area (and the people in it), and use the dog's indication in support of his affidavit to the judge in securing a warrant. As the law stands, an alert by a trained K9 is, standing alone, constitutes PC.

Breathe...

Simon, you had it mostly right; add the fact that your expectation of privacy in a glass box on a public road is substantially diminished, and you'll almost be there. For God's sake, stop watching Judge Judy. Immediately.

Thomas, I'm not quite sure where to start. Your enthusiasm on the subject is to be highly commended, and I respect your expression of your opinion. Basically, I feel ya-no one wants to envision a "papers please" police state, but I think you're hitting mach 3 on the slippery slope here.

1) The "math" argument makes some sense, but I want you to show your work. At the very beginning of the first post on the subject, you quoted Mr. Bird's article (with which I was familiar some time ago, but am strained to recall at the moment), which made two major assumptions: a 98% ratio means 98% hit rate on positives, and 98% pass on drugless objects. That's a big leap, and not supported by the other studies I've seen. A dog that has a 98% hit rate will alert 98% of the time there are drugs present; the inverse is not necessarily true, and the facts derived therefrom are subject to attack based on the fallacy used to produce them. Essentially, numbers can lie.

In addition, your figures implicitly eliminate cross-contamination issues, trace issues, and other things which can be present. I would, however, be interested to see a controlled experiment, vice Mr. Bird's apparently unsupported speculation on the subject. I highly doubt that Mr. Bird procured any dogs for his research. I will punch some keys on the subject, but experience tells me that he used other existing published data, and a hunch tells me he was selective about it. In any event, I am not easily swayed by the idle manipulation of numbers.

My final comment on Mr. Bird's piece, and therefore your citation of it, is that it improperly narrows the examination of the body of caselaw on the subject. In teh excerpt you chose he cites two 9th circuit opinions which trace their rationale to United States v. Place; those cases are not the complete picture of why the sniff was permissible. You simply must dig deeper to understand that the limited nature of the intrusion, whether the person is present or not, is part of what makes the tactic constitutionally correct.

2) Even if your math was right (I'm not saying it isn't, I'm just asking you to break it down Barney-style for us Marines-we don't reed gud), it wouldn't change the fundamental principle on which the Court has balanced its opinion: the sniff only indicates the presence or absence of contraband, the nature of the intrusion is limited, and there is no actionable privacy interest in contraband. That would be true even if the numbers you assert are correct.

3) I believe that the citizens of a constitutional democracy would be elated to know that a dog, acting only in concert with one trained handler, could detect the presence of 50 persons posessing drugs in a crowd. Remember that, based on your analysis, 9,750 people were totally undisturbed by the ordeal...

4) As for explaining this issue to a jury, it probably won't happen. The existence or absence of PC is a question of law, resting soundly within the province of the judge. This is an issue decided at a motions hearing, in the absence of the members. Rightly so, as you correctly noted that there exists the potential that a body of laymen might be swayed by statistical distortion, in either direction.

However, I've stood in front of a jury or two, and made some arguments to judges as well. I know this much: juries are smarter than you think, and the judge is probably two steps ahead of you (after all, he's already read the motion, your brief, opposing counsel's brief, and done his homework, to say nothing of having heard countless other motions just like it). In either case, what they'll see is an officer under oath with carefully maintained records to back up every word coming out of his mouth. And let's face facts: you don't get to be a "defendant" because they didn't find any dope. While the results of the search do not militate to the conclusion that the search was legally correct, it seems to say something about the accuracy of the dog...

Breathe...

Parting shot: you said in your post

"If you are smart you will use your dog only when there is a reasonable suspicion of wrong doing, no matter what the courts have decided is “legal”"

When LEOs start making decisions on their own, regardless of what the courts have said, then our system of justice is truly subverted. LEOs are tasked with enforcing the law, as set forth by the legislature and interpreted by the courts. Failure to utilize a tool which has been blessed by the courts is not responsible stewardship of that responsibility.

Kevin, I didn't even have to stand up from the 'puter to retrieve my copy of The Art of War. Sun Tzu said:

"Nothing is more difficult than the art of manoeuvre. What is difficult about manoeuvre is to make the devious route the most direct and to turn misfortune to advantage."

Discuss.

P.S. I demand an award for the longest post in history. There's gotta be a ribbon for that somewhere.

LT

I have no rewards to give, other than a hearty, "Great Job".

DFrost

 Quote:

Originally posted by 1st Lt Iain Pedden:


2) Even if your math was right (I'm not saying it isn't, I'm just asking you to break it down Barney-style for us Marines-we don't reed gud),

Well, I just sprayed my monitor with my coffee..

Thanks, probably wouldn't have been so funny if it has not been almost entirely true in my experience <img src="/ubbthreads/images/graemlins/smile.gif" alt="" />

Where do I send your ribbon? I will have to get a word count for you and a few other epic posters on the board and get back to you. <img src="/ubbthreads/images/graemlins/tongue.gif" alt="" />

Iain,

Your analysis of the math is right on the money.
As far as showing the numbers, I follow the exact calculations that Baird did, just with various rates of innocence and dog effectiveness. If any one wants it, I will send the excel spread sheet. But again, you did allude to the key factor and that is the dog's false positive rate (correct 98%, incorrect 2%). The ACLU's basically stated that when they looked at what was reported in the real world that only 22% of searches were fruitful, and that tends to back up a 2% false positive rate. BUT, I trust the ACLU about as far as I can throw them, so one has to cautious about their numbers.

But whether or not the false positive rate assumptions are accurate, the one thing the math tells us for sure is that even a VERY small false positive rate can cause a large number of unnecessary searches when you are examining a largely law abiding group of people.


In regards to the political aspect, I don't know if we are heading towards a police state at mach 3 or not, but one thing is for sure and that is that we are NOT moving AWAY from being a police state. The other thing for sure is that what you are willing to put up with in terms of a police state is probably much more than what your Grandparents were willing to put up with, and the way we are preparing our children for the police state of the future with school searches, friskings, metal detectors, etc.; they certainly will be willing to put up with much more of a police state then we are today. If I had to make an analogy, I would say we are following the same path that Britain did. The Brits had pretty much every right that is guaranteed under our Bill of Rights back in the 1920’s, however in 2005 the Brits have NONE of those rights (and they are proud of that fact).

Now in terms of using every tool that is "legal" on the public, it goes back to what I alluded to earlier and that is that it is best to only use those tools that are appropriate. Proper use of "officer discretion" goes along way to maintaining community relations. The other way to think about it is that if you did every thing to a law abiding citizen that you could "legally" do to them, you probably would have a revolt. For example, every time some one goes through a check point, ask to see their wallet, if it contains more than a "normal" amount of cash confiscate that money. If every officer used that little “legal” tool, given to us thanks to the war on drugs, I wager there would be quite a back lash.

I guess, I will bring it back full circle and say that officer discretion is a good thing and that one should make sure that one is using the right tools in the right instances. In that light, even if your dog has a very small false positive rate of 2%, it is not the dog to use on mass searches. I think it really goes to show that a HIGH quality dog is really worth its weight in gold in terms of catching the bad guy, properly using department resources and maintaining good relations with the public.

Deanna-sorry about the monitor. <img src="/ubbthreads/images/graemlins/laugh.gif" alt="" /> (I counted 1,106)

David-thanks.

Thomas-well, here's the thing. I keep getting wrapped up in some of the words that you're using, because they are, as I noted in my last, "terms of art".

If you look at the body of caselaw on roadside search/seizure and checkpoints, you'll find that the courts loathe the use of "officer discretion". In fact, they basically feel that, where they create room for such discretion, there is a substantial likelihood it will be abused. That was the plain thrust behind the S. Ct. decision in cases like Indianapolis v. Edmond.

I also said that I don't see every handler running a dog every time he thinks he can; the value of the Caballes case was breathing room. In fact, I think that checkpoints are about the only time (other than that rare case like Caballes itself) where a dog is deployed without some type of suspicion, and therefore other articulable facts that will cut into your 2%/20%/98%/69.524763% theory. And you make a good point at the end of your last post-many dogs are dual-purpose, and do more than just find dope. That would add or subtract from your % in one direction or another, depending on which end of the candle you're burning.

Remember, you have to keep PR and law enforcement separate, to some extent. Meanwhile, I'll do some (more) research on false positives this weekend and get back to you.