U.S. Supreme Court to Judge Drug-Sniffing K9s

Does the Fourth Amendment Protect Us From Dogs Without Warrants?

There must have been a point in my life when I thought, “Dogs can sniff out drugs? No way.” Some distant point in my youth I no longer recall. Seems a socially accepted truth these days.

So it may surprise some that the question, in part, is now before the U.S. Supreme Court — casting doubt on the training of the dogs and how well they do their jobs, and whether the Fourth Amendment, the one that protects us from unreasonable search and seizure, should be able to stop them from doing their jobs at all.

“Dogs make mistakes. Dogs err,” lawyer Glen P. Gifford told the justices during argument in October. “Dogs get excited and will alert to things like tennis balls in trunks or animals, that sort of thing.”

However, Justice Department lawyer Joseph R. Palmore retorted, “In situation after situation, the government has in a sense put its money where its mouth is, and it believes at an institutional level that these dogs are quite reliable.”

To officially alert, a trained detection dog must perform a particular signal that says “drugs are here,” not just show interest in a thing. Dogs are extensively trained to know what that is.

But even your own dog has super powers when it comes to smell. Their noses' power is actually 100,000 times ours. The moisture that may wet your hand or cheek with cuddling, that mucous, actually helps them smell, you know. And science has proven that dogs can even decern individual scents when they've been masked by other stuff like Vicks VapoRub and coffee grounds.

Still, skeptics exist. Some studies claim that handlers alert their dogs 85 percent of the time, not the other way around, and only 44 percent of dog alerts actually result in the recovery of drugs, according to the High Times.

But I digress.

Courts disagreed on two particular cases, and so it is that Franky and Aldo came to Washington. These two Floridian drug-sniffers are on the hot seat for this cause.

Worth following, for those of us who respect these K9s as members of our local police force:

In December 2006, Franky detected pot from outside the front door of Joelis Jardines, so police obtained a search warrant and discovered 179 marijuana plants growing inside. Jardines' attorney argued the dog's evidence was an unconstitutional intrusion; the trial judge agreed, a Florida appeals court reversed that ruling, and the state Supreme Court sided with the trial judge.

In the other case, Clayton Harris was arrested during a 2006 traffic stop for expired registration when Aldo did a “free air sniff” and alerted police to methamphetamine ingredients. During — again — the warrantless search that followed, police found more than 200 loose pills and other supplies for making methamphetamine. The trial judge upheld the dog's search, but the state Supreme Court ruled that the state didn't prove the dog's reliability in drug detection enough to prove probable cause.

The problem is the lack of warrants in both cases. Experts summarize theJardines and Harris cases in videos at those links, which also provide more details on each.

So will justices find the canine shnoz a probable cause barometer for warrants? How trustworthy are dogs when they follow their awe-inspiring olfactory sense — trustworthy, without warrant, even in the eyes of the law?

A fun Washington Post article on the justices' questions during oral arguments, which lasted two hours on Halloween, can be found at this link.

Must you taste everything? Must you know everything? Must you have a part in everything? —“Smell” by William Carlos Williams

The high court will decide before its term ends in June.

Scott Darpel November 13, 2012 at 07:40 PM
Seems to me to be the perfect application of statistics, ala Measurement Systems Analysis, or Gage Reliability and Repeatability for you old-timers. Simple in concept, not terribly hard to execute: at least 10 known "samples", at least 10 different dog/handler teams, and at least 2 attempts with each sample (blind samples). The analysis tells you the error in the system. All we would have to decide is what confidence level (chance of making the right decision) we want for this detection "system"; 90%, 95%, 99%, 99.9999%?
Scott Darpel November 13, 2012 at 07:41 PM
Another case where statistical thinking can be used.


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