… and with it, Caballes v. Illinois.
Those who have followed this blog for awhile know that I consider Caballes v. Illinois one of the more obviously clueless Supreme Court decisions of recent years. For those who don’t know, the decision basically said that a police dog alerting on a car was sufficient justification for a search even if there was no other suspicion. In other words, your Fourth Amendment right against unreasonable search could be eliminated based on a dog’s reaction.
Justice Stevens’ decision for the majority had language that doesn’t pass the smell test for even a first-year law student:
We have held that any interest in possessing contraband cannot be deemed Ã¢â‚¬Å“legitimate,Ã¢â‚¬Â and thus, governmental conduct that only reveals the possession of contraband Ã¢â‚¬Å“compromises no legitimate privacy interest.Ã¢â‚¬Â
A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.Ã¢â‚¬Â
The bizarre assumption there is that a drug dog will only alert in the presence of illegal narcotics.
Just recently, as I noted in Dogs are like the Supreme Court. Often wrong.:
Chicago Tribune: The dogs are trained to dig or sit when they smell drugs, which triggers automobile searches. But a Tribune analysis of three years of data for suburban departments found that only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia.
For Hispanic drivers, the success rate was just 27 percent.
So we have actual, practical evidence that Stevens and the majority were dead wrong.
But that’s not all.
Now we can add to that some powerful research evidence proving that drug dog alerts are strongly affected by the interest of their handler in this new study.
The performance of drug- and explosives-sniffing dog/handler teams is affected by human handlersÃ¢â‚¬â„¢ beliefs, possibly in response to subtle, unintentional handler cues, a study by researchers at UC Davis has found.
The study, published in the January issue of the journal Animal Cognition, found that detection-dog/handler teams erroneously Ã¢â‚¬Å“alerted,Ã¢â‚¬Â or identified a scent, when there was no scent present more than 200 times Ã¢â‚¬â€ particularly when the handler believed that there was scent present.
Ã¢â‚¬Å“It isnÃ¢â‚¬â„¢t just about how sensitive a dogÃ¢â‚¬â„¢s nose is or how well-trained a dog is. There are cognitive factors affecting the interaction between a dog and a handler that can impact the dogÃ¢â‚¬â„¢s performance,Ã¢â‚¬Â said Lisa Lit, a postdoctoral fellow in the Department of Neurology and the studyÃ¢â‚¬â„¢s lead author.
“These might be as important Ã¢â‚¬â€ or even more important Ã¢â‚¬â€ than the sensitivity of a dogÃ¢â‚¬â„¢s nose.Ã¢â‚¬Â
In the study, they informed dogs’ handlers that there could be drugs in any of the rooms, and that a piece of red construction paper in two of the rooms would identify the location of the scent. In fact, there were no drugs or explosives at all.
Although there should have been no alerts in any of the rooms, there were alerts in all rooms. Moreover, there were more alerts at the locations indicated by construction paper than at either of the locations containing just the decoy scents or at any other locations.
That is significant, Lit said, because there were more alerts on target locations indicated by human suggestion Ã¢â‚¬â€ the construction paper Ã¢â‚¬â€ than at locations of increased dog interest Ã¢â‚¬â€ the hidden sausage and tennis balls. There also were alerts on a wide variety of other locations, indicating that the dogs were not simply alerting in the same locations where other dogs had done so.
Lit noted that in the early 20th century in Germany a horse named Clever Hans was believed to be capable of counting and other tasks. It was determined that Clever Hans actually was responding to the minute, postural and facial cues of his trainer or other observers. Similarly, detection dogs may be alerted to subtle human cues that direct dog responses without formal training, including pointing, nodding, head-turning and gazing.
We now have a significant body of evidence that drug dog sniffs are not a reliable identification of the location of contraband. Useful in investigation, to be sure, but not in any way sufficient to fulfill the requirements of the Fourth Amendment prohibiting unreasonable searches.
In the entire Supreme Court, now-retired Justice Souter was the only one who got it. In the Caballes decision, he blasted the majority for their decision and also called for re-visiting United States v. Place, an underlying 1983 decision regarding drug dog sniffs.
In United States v. Place, 462 U.S. 696 (1983), we categorized the sniff of the narcotics-seeking dog as Ã¢â‚¬Å“sui generisÃ¢â‚¬Â under the Fourth Amendment and held it was not a search. Id., at 707. The classification rests not only upon the limited nature of the intrusion, but on a further premise that experience has shown to be untenable, the assumption that trained sniffing dogs do not err. What we have learned about the fallibility of dogs in the years since Place was decided would itself be reason to call for reconsidering PlaceÃ¢â‚¬â„¢s decision against treating the intentional use of a trained dog as a search. The portent of this very case, however, adds insistence to the call, for an uncritical adherence to Place would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks; if a sniff is not preceded by a seizure subject to Fourth Amendment notice, it escapes Fourth Amendment review entirely unless it is treated as a search. We should not wait for these developments to occur before rethinking PlaceÃ¢â‚¬â„¢s analysis, which invites such untoward consequences.1
At the heart both of Place and the CourtÃ¢â‚¬â„¢s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband.2 See ibid. (Ã¢â‚¬Å“[T]he sniff discloses only the presence or absence of narcotics, a contraband itemÃ¢â‚¬Â); ante, at 3Ã¢â‚¬â€4 (assuming Ã¢â‚¬Å“that a canine sniff by a well-trained narcotics dog will only reveal Ã¢â‚¬Ëœthe presence or absence of narcotics, a contraband itemÃ¢â‚¬â„¢ Ã¢â‚¬Â (quoting Place, supra, at 707)). Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the sniff Ã¢â‚¬Å“does not implicate legitimate privacy interestsÃ¢â‚¬Â and is not to be treated as a search. Ante, at 4.
The infallible dog, however, is a creature of legal fiction.
Absolutely. And now we have even more proof.
Unfortunately, we’re not likely to see the Supreme Court willing to address this issue in the near future.