Reliability of drug-sniffing dogs called into question.
Arlington, VA. - Should the government be allowed to search and seize your possessions based on nothing more than a positive “alert” from a drug-sniffing dog? The Fourth Amendment to the U.S. Constitution requires police, in most situations, to have what is known as a “probable cause” (a reasonable belief based on sufficient facts) before they can search or seize property. Increasingly, however, police have been using drug-sniffing dogs to establish probable cause to seize, and ultimately keep through civil forfeiture, cash, cars and other property on the grounds that the property may be linked to a drug crime.
“Using a police dog alert as the sole justification to search and seize private property violates constitutional guarantees,” said Institute for Justice (IJ) attorney Darpana Sheth, who authored the IJ’s amicus brief in the Florida v. Harris case, which will be heard on October 31, 2012, before the U.S. Supreme Court. “First, numerous studies, including a recent one by the University of California-Davis, have shown that drug-sniffing dogs are unreliable because, all too often, they are alerting due to cues from their handler or residual odors, rather than the actual presence of drugs. Second, police dog handlers work in departments that are often funded through forfeiture funds, giving them a direct financial incentive to ‘police for profit’ rather than pursue the neutral administration of justice. These are two serious concerns the Court should not ignore as it hears this case.”
It is the government’s burden to prove probable cause when conducting a warrantless search, IJ’s amicus brief argues that it must introduce evidence of the reliability of the drug-sniffing dog and corroborate the “alert” with independent police work, just as the government is required to do when relying on confidential informants. Evidence of the dog’s reliability includes, at minimum, the dog’s training records, the dog’s prior performance in the field, and the experience of the police dog’s handler.
For a copy of the Institute for Justice’s amicus brief in Florida v. Harris, visit: http://www.ij.org/images/pdf_folder/amicus_briefs/fl-v-harris-amicus.pdf.
The same day, the Supreme Court will also hear argument in another dog-sniffing case. In Florida v. Jardines, the Supreme Court will consider whether a dog sniff at the front door of someone’s home is a search under the Fourth Amendment, requiring probable cause. The Supreme Court’s rulings in both of these cases could have drastic consequences for innocent property owners.
“The Harris case has serious implications for civil forfeiture,” said IJ Senior Attorney Scott Bullock. “Relying solely on a positive alert by a dog to establish probable cause will seriously erode property rights and lead to greater forfeiture abuse. Although dogs can serve as valuable investigative tools, they should not be the sole means to establish probable cause for a search. Watering down the probable cause standard in this way would vastly expand the power of law enforcement to seize, forfeit, and profit from the property of innocent owners, even when there is no evidence of criminal wrongdoing.”
Bullock said, “Given that more lax procedural requirements apply to civil forfeiture than criminal forfeiture, law enforcement often pursues the civil forfeiture avenue. Indeed, 80 percent of persons whose property was seized by the federal government for forfeiture were never even charged with a crime.”
By allowing law enforcement to keep forfeiture proceeds, civil forfeiture creates systemic abuse.
“Incentives matter,” Sheth said. “Just as private citizens are motivated by self-interest, so too are government officials. Even the most well-intentioned law enforcement officers attempt to maximize the size and budget of their agency, increase their salaries, and gain power and prestige. Because, in contrast to private citizens, government officials can use force to achieve their ends, it is a constant threat that those in positions of power will use that force to serve their own self-interest at the expense of the larger public. This concern reaches its zenith when government officials stand to benefit themselves by seizing private property.”
IJ studies, such as Policing for Profit (www.ij.org/PolicingForProfit) and Inequitable Justice (www.ij.org/Inequitable-Justice), documented how financial incentives have led to abuse.
As a direct result of federal and state law incentivizing law enforcement officials to seize property under civil forfeiture, there has been an explosion of forfeiture revenue. The U.S. Department of Justice’s Assets Forfeiture Fund—the largest of the federal government’s forfeiture funds—more than tripled in less than a decade, growing from $500 million in FY 2003 to $1.8 billion in FY 2011. State law enforcement agencies have been getting more and more money through the federal equitable sharing program, which pays state agencies with up to 80 percent of the forfeiture proceeds for referring civil forfeitures to federal authorities. Not only do state agencies directly benefit from forfeitures under equitable sharing, but forfeitures conducted under their own state laws also are on the rise. In Florida, law enforcement officials receive 85 percent of the funds generated from civil forfeitures under state law. In a mere three-year period from 2001 to 2003, Florida raked in more than $100 million in forfeitures under state law and anywhere from $16 million to $48 million per year in the 2000s through equitable sharing.
Chip Mellor, president and general counsel for the Institute for Justice, said, “Modern civil forfeiture laws represent one of the most serious assaults on private property rights today and this abuse must end. The Institute for Justice greatly curtailed eminent domain abuse over the past decade. We are now working to fight forfeiture abuse through the same advocacy in courts of law, in the court of public opinion, as well as through strategic research and activism to stop these abuses of private property rights.”
http://www.ij.org/florida-v-harris-amicus
Two Supreme Court cases about dogs may profoundly impact Americans' privacy.
On Oct. 31, the U.S. Supreme Court will hear two cases from Florida about drug-sniffing dogs that will either affirm or weaken the constitutional privacy rights of Americans.
Rulings favorable to the government would allow law enforcement to conduct warrantless searches and surveillance on an even more routine basis.
The first case will ask the court to clarify how accurate a drug dog must be to establish probable cause for the search of a vehicle.
Florida v. Harris: http://www.supremecourt.gov/qp/11-00817qp.pdf
The second case asks if police may take a drug dog to the front porch of a home to sniff for evidence of marijuana inside.
Florida v. Jardines: http://www.supremecourt.gov/qp/11-00564qp.pdf
In both cases the government argues that the dog is "alerted" only by illegal contraband so it doesn't count as a search, visiting Yale Law School professor Jeffrey A. Meyer writes in The New York Times.
But dogs make mistakes, Meyer points out, so it's dangerous to base a constitutional protection on a dog's nose rather than on the privacy of the space that's being invaded.
The Fourth Amendment's protections are strongest in the home—Meyer notes the Supreme Court once said that "every man's house is his castle" and even the “poorest man may in his cottage bid defiance to all forces of [government].”
Furthermore allowing a superior instrument like a drug-sniffing dog or a high-tech scanning device to "sense" something from the outside would "free the government to conduct routine scans of people’s homes or their bodies," according to Meyer.
Meyer concludes that the right choice for the court will be "to affirm our rights in our homes and our persons to be free, in the absence of emergency circumstances, from the warrantless use of dogs and sense-enhancing technology."
http://www.businessinsider.com/supreme-court-drug-dogs-privacy-2012-10#ixzz29ag0nvSG
Will privacy go to the dogs?
http://www.nytimes.com/2012/10/17/opinion/the-supreme-court-must-draw-a-firm-line-on-police-searches.html?ref=opinion&_r=2&
Are Dogs 'Scientific Devices'?
Wednesday's cases (10/31) concern the professional reputations of Franky, a drug-sniffing K-9 officer of the Miami-Dade Police Department, and Aldo, the drug-sniffing pride of the Liberty County, Florida, Sheriff's Department -- and, beyond them, of all dogs in law enforcement.
Unlike the Ol' Drum case, no one disputes that Franky and Aldo are valuable. Instead, the Supreme Court is being asked to decide whether drug-sniffing dogs are (1) never intrusive and (2) always reliable. The answers will help shape the role dogs play in police work for years to come.
Franky's tale began in 2006, when Miami police and federal drug agents, acting on a "crime stoppers" tip, staked out the home of Joelis Jardines. Franky and his handler took point: As other officers guarded the perimeter, they walked onto the front porch of Jardines' house. There Franky, the state of Florida says, "altered by sitting down immediately after sniffing the base of the front door." Franky's alert formed the basis for a search-warrant affidavit, and when officers served the warrant, they found a marijuana grow and arrested Jardines as he tried to run away.
Earlier that same year, Liberty County Sheriff's Canine Deputy William Wheetley stopped a truck driven by Clayton Harris for expired license plates. Aldo, Wheetley's trained dog, also "alerted" by deeply sniffing the door handle of Harris's truck. Wheetley searched and found the ingredients for making mass quantities of meth.
At their trials, both defendants challenged the use of the dogs as a violation of their Fourth Amendment rights to be free of "unreasonable searches and seizures." The Florida Supreme Court reversed both convictions on Fourth Amendment grounds.
At this point, we need to separate the two issues. With Jardines, the Florida court held, the use of a dog to enter his front porch area was itself a "search," meaning that police should have had enough evidence to get a warrant before the sniff. The Supreme Court has held that dog sniffs in public -- for example, of luggage in an airport -- are not "searches" for Fourth Amendment purposes. In part, that's because dogs supposedly only sniff for illegal drugs, and no one has a "privacy interest" in illegal drugs.
But, said the Florida court, the home is different. Officers approaching a residence with a K-9 dog create a spectacle that is neither brief nor unobtrusive, and that compromises genuine privacy interests:
Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity -- i.e., the preparation for the "sniff test," the test itself, and the aftermath, which culminated in the full-blown search of Jardines' home -- lasted for hours. The "sniff test" apparently took place in plain view of the general public. There was no anonymity for the resident. Such a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident . . . for such dramatic government activity in the eyes of many -- neighbors, passers-by, and the public at large -- will be viewed as an official accusation of crime.
If the courts approve such tactics, the Florida court warned, police may soon be going door to door with dogs, or applying the home sniff test "in an arbitrary or discriminatory manner, or based on whim and fancy."
http://www.theatlantic.com/national/archive/2012/10/are-dogs-scientific-devices/264283/