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Where Does a Cop With an 80-pound Dog Search? Anywhere He Wants.
Townhall.com ^ | February 27, 2013 | Jacob Sullum

Posted on 02/27/2013 5:08:50 PM PST by Kaslin

Imagine that a police officer, after taking it upon himself to search someone's car, is asked to explain why he thought he would find contraband there. "A little birdie told me," he replies.

Most judges would react with appropriate skepticism to such a claim. But substitute "a big dog" for "a little birdie," and you've got probable cause.

Or so says the U.S. Supreme Court, which last week unanimously ruled that "a court can presume" a search is valid if police say it was based on an alert by a dog trained to detect drugs. The court thereby encouraged judges to accept self-interested proclamations about a canine's capabilities, reinforcing the alarmingly common use of dogs to justify invasions of privacy. Drug-detecting dogs are much less reliable than widely believed, with false-positive error rates as high as 96 percent in the field. A 2006 Australian study found that the rate of unverified alerts by 17 police dogs used to sniff out drugs on people ranged from 44 percent to 93 percent.

Police and prosecutors commonly argue that when a dog alerts and no drugs are found, "the dog may not have made a mistake at all," as Justice Elena Kagan put it, writing for the Court. Instead, it "may have detected substances that were too well hidden or present in quantities too small for the officer to locate."

This excuse is very convenient -- and completely unfalsifiable. Furthermore, probable cause is supposed to hinge on whether there is a "fair probability" that a search will discover evidence of a crime. The possibility that dogs will react to traces of drugs that are no longer present makes them less reliable for that purpose.

So does the possibility that a dog will react to smell-alike odors from legal substances, distractions such as food or cues from their handlers. Given all the potential sources of error, it is hard to assess a dog's reliability without looking at its real-world track record. That is why the Florida Supreme Court, in the 2011 decision that the U.S. Supreme Court overturned, said police should provide information about a dog's hits and misses.

"The fact that the dog has been trained and certified," it said, "is simply not enough to establish probable cause," especially when, as in most states, there are no uniform standards for training or certification.

Kagan, by contrast, minimized the significance of a dog's success at finding drugs in the field. She said police testing in artificial conditions is a better measure of reliability, even though handlers typically know where the drugs are hidden and can therefore direct the animals to the right locations, either deliberately or subconsciously.

Instead of requiring police to demonstrate that a dog is reliable, this decision puts the burden on the defense to show the dog is not reliable through expert testimony and other evidence that casts doubt on the training and testing methods used by police. But experts are expensive, and police control all the relevant evidence.

Police even determine whether the evidence exists. Many departments simply do not keep track of how often dog alerts lead to unsuccessful searches, and this decision will only encourage such incuriosity.

The court previously has said that police may use drug-sniffing dogs at will during routine traffic stops and may search cars without a warrant, based on their own determination of probable cause. Now that it has said a dog's alert by itself suffices for probable cause, a cop with a dog has the practical power to search the car of anyone who strikes him as suspicious.

Even the question of whether a dog did in fact alert may be impossible to resolve if there is no video record of the encounter, which is often the case. As Florida defense attorney Jeff Weiner puts it, the justices "have given law enforcement a green light to do away with the Fourth Amendment merely by uttering the magic words, 'My dog alerted.'"


TOPICS:
KEYWORDS: dogs; donutwatch; drugs; drugwar; lawenforcement; leo; policestate; privacy; scotus; supremecourt; warondrugs; wod; wodlist; wosd
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To: JustSayNoToNannies; fattigermaster
http://link.springer.com/article/10.1007/s10071-010-0373-2/fulltext.html

it is possible that dogs are also being conditioned to respond to additional unintentional human cues.

Because the current study did not include videotape of handler/dog team performance, there is no way to identify which conclusion would be appropriate. Observer coding of dog behavior was not likely to improve the reliability of the data acquired because the double-blind study design had the potential for the observers to be subject to the same biases as the handlers. In fact, it is possible that the observers were subject to greater biases than the handlers, since they were able to observe every dog twice. Therefore, observer coding would have been subject to the same possible explanations as the handlers, and further subject to question according to level of observer experience with working dogs. Future studies should directly explore underlying factors responsible for the false alerts as this will improve development of effective remedies to optimize performance.

it is possible that even highly trained dogs might respond to subtle, unintentional handler cues

When considering alternative explanations for the incorrect responses, it is further possible that some alerts resulted from target scent contamination during initial setup of conditions

Have either of you two LIEberTARDians ever hunted upland game with setters or pointing dogs?

121 posted on 03/01/2013 11:38:23 AM PST by Alaska Wolf (I)
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To: Alaska Wolf; fattigermaster
Did you post those excerpts because you think they call into question the study's conclusions? If so, you're in way over your head.
122 posted on 03/01/2013 11:45:15 AM PST by JustSayNoToNannies ("The Lord has removed His judgments against you" - Zep. 3:15)
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To: Alaska Wolf
you call others "dumb" and "tards"

You continue to reinforce that observation.

With that rapier wit, you must be the terror of the fifth grade.

123 posted on 03/01/2013 11:47:28 AM PST by JustSayNoToNannies ("The Lord has removed His judgments against you" - Zep. 3:15)
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To: fattigermaster
screeching like a butthurt bitchboy.

You mean doper LIEberTARDians.

I provided two dozen references and studies

I was totally unimpressed with your alleged two dozen references and studies. Obviously you can't count either. LOL!

124 posted on 03/01/2013 11:49:33 AM PST by Alaska Wolf (I)
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To: JustSayNoToNannies
Did you post those excerpts because you think they call into question the study's conclusions?

The study can conclude whatever it wants. I would trust a trained dog over a university professor or graduate student any day. Obviously you wouldn't. Hopefully you'll never need the services of a guide or service dog.

125 posted on 03/01/2013 11:54:19 AM PST by Alaska Wolf (I)
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To: JustSayNoToNannies
With that rapier wit, you must be the terror of the fifth grade.

You believe that because you are just learning to read and write English?

126 posted on 03/01/2013 11:57:27 AM PST by Alaska Wolf (I)
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To: Alaska Wolf
I would trust a trained dog over a university professor or graduate student any day.

Nobody was asking the university researchers to scent drugs, and if you think a trained dog can design and conduct sound research ... well, that explains a lot about your posts.

127 posted on 03/01/2013 11:59:50 AM PST by JustSayNoToNannies ("The Lord has removed His judgments against you" - Zep. 3:15)
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To: JustSayNoToNannies
Nobody was asking the university researchers to scent drug

NSS!

if you think

I do and obviously you are incapable.

128 posted on 03/01/2013 12:31:36 PM PST by Alaska Wolf (I)
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To: Alaska Wolf
Run along and play, sonny - your microcephalic antics no longer amuse me.
129 posted on 03/01/2013 1:04:24 PM PST by JustSayNoToNannies ("The Lord has removed His judgments against you" - Zep. 3:15)
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To: JustSayNoToNannies

Don’t go away mad. I enjoy squashing LIEberTARDian bugs like you. LOL!


130 posted on 03/01/2013 1:25:08 PM PST by Alaska Wolf (I)
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To: Mr Rogers
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.

The biggest problem with current practice regarding the Fourth Amendment is that regards as binding factual determinations made by judges at pre-trial hearings, in many cases before defendants have a chance to get evidence which may contradict them. If courts really wanted to protect defendants' right to have factual matters in criminal cases be decided by a jury, they should allow defendants to challenge whether officers were in fact acting on the basis of good-faith probable cause which was genuinely supported by oath or affirmation (meaning, among other things, that a finding of probable cause must not rely upon any hearsay, and that officers seeking a warrant actually had a reasonable belief that they would find what they claimed to be looking for). Jurors should be regarded not to construe against a defendant any evidence gathered contrary to such requirements. Note that the legitimacy of a warrant is not just a question of law: in many cases, the question of whether a search should be considered legitimate will hinge upon the relative credibility of various witnesses, and consequently the issue should be regarded as a question of fact.

With regard to dog-initiated searches, I would posit that defendants have the right to demand records of how often dogs alert, how often searches result from such alerts, and how often such searches find the goods which are searched for. If e.g. only 10% of the searches that result from a particular dog's alerts actually find the materials the dog was trained to detect, regardless of whether the dog was just plain wrong, or was detecting trace amounts of the material, or whatever, the fact remains that officers conducting searches on the basis of the dog's alerts would have really only had a 10% chance of finding anything; that would seem rather skimpy as a basis for "probable cause".

131 posted on 03/01/2013 4:08:34 PM PST by supercat (Renounce Covetousness.)
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To: Alaska Wolf
Why are dogs routinely used in search and rescue missions?

In search and rescue missions, the dog's handlers don't want false positives; they don't decide that they want to search a pile of rubble and then bring in a dog to justify it. If there's nothing in the rubble, they don't want to waste time searching. By contrast, in many cases where dogs alerts are used to justify a search, the police desire to perform the search precedes the dog's alert. Even if there's nothing for the dog to detect, many officers would still rather have the dog alert so as to justify their suspicions, than have the dog remain silent and thus let the suspects go.

132 posted on 03/01/2013 4:24:20 PM PST by supercat (Renounce Covetousness.)
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To: supercat
In search and rescue missions, the dog's handlers don't want false positives

What makes you believe bomb and drug dog handlers want false positives? I just can't see what there is to gain. If I'm a bird hunter and my bird dog is making false points one of us is doing something wrong and neither of us is going to be happy until the problem is remedied.

133 posted on 03/01/2013 5:03:24 PM PST by Alaska Wolf (I)
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To: Alaska Wolf; supercat; Mr Rogers; PapaBear3625; Cyber Liberty; dirtboy; JustSayNoToNannies; All
What makes you believe bomb and drug dog handlers want false positives?

Because a dog with a certificate not worth the paper it's printed on is an effective loophole to abrogate our 4th Amendment rights. The dog "Bono" on whose performane the recent USSC decision rested only found drugs 25% of the times he alerted and yet passed certification by his department with flying colors.

Right now there is a lawsuit by Nevada Highway Patrol officers that their superiors are using "trick ponies" in their canine units...dogs trained to alert on cue from the handler, not because fhey've scented contraband...resulting in unlawful searches and seizures for the agency's financial benefit.

134 posted on 03/01/2013 5:33:53 PM PST by fattigermaster (Train for life in prison because they are stacking the bricks and setting the bars around you.)
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To: fattigermaster; supercat; Mr Rogers; PapaBear3625; Cyber Liberty; dirtboy; JustSayNoToNannies; ...
only found drugs 25% of the times he alerted

The problem is, drugs could have been present prior to the dogs first scenting them. AFAIK there is no way for a dog to transmit to the handler how old the scent is or what drug may have been present previously.

there is a lawsuit by Nevada Highway Patrol officers

The very officers that you claim can't be trusted and are liars. Can you make up your mind?

135 posted on 03/01/2013 5:47:17 PM PST by Alaska Wolf (I)
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To: Alaska Wolf

Obviously the NHP these three officers are suing can’t be trusted an are liars, since this has been going on since 2008...so if anything, these exceptions prove the rule, don’t they?


136 posted on 03/01/2013 5:53:34 PM PST by fattigermaster (Train for life in prison because they are stacking the bricks and setting the bars around you.)
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To: fattigermaster

Haven’t you claimed that cops in general can’t be trusted and are liars? Yes or no?


137 posted on 03/01/2013 6:00:16 PM PST by Alaska Wolf (I)
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To: Alaska Wolf
What makes you believe bomb and drug dog handlers want false positives? I just can't see what there is to gain

Gee, I cannot imagine why.

Other than the big bucks to be gained by confiscation.

138 posted on 03/01/2013 6:06:42 PM PST by dirtboy
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To: dirtboy
the big bucks to be gained by confiscation.

If there is nothing there, WTF can be confiscated?

139 posted on 03/01/2013 6:11:18 PM PST by Alaska Wolf (I)
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To: Alaska Wolf

Oh, puh-leeze, you cannot be such an idiot to ignore the monies gained by this drill?


140 posted on 03/01/2013 6:13:58 PM PST by dirtboy
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