Free Republic
Browse · Search
Smoky Backroom
Topics · Post Article

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.)
[ Post Reply | Private Reply | To 9 | View Replies ]


To: supercat

I mostly agree with you. At a minimum, the dog’s training and experience ought to be an issue that could be raised.

I personally think drug dogs should be used to search for terrorist types, and stay out of the drug wars.


145 posted on 03/01/2013 6:39:18 PM PST by Mr Rogers (America is becoming California, and California is becoming Detroit. Detroit is already hell.)
[ Post Reply | Private Reply | To 131 | View Replies ]

Free Republic
Browse · Search
Smoky Backroom
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson