The Fourth Amendment grows narrower

January 24, 2005 10:15 AM

The Supreme Court, in a 6-2 decision Monday, ruled that police do not violate the Fourth Amendment when they use a drug-detecting dog to locate illegal drugs in the trunk of a car during a legal traffic stop. The decision, and dissents from Ginsburg and Souter.
posted by trharlan (45 comments total)

The defendant was doing 71 in a 65 zone. He faces 12 years in prison and a $256,136 fine.
posted by trharlan at 10:17 AM on January 24, 2005

Go the speed limit if you have something to hide.
posted by edgeways at 10:21 AM on January 24, 2005

yeah, trharlan, don't make it sound like he's going to jail for speeding.
posted by null terminated at 10:29 AM on January 24, 2005

How can this possibly constitute a reasonable search?
posted by kyrademon at 10:31 AM on January 24, 2005

Going 71 in a 65 is pretty common, from where I'm at. And they usually don't get pulled over, since the guy going 80 or so is the one who gets nabbed.
posted by angry modem at 10:31 AM on January 24, 2005

I love SCOTUS opinion season.
posted by smackfu at 10:32 AM on January 24, 2005

Also, avoid looking like someone who might have drugs, so they don't bring a drug-sniffing dog over for your +6mph speeding ticket.
posted by fleacircus at 10:33 AM on January 24, 2005

BTW, the opinion is really short. 5 pages. Read it.
posted by smackfu at 10:36 AM on January 24, 2005

Welcome to the Land of the Free.

Random plant search ahead.
posted by mosch at 10:40 AM on January 24, 2005

If the drug sniffing dogs are used on public property (such as a highway), I don't have any problem with it.

On the other hand, if drug sniffing dogs were used on private property without a warrant, I have a big problem with it.
posted by LinemanBear at 10:43 AM on January 24, 2005

LinemanBear: That's interesting. Should the police also be able to just wander the sidewalk with drug sniffing dogs, randomly stopping people for a quick sniff? The sidewalk is, of course, also public property, but people are still supposed (or were once supposed) to be secure in their persons and property from unreasonable searches and seizures.
posted by The Bellman at 11:01 AM on January 24, 2005

Summary: Because the dog sniff occurred outside of the car, during the time it would take for a routine traffic stop, and there was no physical invasion of the driver's property, nor could the dog sniff be used to examine lawful private activities in a voyeuristic manner, this did not violate the 4th amendment, nor did it violate the man's right to privacy.
posted by jearbear at 11:05 AM on January 24, 2005

On the other hand, if drug sniffing dogs were used on private property without a warrant, I have a big problem with it.

Question: is the inside of a car private property?
posted by eriko at 11:10 AM on January 24, 2005

The Bellman...it was a traffic stop and officers have a legal right, and obligation, to search if suspicious. You can't go around patting people down or ask people to show ID without probable cause. Speeding creates an environment where officers have latitude to search a person and any visible (and now sniffable) part of their car.
posted by BlueTrain at 11:11 AM on January 24, 2005

Those of us who do not store drugs in our cars could store hemp rope and other legal, but fragrant, items.
posted by theora55 at 11:17 AM on January 24, 2005

I think the crux of the argument is whether the dog, a tool of enforcement, can be activated prior to probable cause.

It's an interesting question. Suppose a hypothetical. We created a handheld device capable of smelling narcotics with more efficacy than the dog. Would it be legal to keep the device "on" at all times when on duty?

It gets complicated because suppose we have an officer with an impeccable sense of smell. Is he unreasonably searching now? I admit...I thought this was a weak post, but now that my mind is wrapping around the implications, I suddenly want to thank trharlan for pointing this out.
posted by BlueTrain at 11:26 AM on January 24, 2005

12 years for carrying a harmless plant, and you people are arguing about dogs?
Crazy world we live in.
posted by signal at 11:32 AM on January 24, 2005

Fascinating (from Justice Souter's dissent):

...(noting that because as much as 80% of all currency in circulation
contains drug residue...).

posted by nobody at 11:33 AM on January 24, 2005

Police need to have a number of indicia of intoxication prior to submitting a breath test.

The trunk of a car can only be searched subject to inventory. In essence, you must be placed under arrest and your car is going to be impounded before an officer can legally get into any locked compartment i.e., trunk and glove box.

This is a sad day. You may not be a criminal but you should be concerned about the limits this places on your Fourth Amendement rights.
posted by Lola_G at 11:51 AM on January 24, 2005

Besides hemp, poppy seed oil(?), and maybe catnip...what other things could be confused with drugs by a K9 dog?
posted by MrMulan at 11:56 AM on January 24, 2005

Really the messed up thing is how speed limits are enforced. It's generally acceptable to go <10mph over the posted speed limit, to the point of it feeling unsafe if you go the exact speed limit, i.e. cars swerving around you, etc. So then, if you look the slightest bit suspicious, the police have every right to pull you over if you're going just a few mph too fast. Basically, when everybody is encouraged to enter this gray area of law enforcement, the police can also operate in a questionable manner. I think it'd be nice if they would raise the speed limit 10mph and be a lot more strict about it's enforcement, thereby reducing the gray area, what do others think about this? /one man's rant
posted by garethspor at 12:00 PM on January 24, 2005

In case people have problem with the non-sequitor of my previous statement...read Ginsburg's dissent and the explanation of the "Terry" two prong test.

By God, is she the only person on the bench who understands precendent?
posted by Lola_G at 12:01 PM on January 24, 2005

12 years for carrying a harmless plant,
Well I don't know if you could call it harmless. Certainly not as dangerous as many are led to believe.

And I think this is a separate question. A la' should certain drugs that are illegal be made legal (or non-criminal)? Debating this would be a thread jack.

Any amount of speeding is grounds for being pulled over. And it seems that anything that is detectable outside the car that indicate illegality is grounds for further investigation.

As indicated above, whether or not something should be considered illegal is a different question.

Many things can be mistaken for other items. Should airport security ignore toys that resemble weapons? Or compounds that smell similar to explosives?

So does non intrusive evidence of illegality NOT warrant investigation?
posted by edgeways at 12:01 PM on January 24, 2005

BlueTrain: As it happens, you're wrong when you say that the cops can't "ask people to show ID without probable cause." That particular statement was true, and frankly pretty obvious to anyone living in any non-police state, until last year. It was a victim of the so-called "conservative" Court in last years' Hiibel decision, which held that cops can in fact demand ID from anyone without probable cause.

Many commentators have called Hiibel essentially the end of the Fourth Amendment, at least until America shifts away from its current wartime mentality. What is "conservative" about this kind of jurisprudence I don't know, but if you are genuinely interested, google Hiibel. There's a fair amount of good scholarship about it on the web.
posted by The Bellman at 12:06 PM on January 24, 2005

It gets complicated because suppose we have an officer with an impeccable sense of smell.

Aren't police dogs treated as actual officers? I know it might be a quaint tradition, but it would seem to matter more in this particular situation. I don't know why I think they are, maybe that's just hearsay.
posted by odinsdream at 12:09 PM on January 24, 2005

nobody: Fascinating (from Justice Souter's dissent): ...(noting that because as much as 80% of all currency in circulation contains drug residue...).

It's true - cocaine powder is such a small crystal, even a tiny amount on one bill can contaminate large amounts of other bills, especially in a cash register or wallet. Snopes.com did an article on it at one point.
posted by muddgirl at 12:54 PM on January 24, 2005

No one actually believes that cops still need probable cause, do they?

As far as they're (cops) concerned, anything could be probable cause.
posted by DieHipsterDie at 1:55 PM on January 24, 2005

Wait, I get it now!

Since the terrorists hate our freedom, we're protecting ourselves by appeasing them wherever we can. I've been so silly. This, the PATRIOT act, Poindexter's TIA...It all making sense now.

Now that we're curtailing all our excess freedom, the terrorists will move on and attack places like the Netherlands, Canada, and China. We're finally going to be safe, and all it will cost is our civil rights. Wasn't that easy?
posted by mullingitover at 2:24 PM on January 24, 2005

Considering the huge hassle a diabetic friend got for having needles(!) in his car (along with insulin, btw) I shudder to think what they can drag you downtown for now.
posted by sonofsamiam at 2:35 PM on January 24, 2005

it's not the officers' actions or the court decision i disagree with, it's the punishment. 12 years and a quarter of a million dollars? unjust is the only word that comes to mind.
posted by blendor at 3:04 PM on January 24, 2005

Recaps from Slate and Northwestern University's Journalism School add some details. (The Slate recap helpfully links most of the figures in the case to corresponding dogs or cats.)

The trooper that stopped Mr. Caballes was originally going to give him a warning, but called in for an arrest report because:

there was reasonable articulable suspicion based on factors he noted during the stop, Caballes was dressed up even though traveling cross country and without a job at time of arrest, the vehicle smelled like air freshener, and Caballes acted nervous even after Gillette informed him he would only receive a warning.

While Caballes was waiting in the police car a trooper from Illinois Police Drug Interdiction Team "arrived" (it's not clear if he was called in or was just passing by) and initiated the dog sniff test.

Juan Cole's weblog Informed Comment weblog has a photoessay about the decline of the Bill of Rights.
posted by kirkaracha at 3:12 PM on January 24, 2005

We are at that point in the drug war at which it is becoming less and less clear what is a violation of civil rights.

It has become this way because short of violating peoples rights, it's farkin impossible to find out if they have the flowers of a plant in their car.


I mean really. Think on that, how the hell are police supposed to figure out if you have a flower in your car without resorting to searching everyone at random. (dog sniffing for traffic stops)

At some point we just have to ask if this is even worthwhile, even if you do find all the pot and wipe out drug use, what do you do then?

Euthanize all the dogs? Police layoffs? The entire pee analyzer industry destroyed? No more prison construction?

Nope, they are gonna have to find someone else to arrest.
posted by furiousxgeorge at 3:19 PM on January 24, 2005

Lola_G:

Well, apparently Thomas doesn't:

Specifically, Scalia told Foskett that Thomas "doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."
posted by MikeKD at 3:46 PM on January 24, 2005

I remember when this case first when to the Supreme Court. I was pretty sure that the defendant would lose, and yep, sure enough....

A cop was legally entitled to search your car if he smelled marijuana. The idea behind the decision, IIRC, is that it's already been accepted that 'smells' can constitute probable cause, and a dog is simply really good at detecting smells. (They're like little four-legged detectives that are really good at noticing certain things).

Should we think of a scent that that no human can smell as a smell? Even if it's on a continuum with things we do consider smells? Is it fair to ask people to control all their smells in order to maintain their right to secrecy?

These aren't easy questions. (but they're funny)
posted by painquale at 5:01 PM on January 24, 2005

Great post!

furiousxgeorge: even if you do find all the pot and wipe out drug use, what do you do then? [...] Euthanize all the dogs? Police layoffs?

It's not like drug crime is the only kind we have. How about taking a swing at serial rapists, gang violence and white-collar crime? That should keep us occupied for a while.
posted by Triplanetary at 5:19 PM on January 24, 2005

Why don't we just do that now and save the plant control for later?
posted by furiousxgeorge at 6:05 PM on January 24, 2005

Well, they enforce laws made, not make them themselves.
posted by Lord Chancellor at 6:28 PM on January 24, 2005

The Bellman - Too late for anybody to read the threat, but the police in Hiibel had a LOT of probable cause. It wasn't as if the police in that case stopped a random person on the street. Instead, there was a crying girl in a pickup truck and a report of domestic violence and the officer was making a quite reasonable attempt to connect the two.
posted by thedevildancedlightly at 8:51 PM on January 24, 2005

I wonder how often this sort of sniffing test would result in a false positive. I wouldn't expect to hear about this outcome unless it happened an awful lot. Have there ever been any studies on this? I also wonder to what extent a dog might pick up on tells from its handler. I would be very concerned if the dog could be used to legitimize an officer's search based on a 'gut feeling', that previously would have been hard to back up with a documentable reasonable suspicion. Anyway, I'd be a lot more comfortable with this if an unbiased study showed that false positive sniff-tests were very rare, and (hand-in-hand) that the dog wasn't reacting to unseen (and possibly subconscious) messages from the handler.
posted by Bokononist at 10:07 PM on January 24, 2005

I'd be a lot more comfortable with this if an unbiased study showed that false positive sniff-tests were very rare

I'm sure this information exists somewhere out there; dogs hae been used in airports and elsewhere for a long time. My guess is that they're fairly reliable because they're used so often, but I really don't know anything about it.
posted by painquale at 10:27 PM on January 24, 2005

Sort-of in response to painquale, sort-of a continuatinon of my original post:

Dogs have proven themselves very useful and reliable in the sorts of searches they have been used for to date. But this new ruling emphasizes the undesirability of false positives - before they only had to be at a low enough level to significantly cut down a large search-space. I believe this new precedent demands a much lower level.

Consider a parking lot with 1,000 cars, one of which has pot in the trunk. Police want to find it, and have a warrant or something allowing them to search the lot. Say a dog indicates on four of the vehicles. 996 vehicles are ruled out, and what was an impossible needle-in-a-haystack search becomes practical, thanks to the canine. In this scenario, the dog is very useful and seen as reliable. Under these new rules, however, the same numbers would result in three bogus searches for every one of a guilty party. This seems unreasonable to me.

Of course, I just made these numbers up. And even accepting them, one could argue that a 25% chance of finding contraband is sufficient to merit probable cause.
posted by Bokononist at 11:05 PM on January 24, 2005

12 years for pot, wow!

I envy your freedom ;-)
posted by twistedonion at 6:35 AM on January 25, 2005

Jacob Sullum comments.
posted by trharlan at 10:33 AM on January 28, 2005

I'm afraid to post here, tharlan is on to me.
posted by nanojath at 8:07 PM on February 23, 2005

Dude, everyone who sorts the MeFi front page by Recent Comments is "on to" you, whatever that means.
posted by boaz at 8:24 PM on February 23, 2005