Oral argument on two cases that held potentially huge significance for a fundamental change in search and seizure law were held before the Supreme Court on October 30th.  Via Radley Balko at HuffPo :

In the first case, Florida v. Jardines, the court will decide whether a drug dog’s sniff outside the door of a home constitutes a “search” under the Fourth Amendment, which police would need to justify by first establishing probable cause. If the justices decide it doesn’t, police could well begin using drug dogs to conduct mass “sniff sweeps” of apartment complexes, public housing, and other densely populated areas.

In the second case, Florida v. Harris, the Court will consider a Florida Supreme Court decision that established some rules for judges to determine whether a particular drug dog should be relied upon as grounds for a search. Here, the justices could either uphold a state supreme court’s desire to set some minimum proficiency standards, or rule that the police and prosecutors aren’t obligated to keep track of a drug dog’s performance record at all.

They could have been huge. By all accounts, they won’t be. Of the many questions that finally found their way before the justices in these two bellwether cases, the most basic of all went unmentioned. The opportunity was presented to recognize that an alert by a drug dog is absurdly insufficient to establish probable cause by any metric other than voodoo. And yet, the magic was ignored.

That assumption was wrong at the time, and it has been repeatedly proven wrong since. For example, in a survey of drug dogs used by police departments in suburban Chicago published last year, the Chicago Tribune found that when a police dog alerted to the presence of drugs during a traffic stop, a subsequent search turned up narcotics just 44 percent of the time. In stops involving Hispanic drivers, the dogs’ success rate dropped to 27 percent.

The  Lisa Lit study at Cal-Davis is far more damning. Dog sniffs are essentially carte-blanche for dog handlers to pick targets for searches, completely circumventing what most would consider actual cause, with the blessing of the Supremes in reliance on the magical abilities of canines.  As Radley notes, it’s not that dogs aren’t possessed of wondrous olfactory abilities, but that they are more inclined to do as their handlers want. 

Radley attributes this blindness on the bench to its lack of anyone who earned an honest living as a criminal defense lawyer.  While he may be right, insofar as there is no one inclined to mention the unmentionable at argument or even make the others upset with her by throwing the dog sniff myth into play, I suspect that the justices are bright enough to be aware of the problems with dog hits. 

The tacit decision evidenced by the total absence of concern for a means of establishing probable cause that is less valid than a coin toss (question: why not just let cops do rock, paper, scissors to establish probable cause? Crazy, sure, but less so than dog sniffs) is that law enforcement and the courts have incorporated the dog sniff myth so deeply into their infrastructure and jurisprudence that it would wreak havoc to admit it is all a big ol’ sham now, and hold that the magical eight ball dog alerts are no longer an adequate basis, without so much as a valid showing of training (as determined by a non-law enforcement certifying body using non-law enforcement derived metrics) and efficacy (such as, well, a mere 50% success rate).

This would spell the end of dogs, and that would spell the death of highway shoulder searches, and that would mean that police would be required to fall back on actual, articulable, specific cause. 

To be fair, if the dogs are manipulated by their handlers to alert whenever they feel the desire to conduct a search, there is no reason to believe that police would be less inclined to fudge the details of cause coming from their own observations, whether their old friend, furtive gestures or anxiety, or aggressive stance, or perhaps some newly developed combination of words that gives rise to a vague image of justification without any possibility of disputing the cop’s word.

Still, at least we can cross-examine a cop.  When the only question to be asked is whether the doggy wagged his tail, that detail being sufficient to terminate all rights under the Fourth Amendment, without regard to the fact that the doggy wags his tail constantly, at anything, whenever his beloved handler cues him to do so, even unconsciously, we’re just pretending.

Oral argument in two cases before the Supreme Court was had in earnest, but the argument was about the details on the fringes of the Ministry of Magic.  The dogs will be with us for a long time to come, and they control whether eyes and hands get to touch our lives.