When the Supreme Court granted certiorari to the Florida Supreme Court in Harris v. Florida, there were two possibilities. It could have been because they wanted to drive the final nail in the coffin of the dog sniff myth, seizing upon the Florida court’s revelation that we’ve been laboring under falsehood for decades that allowed the police, provided they brought a puppy with them, to have their way with us.
Or it could be what a unanimous Supreme Court, in an opinion by Justice Elena Kagan, last of Harvard law school, did. Despite what we now know about the flaws of the dog sniff myth, the pseudo-science nonsense behind its pretense of reliability, the statistical reality that passing a dog past the target of a search is no better than a coin toss, and often worse, that it’s subject to the cue of a handler that makes any right of privacy evaporate in the face of a doggy alert, the myth cannot be questioned.
If a dog says the police can search, then search they can.
As the opinion has been out for hours already, Jacob Sollum at Reason has already shredded its back end, while Orin Kerr at Volokh Conspiracy has handled the front. Somehow, the nine justices ignored the fact that the entire process by which a cute pup is elevated to a probable cause machine within a structure created, owned and managed by law enforcement.
The National Academies of Science saw through the mess, but the Supremes were blinded, perhaps by the doggy cuteness. But then, those scientists are so stuck on facts and proof and method that they are often blind to the adorable things that tug at Kagan’s heartstrings.
The newest associate justice had the opportunity to make excuses either way, about why dogs failed so miserably in the field, where the rights of citizens were put to the test, or how controlled and effective the dogs were tested in the controlled environment of Police Puppy Training Institute. She chose to favor the latter, and used her formidable rationalization skills to explain why reality to Americans whose privacy was lost wasn’t nearly as important as official certificates handed to dog handlers by police officials.
But all was not lost, Justice Kagan explained.
A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged.
It’s not as if the defense can do nothing about it, provided the trial occurs on a planet far, far away, where the fantasies of a scholar turned jurist take flight. In the imagination of a judge who has never dirtied her robes in the nasty trenches of a courtroom, defendant’s are fabulously flush with funds to fly in experts from far-away places to challenge this sniff. And the government always turns over all its inside canine certification secrets, without lies, omissions, conclusory assertions or deception.
Nothing ever goes wrong in a courtroom. That’s because our system is comprised only of wondrous folks whose concern for justice trumps all else. That’s why you, citizens of this great nation, trust it so completely and without reservation.
For quite a while, the question of whether a coin toss with the lovely face of a puppy on one side and the sad face of a citizen being searched on the other was on the table. There was science. There were statistics. There was the amorphous thing called probable cause, which offered what some Americans believes to be a greater than not chance that their rights would be honored even though the word “probable” in Washington was defined to mean something different.
In testing whether an officer has probable cause to conduct a search, all that is required is the kind of “fair probability” on which “reasonable and prudent [people] act.” Gates v. Illinois, 462 U. S. 213, 235. To evaluate whether the State has met this practical and common-sensical standard, this Court has consistently looked to the totality of the circumstances and rejected rigid rules, bright-line tests, and mechanistic inquiries. Ibid.
Whenever you see the words “common sense,” you can be assured of two things. First, that it is used to overcome a gap of logic that cannot otherwise to explained. Second, that you lose.
In this case, the court has embraced a practical approach to simultaneously avoid being rationally required to explain away the failings on the part of the government to demonstrate why the rights of people under the Fourth Amendment to be free of warrantless search and seizure should be eviscerated by a critter whose efficacy is an article of law enforcement faith, as well as avoid having to admit that it has failed for decades to prevent violations of the Constitution based on its love of junk science.
But more importantly, the use of dogs, whether real, by cue of their handlers, or simply by magic, has served the interest of our government so well for so long by providing a justification for searching people. Plus, dogs are so very cute, lovable and friendly. What kind of a justice would serve our nation who didn’t love dogs?
The issue is now conclusively decided, at least for the next generation. Don’t blame the dogs.
H/T for the title of this post, @BoatFloating, which reminded me of the old joke about the agnostic dyslexic insomniac was up all night questioning the existence of Dog.