There’s much to commend dogs.  They make fine pets, if you’re so inclined.  They can fetch dead critters if properly bred and trained.  Some are even considered attractive, in a canine sort of way.  But the mythology that surrounds their ability to sniff out drugs, long vaunted by police and the media to the point of near infallibility has got to go.  Pet them. Love them.  But don’t bet the Fourth Amendment on them.

At Reason, Greg Beato takes on man’s best friend.

When [Jonathan] Huynh was an eighth-grader at Oak Avenue Intermediate School in Temple City, a drug dog picked out his gym locker during a random search. When Huynh returned to the locker room at the end of class, a school administrator opened his locker in front of him and the rest of his classmates. The detection dog immediately lunged for the backpack and took hold of it, but when the administrator subsequently searched it, he found no drugs or other contraband. When the administrator and the canine team left, all the other students started laughing at Huynh. “I felt completely humiliated,” he later wrote on an online message board.

It’s unclear why Huynh felt humiliated.  The dog should have felt humiliated. It’s handler should have felt humiliated. Huynh should have felt vindicated, but that didn’t mean he wasn’t put at risk on so spurious a basis as a dog alert.

The myth of the dog isn’t just a matter of police lore and media doggy-love, but is established by Supreme Court precedent.

Such incidents have done little to damage the reputation of drug dogs among the animal lovers on the Supreme Court. In the 2005 case Illinois v. Caballes, the Court ruled that a canine sniff for narcotics at a traffic stop was not a search, even when there was no reasonable cause for suspicion. In writing the opinion for the majority, Justice John Paul Stevens further enhanced the power of drug dogs by claiming that even their false alerts are no cause for concern, because no “legitimate private information” is conveyed when they indicate the presence or absence of contraband material.

And who took on this dubious rationale?  None other than former criminal defense lawyers turned Virginia prosecutor extraordinaire, former CLTV star and blawging stalwart, Ken Lammers.

In a 2005 essay for the NYU Journal of Law & Liberty, criminal defense attorney Ken Lammers translated Justice Stevens’ dubious argument into plainer language: “It is as if Justice Stevens had upheld a warrant by arguing: ‘When Officer Smith lied to Judge Jones in order to get the warrant, the lie, in and of itself, did not reveal any legitimate private information, and therefore the warrant is valid.’ ”

There was no slipping any rhetorical nonsense past old Ken.  More to the point was the dog hits simply aren’t anywhere nearly as worthy of credit as courts have held.  Consider whether it would be equally acceptable for a cop to flip a coin in order to establish probable cause to search.  For a dog whose established ability to sniff out drugs runs in the typical 50% range, it’s no more likely to be accurate than a flip of a coin.  And I’m not even going to touch the “tainted money” dilemma here.

Yet the use of dogs as a facile means of circumventing the warrant clause is not only continuing, but eludes meaningful review because of the fact that dog sniffs, for the most part, are either not considered a search or not a sufficiently significant intrusion on privacy to warrant redress. 

In March 2010, the Third Court of Appeals of Texas held that a student who was forced to leave her backpack on her desk for a drug dog to sniff after she and other students vacated the room had not been victim of an unreasonable seizure because that seizure did not lead to a significant invasion of privacy. But a seizure doesn’t have to compromise someone’s privacy to qualify as unreasonable—it just has to be unreasonable. “Consider an officer walking up to you on the street and grabbing your briefcase out of your hand,” attorney Ken Lammers writes in an email to me. “He has seized it, but he has no idea what is inside it and therefore your privacy has not been infringed upon. [But] would a reasonable person believe your constitutional right against unreasonable seizure of your property had been violated? Of course he would.”

The use of drug dogs in schools is becoming increasingly pervasive, and is not only permissible, but implicates no 4th Amendment scrutiny.  This might be less problematic is the dog sniffs were as reliable as fabled, but when intrusive searches are the product of coin tosses dog hits, and are unassailable because of the reliability of a dog alert to establish probable cause to search, we’ve handed over enormous power over our children to a dog.

The rationale behind a dog alert not being a search isn’t quite as nutty as one might think.  if an odor emits from a sealed container, such that it can be smelled by a dog outside the container, then the privacy rights of the person whose container it is isn’t violated.  It’s analogous to putting an odor in plain sight, or speaking loudly enough for others to hear a crime being executed.  It makes some sense, but it similarly depends on the efficacy of the dog.

The confluence of a dog’s lack of mythical powers, the rationale that no privacy interests are violated by the false positive alerts since there are no drugs to be found as a result and the pervasive use of dogs as a quick and easy means of establishing probable cause, serve to make this one of the easiest means of circumventing the 4th Amendment. 

It seems to me that any dog handler with any skill could get his cute and cuddly buddy to alert at will, essentially providing carte blanche to search any darn time he wants.  And there’s nothing anyone could do about it.  There isn’t a judge in the nation who won’t uphold a search on probable cause based upon a dog alert.  Judges love dogs.

But then, no harm can come from a search based on a false dog hit.  Unless, of course, you have an issue with being subject to searches at will, or happen to have something else in your car, locker, briefcase, that you would prefer the cops not see.

H/T Ed. at Blawg Review