Via Orin Kerr at Volokh Conspiracy, the town of Henry, Tennessee has come to realize that its fortunes may be tied to a dog.

At the Henry Mayor and Board of Alderman meeting on Tuesday, board members decided to allow police chief David Andrews to institute a K9 program for the Henry Police Department.

Andrews told board members that the city is missing out on possible revenues that a K9 would bring. He said when you make traffic stops and the driver refuses to allow a search, their hands are tied. If a drug dog alerts on a vehicle, its gives officers probable cause to search a vehicle for drugs or illegal proceeds from drugs. More drug arrests and drug, cash, and vehicle seizures lead to more revenues coming in for the police department and city.

Radley Balko wrote at least they get points for honesty.  More likely naivete, at best, or cynicism, at worst.  They openly said what everyone involved has long known, but had the good sense to keep to themselves.

Unlike many who now complain bitterly about the impropriety of in rem forfeiture (the legal fiction where it is the property that offends the sovereign), I was there when it first came into vogue.  I recall to this day sitting in chambers of a federal district court judge in the early 80’s as he scoffed at the government’s attempt to forfeit property.  “The law abhors a forfeiture,” he bellowed, repeating the ancient maxim that guided the common law to that very day.

It was the last time I ever heard a judge utter those words.

In the early days, judges were resistent to forfeiture, and the government was relatively circumspect in its use.  It was an offshoot of the heady drug days, invoked to seize currency and property of bad guys who either went down hard or were smart enough to walk even though everybody knew they what they were selling.  Remember, nobody drove a pimp mobile to keep a low profile.

Over time, the old judges who only begrudgingly signed off on a forfeiture were replace with new judges for whom forfeiture was the norm. And it quickly became untethered from the covert weapon to strip drug dealers of their vast wealth to a public relations ploy, as used to take cars away from drunk drivers, and revenue raiser for backwaters like Tenaha. 

Whether this is attributed to remembering the rubric while forgetting the rationale, or as the conspiracy theorists would have it, a cynical abuse by the oligarchy to strip the citizenry of its property, doesn’t matter.  It was a fundamental abuse of process from the outset, but in the beginning it only affected scummy drug dealers and nobody really cared what happened to scummy drug dealers. And so the law developed, approving a system that gave the property owner essentially no chance of prevailing. 

Who cared about the drug dealers, so no one except the criminal defense lawyers spoke against it.  Shades of Martin Niemöller, because now they’re coming for you.

The trigger to the spoils system is the lovable, obedient dog.  It didn’t come about for that reason, but rather because society embraced things that had a distant smell of science and facilitated the accomplishment of our drug war goals.  Plus, dogs were cute and beloved, and thus above criticism.  So their historic abilities of smelling escaped prisoners and tracking edible critters was turned toward drugs. Dogs could smell drugs, and sniff out those evil drug dealers who concealed their nasty poison.

It was a marriage made in doggy heaven, the linking of dogs and forfeiture.  As Ilya Somin apparently discovered yesterday,

It’s worth noting that drug-sniffing police dogs are often highly inaccurate, because dogs want to please their human handlers and therefore may turn up a false positive because that’s the reaction they think the handler wants.

For those not living in caves, this is pretty much a basic feature of drug dogs.  They can be made to “alert,” an interesting word that reflects whatever the dog’s handler says it reflects (“I observed the hair on his left paw move laterally, which indicates the presence of narcotics…”).  Once a dog alerts, probable cause, by definition, exists.  False positives? Meh.  That crazy statistician talk.  The courts have long held that a dog alert establishes probable cause, and so it is. It’s so embedded that they carve it into the courthouse lintels in flyover states.

Some smart cookie put it all together.

The burden of proof for in rem forfeiture is probable cause – check
Dog hits, by definition, are sufficient to establish probable cause – check
Ninety percent of currency will give rise to a drug dog alert – check
The shiny new very valuable Mercedes is the instrumentality of the crime of transporting drug proceeds, and therefore forfeitable if the drug dog alerts to the currency in a driver’s or passenger’s wallet – check

Is this a great country or what?  Remember, the law surrounding this process was developed at a time when drugs were fairly rampant and no one except criminals and criminal defense lawyers gave a damn about what happened to their assets.

So the Mayor and Aldermen of Henry, Tennessee, have come to the epiphany that they can cash in on the nice folks driving nice cars through their community with some cash in the wallets.  And now people are bewildered about how such an insane, cynical, easily abused process could possibly exist in these United States of America?

First they came for the drug dealers, and nobody spoke up because they weren’t a drug dealer.  And they hated the drug dealers. And it was only right that the government should be able to seize their assets, and deny them any chance to fight.  After all, we were at war with drugs back then.  That’s how it happens.