That’s one way of looking at it. But even if you are neither a lawyer nor a super-libertarian, you might wonder 1) how often this sort of thing happens, 2) how it came to be that police can get permission from a dog to rifle an innocent man’s belongings, and 3) whether that state of affairs is consistent with the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” The answers, in brief, are 1) fruitless searches based on dog alerts happen a lot more often than commonly believed, 2) dogs acquired this authority with the blessing of credulous courts mesmerized by their superhuman olfactory talents, and 3) this dog license is hard to square with the Fourth Amendment, unless it is reasonable to trust every officer’s unsubstantiated claim about how an animal of undetermined reliability reacted to a person, a suitcase, a car, or a house.
All of these issues come together in two cases the U.S. Supreme Court heard a few weeks after Bob Burns was pulled over. Florida v. Harris raises the question of how a judge knows that a dog’s alert is reliable enough to justify a search. Florida v. Jardines asks whether police need a warrant to use a drug-sniffing dog at the doorstep of a home. These cases, which will be decided by this summer, give the Supreme Court an opportunity to reconsider its heretofore unshaken faith in dogs, or at least limit the damage caused by the amazing canine ability to transform hunches into probable cause.
The foundational text of the courts’ canine cult is U.S. v. Place, a 1983 decision involving an airport search that found a kilogram of cocaine in a suitcase to which a dog had alerted. The Supreme Court unanimously concluded that the Drug Enforcement Administration (DEA) violated the Fourth Amendment by keeping the bag for 90 minutes before presenting it to a dog. But instead of stopping there, Justice Sandra Day O’Connor, in a majority opinion joined by five of her colleagues, gratuitously ventured into an issue that had not been addressed by the parties to the case and did not need to be resolved for the Court to decide whether the seizure and search were legal. O’Connor opined that “a ‘canine sniff’ by a well-trained narcotics detection dog…discloses only the presence or absence of narcotics” and “does not expose noncontraband items that otherwise would remain hidden from public view.” Because of this specificity, O’Connor concluded, “exposure of respondent’s luggage, which was located in a public place, to a trained canine…did not constitute a ‘search’ within the meaning of the Fourth Amendment.”
Two decades later, when the Court extended this principle to cars in Caballes, dissenting Justice David Souter noted that O’Connor’s conclusion “rests not only upon the limited nature of the intrusion, but on a further premise that experience has shown to be untenable, the assumption that trained sniffing dogs do not err.” In reality, Souter said, “the infallible dog…is a creature of legal fiction.” Souter cited examples of dogs accepted as reliable by courts that had error rates of up to 38 percent. He added that “dogs in artificial testing situations return false positives anywhere from 12.5 to 60 percent of the time.”
If anything, Souter gave drug-sniffing dogs too much credit. A 2011 Chicago Tribune analysis of data from suburban police departments found that vehicle searches justified by a dog’s alert failed to turn up drugs or drug paraphernalia 56 percent of the time. In 1979 six police dogs at two public schools in Highland, Indiana, alerted to 50 students, only 17 of whom possessed contraband (marijuana, drug paraphernalia, and cans of beer), meaning the false positive rate was 66 percent. Looking at the performance of an Illinois state police K-9 team during an 11-month period in 2007 and 2008, Huffington Post reporter Radley Balko found that the dog sniffed 252 vehicles and alerted 136 times, but 74 percent of the searches triggered by those alerts did not find measurable amounts of illegal drugs. Similarly, a 2006 study by the New South Wales Ombudsman in Australia, an independent agency analogous to the U.S. Government Accountability Office, looked at more than 10,000 searches of people triggered by dog alerts and discovered that 74 percent of them found no illegal drugs. More-recent data from New South Wales indicate an even higher error rate: 80 percent in 2011.
Those numbers look almost respectable compared to the results of a 1984 operation in which Florida state police stopped about 1,330 vehicles at roadblocks and walked dogs around them. If one dog alerted, another was brought in, and vehicles were searched only if both dogs indicated the presence of illegal drugs. That happened 28 times, but those searches yielded just one drug arrest. In other words, even when two dogs both signaled the presence of drugs, they were wrong 96 percent of the time.
What is going on when dogs alert and no drugs are found? Police and prosecutors usually claim these are not really false alarms because the dog must have detected otherwise imperceptible drug traces left on clothing, cars, or personal possessions. “It’s a convenient excuse,” says Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is an expert on dogs’ olfactory capabilities. While dogs can indeed smell traces of drugs that are no longer visibly present, he says, “no one knows how big that reality is.” When police use drug residue as an all-purpose explanation for what appear to be erroneous alerts, Myers says, “the first term that comes to mind involves a male bovine and the ingestion of grass.”
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Alternatively, Jones says, “because [the handler] feels the guy is guilty, he just says the dog alerted and uses that as a pretext to search.” Myers recalls a case on which he worked as a defense consultant where an officer claimed a dog alerted as he walked it around a suspect’s car. In the dash-cam video of the stop, the dog was not visible, but the officer was. “When I had him questioned about how long it took the dog to alert, he said a few seconds,” Myers says. “So there should have been at least a two-second pause in front of the car. Nope. There was no pause.”
Jeff Weiner, a prominent Florida defense attorney who frequently deals with drug-sniffing dogs, says he commonly sees videos in which “someone will stand in front so you can’t see the dog, and then you’ll hear them say, ‘Oh, the dog just alerted.’ And then they’ll step away.” Weiner adds that many police departments have stopped recording K-9 teams at work “because they realized that the dogs don’t alert when the cops say they alert.” Without video, he says, “they can say whatever they want to say, and there’s no way to challenge it.”
Assuming Aldo really did alert to Harris’ truck, he might have been reacting to Wheetley’s suspicions. “If someone is acting quite twitchy and nervous,” says Myers, “that evokes suspicion on the part of the handler, which evokes certain behaviors that may cause the dog to alert.…I’ve done frame-by-frame analysis of video tapes, and it’s interesting when the handler stops before the dog does. You think it might have been a cue—not necessarily intentional.”
A 2011 study led by the University of California at Davis neurologist Lisa Lit, reported in the journal Animal Cognition, shows how powerful a handler’s cuing of his dog can be. Lit and her colleagues had 18 handlers walk their police dogs through four rooms where they were told drug or explosive scents might be hidden but where in fact there were no target substances to be found. Each team went through each room twice, for a total of 144 sweeps, and generated 225 false alerts. The alerts occurred most frequently near markers that the handlers were told indicated the presence of scents; they were even more likely at those spots than at unmarked locations where the researchers had hidden Slim Jims and new tennis balls as distractions. “Human more than dog influences affected alert locations,” Lit and her colleagues concluded. “This confirms that handler beliefs affect outcomes of scent detection dog deployments.”
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Dogs that are rewarded for unconfirmed alerts may begin responding to the wrong stimuli. A dog “might just be interested in something, which could be seen as a kind of alert by the handler,” says Myers, “so he rewards him for it. And pretty soon he’s going to be searching for ham sandwiches.”
Challenging the reversal of Harris’ conviction before the U.S. Supreme Court, the state of Florida (joined by the Obama administration) argued, in effect, that judges should automatically accept a police dog as reliable. “The handlers themselves are going to be in the best position to know the dogs and evaluate their reliability,” Gregory Garre, the lawyer representing Florida, told the Court in October, “and they have a strong incentive to ensure the dogs are reliable.” So according to Garre, if a cop trying to justify a search vouches for the reliability of a dog whose alert supposedly justifies that search, there is no reason to question him.
Garre argued that “the most important thing” in judging a dog’s reliability “is successful completion of proficiency testing.” How does a judge know a dog has successfully completed proficiency testing? Because the police say so. When training is done by “actual police departments,” Garre said, “this Court ordinarily would presume regularity.” And what constitutes “regularity” when there are no uniform standards? “We would ask whether or not the dog successfully completed training by a bona fide organization,” Garre said. “We don’t think it’s an appropriate role for the court to delve into the contours of the training.…You would have to accept it…on its face.”
And why wouldn’t you? After all, Justice Antonin Scalia observed, “if the reasonableness of a search depended upon some evidence given by a medical doctor, the court would not go back and examine how well that doctor was trained at Harvard Medical School.” Then again, Harvard Medical School, unlike a police department’s dog training program, is accredited, based on uniform national criteria, by the American Association of Medical Colleges, and its graduates must satisfy objective, transparent tests to be licensed and certified in their specialties. Furthermore, unlike police dogs, doctors can talk, which means they can testify and be cross-examined regarding their qualifications and the reasons for their conclusions.
Scalia seemed genuinely flabbergasted not only by the idea that a dog might be inadequately trained but also by the suggestion that police might exaggerate a dog’s reliability. “Why would a police department want to use an incompetent dog?” he asked Glen Gifford, the assistant public defender representing Harris. “What incentive is there for a police department?” Gifford patiently explained that “the incentive is to acquire probable cause to search when it wouldn’t otherwise be available.”
It should be obvious why a police officer might value a dog that alerts promiscuously, giving him license to search anyone he deems suspicious. “It’s a search warrant on a leash,” Myers says. “It’s such an enormous back-door entry into search and seizure without a warrant.”
A brief filed by the Institute for Justice in Harris highlights another motive: If a dog’s alert justifies a search, it can also justify seizure of property allegedly tainted by illegal drugs. “There are countless examples of police seizing large sums of cash based on nothing more than a positive dog alert,” the brief notes, even though contamination of currency with cocaine and other drugs appears to be pervasive. Since police departments typically share the proceeds from civil forfeiture, they have a direct financial interest in dogs that facilitate it.
Yet few of the justices seemed inclined to elaborate on the distinction between “a well-trained narcotics detection dog,” entrusted with the power to authorize searches and seizures, and any old dog grabbed from the pound by a police department and presented as such. Jeff Weiner, the Florida defense attorney, says, “I only hope the Court will realize how incredibly naïve they have been and how they have given law enforcement a green light to do away with the Fourth Amendment merely by uttering the magic words, ‘My dog alerted.’ ”
Judges around the country commonly accept a dog’s alert, by itself, as sufficient basis for a search, but the Supreme Court has never explicitly said it is, although passing comments in a couple of decisions can be read that way. Furthermore, the Court has always resisted precisely defining probable cause, the standard for issuing a warrant (or for upholding a car search, which can be conducted without a warrant but is supposed to meet the same test). Probable cause, the Court has said, means there is “a fair probability” that evidence of a crime will be discovered. It is not clear how reliable a dog must be to satisfy that standard. A 4 percent chance of finding contraband based on a dog’s alert, as in the Florida roadblock operation, presumably would be too low. What about a 20 percent chance, as in the latest data from New South Wales, or a 44 percent chance, as in the Chicago Tribune study?
“Who determines when a dog’s reliability in alerting has reached a critical failure number?” Justice Sonia Sotomayor asked during the oral arguments in Harris. “I’m deeply troubled by a dog that [accurately] alerts only 12 percent of the time.…That seems like less than probability.” Gifford observed that “in the lower courts, once you get below 50 percent, probable cause is much less likely to be found.” The 2006 Australian study found that the accuracy of 17 police dogs used to sniff out drugs on people ranged from 7 percent to 56 percent. This wide variation underlines the importance of assessing the ability of each dog-and-handler team on an individual basis, rather than accepting blanket assurances that all dogs and handlers have been properly trained.
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The notion that a dog sniff is not a search and the notion that a dog sniff justifies a search are both based on overblown notions of canine capabilities, a fact that makes the implications of those ideas all the more troubling. A cop already has the authority to stop cars for minor (and possibly imagined or invented) traffic violations that people routinely commit. If you give him a dog he can deploy during any stop to justify a search, a dog whose alerts may be imagined, invented, or triggered by deliberate or subconscious cues, he now has the ability to search cars at will.
In Caballes, the decision that gave police this ability, Justice Souter warned that “an uncritical adherence to Place [which held that a sniff is not a search] would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks.” During the oral arguments in Harris and Jardines, Justices Sotomayor and Ginsburg likewise worried aloud about police taking dogs from door to door in an apartment building or from house to house on a street. Garre, Florida’s lawyer, argued that limited resources and “community hostility” would discourage such operations.
But they are already happening. In 2011, for instance, The Roanoke Times reported that police in Pulaski, Virginia, had been using dogs to randomly search for drugs in apartment complexes “for a couple of years.” Last spring the Fargo Housing Authority in North Dakota announced plans for similar sweeps. Students as young as 6 have been randomly subjected to dog sniffs at public schools throughout the country for decades.
Such olfactory dragnets would be disturbing enough with dogs that are 100 percent accurate. But with actual dogs, which could be wrong most of the time or even nine times out of 10, they are little more than pretexts for police to search wherever and whenever they please.
