Friday, January 28, 2005

Through the Looking Glass on Searches

Russ raises another scenario I hadn't considered made possible by the Supreme Court's ruling in Caballes, which held that canine sniffs looking for drugs are not a search:
In my home county, the local sheriff there made a big splash by using drug-sniffing dogs to patrol the parking lots of the local shopping mall. When the dog alerted to a car, they noted which car it was, then waited for the car to leave the lot. They'd follow the car and wait for any little traffic violation -- using the turn lane for more than 100 ft, switching lanes without blinking for the mandated five seconds, travelling 2 MPH over the speed limit, a burnt-out license plate light, whatever -- then pull the driver over and pressure them into a search.
That's the nasty conversion of Caballes and Whren, which allows police to conduct "pretext stops," that Alaskablawg predicted -- and it's perfectly legal now. Gross. Meanwhile, Jeralyn emailed to pose a fascinating hypothetical. I gave her an off-the-top-of-the-head best guess, but I'd love to hear more learned thoughts on the matter:
do you think this ruling would apply to a case in which the drug dog alerted on money instead of drugs and there were no drugs in the car, only a large sum of cash. Would it support seizing the money?
The best I can say, I'm afraid, is, "I sure hope not." Today, post-Katz, Whren, Atwater and Caballes, Fourth Amendment interpretation has the quality of Humpty Dumpty's comments in Alice in Wonderland: 'When I use a word, it means exactly what I say it means, no more and no less.' When I say a search, it only means looking for things that are not illegal. Looking for things that are illegal isn't a search. With that kind of Orwellian approach, I simply do not feel able to predict what the Court would do in a particular case -- we've now passed through the looking glass.


shawn said...

Hey grits, check out this article, the title is "Deputies seize $170,000 found in 18-wheeler".

"As part of our special traffic enforcement unit, Deputy Keith Womack was westbound on I-12 near Interstate 55 when the 1994 Kenworth tractor-trailer passed him at about 11 p.m. Friday. The stop began with a violation for improper lane usage."

"The two in the truck told Deputy Womack and two other traffic unit patrols, who arrived as backup, their names and birthdays. These were checked through police computers, and the names had past histories of narcotics investigations," Edwards said. "That's when deputy Womack and Sgt. Jimmy Hyde gained permission to search the rig."

"The two had assistance from canine control Deputy Robert Harris and his drug-sniffing dog, Loki. The dog became interested in a wall panel at the forward end of the trailer that was blocked by a stack of empty pallets, Sgt. Hyde said."

I realize there are differences (big rig, couldn't 'produce' drivers' license, alleged consent to search) but I'm sure the dog sniff was inevitable given the drivers' "past histories of narcotics investigations".

What the article doesn't mention is that at the time of that traffic stop (and the entire weekend) we were having consistent gusts of 20-25 mph.

When I looked up this article to send to you, I found another article from 6 days earlier, the opening line is: "District Attorney Scott Perrilloux's request for an additional $170,000 should be taken seriously by the Parish Council." (both links below)

A final note, I realize all dogs aren't given the exact same training, but I thought that the K-9's were 'multipurpose'. I assume that the dogs found in the airport can detect drugs, cash & explosives. Am I wrong? I know that the K-9's at local departments are often sent away for training. I further assume that if they can get a dog trained to search for as many possible forms of contraband as possible (more bang for the buck) rather than limiting them to just one (to pass the newly minted constitutional test).

Gritsforbreakfast said...

Thanks Shawn! Though I don't have a source to hand, my understanding is that dogs have to be trained for either drugs or explosives, but not both, and Pete at Drug War Rant said the same thing today. The dog isn't actually looking for drugs, by the way. The handler trains the dog by wrapping dope in the dogs favorite toy, often knotted into a towel that the dog likes to play tug of war with. So when the dog sniffs you, it's not hoping to accuse you, but looking for its towel because it wants to play!

I'll give the cops in your story this, though -- the dog alerted inside the trailer toward the front, so I'm not sure the gusting winds would have made a difference. The other big difference is that the guys apparently CONSENTED to the search. Why people do that I'll never know. Conceivably they might not even have known what's in there, but because they consented to a search, they're in trouble now. Grits readers be forewarned: ALWAYS say no to police searches.