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Drug Sniffing Dogs Create Probable Cause Where None Existed Says Supreme Court

The Supreme Court on Tuesday sided with a drug-sniffing German shepherd named Aldo, above, in ruling that police do not have to extensively document a dog's expertise to justify relying on the animal to search someone's vehicle.

A search with no probable cause by a police dog that turns up evidence creates probable cause, thus justifying the search, the Supreme Court ruled Tuesday.

USA Today (“Supreme Court rules in favor of drug-sniffing dog“):

The high court ruled unanimously that a Florida police officer’s use of a drug-sniffing dog to search a truck during a routine traffic stop was appropriate, even though the drugs found were not what the pooch was trained to detect.

Justice Elena Kagan wrote the unanimous opinion for the court – and for Aldo, a retired drug-detection dog. “The record in this case amply supported the trial court’s determination that Aldo’s alert gave (Canine Officer William) Wheetley probable cause to search the truck,” she said.

The case was one of two involving drug-sniffing dogs heard on Halloween. In the other case, a dog was used to sniff for drugs on the doorstep of a private home. While the court did not decide that case Tuesday, justices were far more skeptical of the legality of that search during oral arguments.

[...]

On the other hand, Scalia and Justice Anthony Kennedy appeared to align with the court’s four liberals against Franky, who detected marijuana in a Miami grow house only after spending several minutes sniffing around the front door. Kagan called that “a lengthy and obtrusive process.” Justice Ruth Bader Ginsburg said it could lead to random searches of “any home, anywhere.”

Both cases hinge on the Fourth Amendment’s protection against unreasonable searches — a protection the high court held in high esteem during its last term, when it ruled unanimously that police should have obtained a warrant before placing a GPS device on a drug suspect’s car.

That individuals have a lower expectation of privacy in their cars than their homes is a long-established principle. Still, the notion that police have a right to search a car for drugs—and make no mistake, that’s what bringing a dog trained to sniff out drugs is: a search—without probable cause is outrageous.

I’ve got no sympathy for people who endanger the public safety driving stoned—much less those who do it in inherently dangerous commercial trucks. But, absence erratic driving or other indications that the operator was impaired, the Constitution rather clearly requires a search warrant issued by a magistrate.

The Supreme Court has over the years carved out enough exceptions to the Fourth Amendment to render it a dead letter. Vehicular searches have long been among them, on the grounds that the expectation of privacy is low and that the mobility of the vehicle creates a major risk of the evidence being moved and destroyed before a warrant can be issued. Further, the small confines of the interior make it easy for an officer to spot contraband–creating probable cause–in a way that’s not possible in a house.

But on what grounds do police have a right to introduce dogs to search that which is not in plain sight, especially without some indication that drugs are present? It reverses the entire basis of the Fourth Amendment. And, yet, none of the Justices seem offended by that fact.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. MBunge says:

    “Still, the notion that police have a right to search a car for drugs—and make no mistake, that’s what bringing a dog trained to sniff out drugs is: a search—without probable cause is outrageous.”

    So, if a trained human can detect a drug smell coming out of a car, that’s probable cause. When a dog that’s been trained to do the same thing does it, it’s not? What if police regularly employed handheld devices that could detect drug odors? They shouldn’t be allowed to walk around your car with one?

    Mike

    Like or Dislike: Thumb up 6 Thumb down 8

  2. Mikey says:

    There is no aspect of American law that has damaged 4th Amendment protections more than the “war on drugs.”

    Sadly, and ironically, that damage has contributed nothing at all to actually “winning” it. We’ve wrecked the 4th Amendment and gotten nothing in return.

    Highly-rated. Helpful or Unhelpful: Thumb up 27 Thumb down 2

  3. Moosebreath says:

    James,

    “But on what grounds do police have a right to introduce dogs to search that which is not in plain sight”

    Because the term “plain sight” is not limited to only the sense of sight, but all of the senses. In this case, they viewed it as being in “plain smell”, by virtue of the dog being able to detect it. Or what MBunge said.

    Like or Dislike: Thumb up 3 Thumb down 2

  4. Boyd says:

    I agree with Mike, James: You’ve got it backwards. When the aroma of the illegal drugs escape into the air surrounding the vehicle, the dog is not intruding into private space. The culpable material is releasing evidence that it exists into the air outside the vehicle.

    Like or Dislike: Thumb up 3 Thumb down 5

  5. Mike says:

    @MBunge: I agree. I don’t see how SCOTUS got this wrong. If a police officer walks up to you during a legitimate stop and smells alcohol or MJ wafting from your car, there is PC to do an additional search. If he brings a dog with him who does the same then it is out of bounds? If the cop were holding a magic sniffer device, would this be okay? As long as the dog is not allowed in the car and the initial stop was legitimate or part of a checkpoint, I don’t see the issue.

    Like or Dislike: Thumb up 3 Thumb down 3

  6. Mikey says:

    @Boyd: Except that didn’t happen in this case. The dog sniffed the door handle and alerted to something on it. There was nothing in the air outside the vehicle. There wasn’t even anything in the vehicle that the dog was trained to detect.

    Like or Dislike: Thumb up 6 Thumb down 1

  7. Tsar Nicholas says:

    What’s sort of funny about this post — in the vein of a tragicomedy — is that it’s a tautology within a tautology of mistaken and anachronistic presumptions about the 4th Amendment.

    The only reason why so many on the left and so many within the confines of the academe (BIRM) think that a warrant is a condition precedent to a lawful search is because the SCOTUS screwed up a whole bunch of its 4th Amendment rulings. Had that Amendment not been twisted out of whack in the first instance we wouldn’t have needed entire binders of opinions walking back the putative warrant “requirement” with exceptions and such.

    The 4th Amendment requires searches to be “reasonable” to be legal. Separately it requires that warrants only be issued upon probable cause. The latter never was intended to be a precedent condition to the former. Otherwise the language would have been written quite differently.

    In any event, that truck case is sort of a dog bites man scenario, given that the proper result there was so obvious even Kagan, Breyer, Ginsburg and Sotomayor were able to figure it out. The Halloween doorstep case, however, is a different can of dog food. But not because of the unfortunate warrant vs. no warrant issue. Because what’s “reasonable” in connection with a physical residence is not necessarily the same as what’s “reasonable” after a traffic stop of a moving vehicle.

    Like or Dislike: Thumb up 2 Thumb down 9

  8. C. Clavin says:

    Here’s where I think the line is drawn…at least for me.
    If the dog is walking on public property…the road around the truck or car…and can detect the odor…then it’s fine.
    When the dog is walked onto private property in order to sniff at the doorstep of a house…then I think you have a problem.
    The issue for me comes down to public/private property.

    Zooming out to 50,000 feet…I’m far more concerned about things like this than I am about the right of someone to buy 30 round clips at Walmart for $8. And that is something that gets little discussion. We tend to be fat dumb and happy as a bunch of our rights are being abridged little by little…but even the slightest common sense regulation of guns sets everyones hair on fire.
    That is a very dangerous myopia.

    Like or Dislike: Thumb up 6 Thumb down 5

  9. ratufa says:

    One thing to keep in mind is that whether or not a drug-sniffing dog gives a positive reaction for drugs can be strongly influenced by cues given by the handler, which is one reason why applying this ruling to people’s homes is so very problematic.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 0

  10. Rafer Janders says:

    Who’s to say that the dog “alerted” other than the police officer who wants to conduct the search? Especially in car searches, where the suspect is usually sitting inside the car, behind the wheel, and the dog is out of site at the trunk, and there’s no independent third-party verification that the dog actually did or didn’t smell something?

    Police officers will routinely lie about having probable cause. This just gives them another plausible lie to add to their arsenal.

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 0

  11. Barry says:

    @MBunge: “So, if a trained human can detect a drug smell coming out of a car, that’s probable cause. When a dog that’s been trained to do the same thing does it, it’s not? What if police regularly employed handheld devices that could detect drug odors? They shouldn’t be allowed to walk around your car with one?”

    It’s been repeatedly demonstrated that (a) dogs respond to their handler’s cues and (b) that many handlers are not trustworthy.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  12. gVOR08 says:

    @C. Clavin: And if we develop instruments that can sniff the marijuana in your dresser drawer from the public sidewalk?

    Like or Dislike: Thumb up 3 Thumb down 0

  13. Ben says:

    What you are all missing here is that the dog didn’t actually smell any drugs in the car. Because there WASN’T any illegal drugs in the car for the dog to smell. What happened here is one of two things, both of which are problematic:

    1.) the dog alerted because the officer cued him to (either consciously or not). This happens ALL THE FREAKING TIME, and yet the SC seems completely oblivious to the fact of it, and to the implication. Which is that a cop can use a dog as a failsafe to get PC whenever the hell he wants. And if that is allowed, then why even have a 4th amendment?

    2.) the dog alerted to an odor of drugs that was leftover from a previous contact. This is also a problem because PC means that there is a fair probability that evidence of a crime is present. NOT that it was present days ago. If dogs can’t differentiate between the smell of drugs there now and the smell of drugs several days ago, then they are going miles beyond the intent of probable cause, and changing it’s definition to “fair probability that evidence of a crime is either present, or was present at some indeterminate time in the past”. In which case, again, what’s the point of a 4th amendment

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  14. Mike says:

    @C. Clavin: This is ‘Merica. It is a god given right to own 30 round clips and buy them for 3 for $12 or a 100 pack of Twinkies for $3.

    Like or Dislike: Thumb up 2 Thumb down 4

  15. Argon says:

    What if police use a dowsing rod? Is that OK?

    Your detection method must both be certified and employed properly. There are many cases where a dog handler led the dog to display its ‘detection response’, when he wanted it to. This case is a bit dodgy, IMHO. See also: Clever Hans.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  16. James Joyner says:

    @MBunge: I think this is fundamentally different. The officer has a legitimate function that’s predicated on probable cause. He’s seen a violation and has to approach the driver to ask questions, get the license and registration, and issue a citation or warning. If he happens to detect the odor of marijuana or see paraphernalia on the seat, that’s probable cause.

    What’s the dog doing there? He has no role other than to conduct a drug search. For which there was no probable cause.

    Like or Dislike: Thumb up 14 Thumb down 0

  17. PD Shaw says:

    absence erratic driving or other indications that the operator was impaired, the Constitution rather clearly requires a search warrant issued by a magistrate.

    James, you’re basically setting up a situation where the police should impound a vehicle for the amount of time that it would take to get a warrant from a magistrate to search the vehicle. This itself is a type of inconvenience that the Fourth Amendment was supposed to protect against.

    If the magistrate would be expected to issue the search warrant anyway (as suggested here by the votes of nine SCOTUS justices) the additional procedural hurdle would appear to be a pure fetish.

    Like or Dislike: Thumb up 1 Thumb down 2

  18. Jack says:

    Too often officers will ask the occupant of a vehicle if it’s OK to search said vehicle. Just because the vehicle owner asserts a 4th amendment right to be secure in their posessions and responds negatively to the officers request does not mean that there is something in the vehicle that is illegal. Unfortuantely, that is what the officer assumes. The officer then calls for a drug dog if available, and has said dog stiff around the vehicle in order to “get around” the denial to search. Because the cop wants to search, whether the dog alerts or not, the police will say that the dog alerted to something as a way to force a search. Considering studies have suggested that false positives account for between 56% and 75% of all dog justified searches, I believe this is just an end run around the 4th amendment.

    http://www.rawstory.com/rs/2011/01/06/false-positives-police-canines-searches/

    Like or Dislike: Thumb up 14 Thumb down 0

  19. C. Clavin says:

    @ gVOR08…

    “…And if we develop instruments that can sniff the marijuana in your dresser drawer from the public sidewalk?…”

    Then I can probably also develop a method of masking the odor. An awlful lot of pot gets shipped and never detected by dogs.
    Don’t get me wrong…as one who partakes…I’m sympathetic to the plight of those who partake.
    I come at this from the point of reference of a photographer…which is how I earned a living for 15 years. I can photograph anything I want…that is…if I can see it from the public way. If you suddenly say the cop can’t walk his dog on the public way…it raises a whole slew of issues.
    The real answer here is to eliminate stupid laws…like the marijuana prohibition.
    The small/big Government argument is a false dicotomy….we need smart Government. Marijuana prohibition is stupid Government.

    Like or Dislike: Thumb up 8 Thumb down 0

  20. PD Shaw says:

    @Ben: I would consider “200 loose pseudoephedrine pills,
    8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze, and a coffee filter full of iodine crystals” to be evidence of a crime. And indeed he was convicted of possession of pseudoephedrine for use in the manufacture of meth.

    Like or Dislike: Thumb up 1 Thumb down 3

  21. Ben says:

    And for those of you think that the police handlers are above soliciting false positive alerts from their dogs, take a gander at the UC Davis study:

    http://blog.norml.org/2011/02/04/drug-dogs-false-alert-over-200-times-in-uc-davis-study/

    Like or Dislike: Thumb up 9 Thumb down 0

  22. Ben says:

    @PD Shaw:

    None of those items are things that drugs dogs are trained to alert on, as none of them are illegal, and none of them smell like cooked methamphetamine.

    Again, either the handler cued the dog, or the dog smelled “residual odor” on the handle of the door. Those are the only two possibilities.

    Like or Dislike: Thumb up 6 Thumb down 0

  23. @MBunge:

    The problem is we have no way of determining whether the dog is alerting because it actually smells drugs, or it’s just figured out that when its handler starts walking it around a car that its supposed to alert. Studies have shown that in field conditions, drug dogs have a false positive rate of 50-80% (that is, 80% of the time the dog says there are drugs, the police don’t find anything). The question isn’t whether it’s okay to look for drugs by testing the emissions from a car; it’s how probable cause can be generated by a procedure that in practice simply doesn’t work.

    Like or Dislike: Thumb up 11 Thumb down 0

  24. Rafer Janders says:

    @MBunge:

    So, if a trained human can detect a drug smell coming out of a car, that’s probable cause. When a dog that’s been trained to do the same thing does it, it’s not?

    How do we know that the dog actually smelled something, rather than the handler coaxing it to alert, or the dog not actually smelling anything and the handler lying that it did? It’s not as if we can put the dog on the stand to allow the accused to confront his accuser, after all.

    What if police regularly employed handheld devices that could detect drug odors?

    With a device, it could at the least be subject to independent third-party verification, lab testing, etc. With a dog, there is no way to actually confirm post facto whether the dog did or did not detect something other than the policeman’s word. It’s purely subjective.

    Like or Dislike: Thumb up 7 Thumb down 0

  25. PD Shaw says:

    @Ben: His possession of pseudoephedrine was illegal; it was contraband and evidence of the crime for which he was convicted. I fail to see the importance of the dog detecting meth, when all that was found were the ingredients to manufacture meth. The dog detected an odor that was directly related to the crime that he was convicted of.

    Like or Dislike: Thumb up 0 Thumb down 6

  26. OzarkHillbilly says:

    I am ambivalent. I can see good arguments on both sides. That said,

    @Barry:

    It’s been repeatedly demonstrated that (a) dogs respond to their handler’s cues and (b) that many handlers are not trustworthy.

    Is not a good argument. Sure there are some bad handlers out there, but I have to ask: Have you ever met a trustworthy meth head?

    Like or Dislike: Thumb up 1 Thumb down 13

  27. mantis says:

    @OzarkHillbilly:

    Is not a good argument. Sure there are some bad handlers out there, but I have to ask: Have you ever met a trustworthy meth head?

    Suspects don’t need to be trusted. The police do.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 0

  28. Pete S says:

    Remember too that there is more involved than a driver trying to hide drugs. Once “probable cause” has been established even carrying a lot of cash can be treated as evidence of involvement with drugs even if no drugs are involved. The cash can then be confiscated requiring a long and expensive process to get it back.

    Like or Dislike: Thumb up 6 Thumb down 0

  29. Rafer Janders says:

    @OzarkHillbilly:

    Is not a good argument.

    Sure it’s a good argument. Policemen routinely lie on the stand and perjure themselves themselves, claiming to have had probable cause, or to have found evidence, where none actually existed.

    The danger in these drug dog cases is that the dog allows the police to have an unearned veneer of believability. They claim not that they smelled something, but that the dog did, and well, we all know how accurate a dog’s sense of smell is, so we assume the dog must be right.

    However, OTHER THAN THE POLICEMAN’S WORD, there is actually no independent, third-party, verifiable proof that the dog did or did not smell something. Multiple studies have shown that drug dogs produce many false positives, or respond (subconsciously or not) to their handlers’ prompts.

    Like or Dislike: Thumb up 12 Thumb down 0

  30. rudderpedals says:

    All of the drug exceptions to the 4th amendment started with the Rehnquist court and, ISTM, prepared the battlefield for hollowing out the 4th and 5th amendments in other ways with the “patriot” act exceptions to the wiretap act, ECPA, etc.

    Rule of unintended consequences strikes again.

    Like or Dislike: Thumb up 7 Thumb down 0

  31. Mike says:

    @Rafer Janders: I think we should go the English route to stop these sneaky cops and start putting the dog on the stand to settle this issue. Put Sparky under oath:
    http://www.huffingtonpost.com/2013/02/19/police-dog-witness-statement-uk_n_2717815.html

    Like or Dislike: Thumb up 1 Thumb down 0

  32. OzarkHillbilly says:

    @mantis:

    Suspects don’t need to be trusted. The police do.

    Your point is? Because I fail to see it. We do trust the police…. up to a point. Barry was saying that because a few are bad (or just honestly mistaken) we should trust none of them. Are you agreeing with him?

    For my own part, I will side with the cops. I have had to deal with a few meth heads and there is no court of appeal with them.

    Like or Dislike: Thumb up 0 Thumb down 4

  33. John H says:

    @gVOR08:

    Also, there is a small but non-zero chance that particles from your stash will manifest outside of any containment. I’m afraid ol’ #4 isn’t going to stand up well to Quantum Enforcement Devices.

    Like or Dislike: Thumb up 2 Thumb down 0

  34. Ben says:

    @PD Shaw:

    @Ben: His possession of pseudoephedrine was illegal; it was contraband and evidence of the crime for which he was convicted. I fail to see the importance of the dog detecting meth, when all that was found were the ingredients to manufacture meth. The dog detected an odor that was directly related to the crime that he was convicted of.

    I’m saying the dog could not have possibly detected an odor that had anything to do with what they found in his car. Thus, it was a bullshit alert. That’s my problem with it. What odor did the dog detect that was related to what they found in his car?

    Like or Dislike: Thumb up 8 Thumb down 0

  35. OzarkHillbilly says:

    @Rafer Janders:

    Sure it’s a good argument. Policemen routinely lie on the stand and perjure themselves themselves, claiming to have had probable cause, or to have found evidence, where none actually existed.

    OK Citation please. And just asserting that it happens from time to time (which I freely admit) is not good enough. It is a stupid argument to make because meth heads are not more trustworthy than the police.

    Remember, the police at least are constrained by the courts. Whether it is enuf or not is open to debate. I take no position one way or the other on that question. But I am going to put my trust in the system with all it’s checks and balances and that includes the agents of that system. Not because they are 100% trustworthy, but because there is a system that is supposed to keep the bad actors in check.

    Is it perfect? No. Hell no. Yes some times results are less than desirable. But you can either go with the system we have, while trying to make it better, or… Move to Idaho. I hear they have this great little development up there. Begins with a “C” I think….

    Like or Dislike: Thumb up 0 Thumb down 1

  36. JKB says:

    It’s simple we’ll just go Russian and all install cameras and microphones in our cars. Then the sniffing can be judged as it happened in court.

    The porch sniff is just a problem for poor people and urban folks who don’t know enough to get some distance between them and the sidewalk. Along with a fence and a gate to signal non-public access.

    Like or Dislike: Thumb up 2 Thumb down 0

  37. Septimius says:

    If drug dogs are so fallible that they have a false positive rate of 50% or more, then an alert, by itself, should not be grounds for probable cause. Doesn’t matter if the dog is on a public street, on private property, or sitting on Charlie Sheen’s lap.

    Like or Dislike: Thumb up 13 Thumb down 0

  38. Ben says:

    The false positive rate can be a lot higher than even that. In that UC Davis study, they set it up so that there were no drugs anywhere, so ANY alert would be a false positive. And they also hid food for the dogs and put in false visual cues for the handlers to try to throw both of them off.

    And what happened? Over 200 false alerts. But the great majority of the false alerts were in areas that the handlers were told there would be drugs. The dogs actually did ok in not alerting to the food most of time.

    But it showed, without a doubt, that if a handler thinks there are drugs somewhere, they’re going to get the dog to alert in that area so they can search it every damned time.

    Like or Dislike: Thumb up 10 Thumb down 0

  39. JKB says:
  40. Console says:

    Hah, even Jay-Z predicted this one.

    “I ain’t pass the bar, but I know a lil bit, enough that you won’t illegally search my shit”

    “We’ll see how smart you are when the canines come”

    Like or Dislike: Thumb up 4 Thumb down 0

  41. mantis says:

    @OzarkHillbilly:

    Your point is?

    You seemed to be saying that yes, some police dog handlers are untrustworthy, but so are criminals, so it evens out. I disagree. If that’s not what you were saying, then nevermind, but it sure seemed that way.

    Barry was saying that because a few are bad (or just honestly mistaken) we should trust none of them. Are you agreeing with him?

    No, I’m saying that we hold law enforcement to a higher standard than we do criminals (obvious, I know).

    For my own part, I will side with the cops. I have had to deal with a few meth heads and there is no court of appeal with them.

    Why do you keep referring to criminals as if they were performing a public service that you find lacking?

    Like or Dislike: Thumb up 6 Thumb down 0

  42. Rafer Janders says:

    @OzarkHillbilly:

    OK Citation please.

    I’ve worked as a criminal defense attorney in the past. I’ve seen them routinely lie about matters which I knew as a fact were lies. This happened all the time. All the time.

    And just asserting that it happens from time to time (which I freely admit) is not good enough. It is a stupid argument to make because meth heads are not more trustworthy than the police.

    A meth head’s credibility or lack thereof is not the issue. It is completely irrelevant. Who cares? The only thing that matters, when discussing the admissibility of evidence that is dependent on a policeman’s say-so, is the policeman’s own credibility.

    Like or Dislike: Thumb up 11 Thumb down 0

  43. anjin-san says:
  44. PD Shaw says:

    @OzarkHillbilly: I tend to find meth-heads are particularly stupid and unclean. This guy was apparently approached because he had an expired license and an open beer can in his cup holder. Two months later he was pulled over for a traffic infraction and had an open bottle of liquor in his cup holder. Some people are paranoid, thinking the government is after them, but once you have been arrested and charged with a felony, the government is in fact after you.

    Like or Dislike: Thumb up 2 Thumb down 0

  45. M. Bouffant says:

    You have the right not to be murdered (unless it is by a policeman or an aristocrat).
    You have the right to free speech (until you actually try to use it).
    You have the right to be secure against against unreasonable searches and seizures (unless a dog, officer or judge rules otherwise).

    W/ apologies to The Clash.

    Like or Dislike: Thumb up 5 Thumb down 0

  46. OzarkHillbilly says:

    @JKB:

    OK. I only clicked thru on one link (the 3rd one) because I do not have time to do more as a storm is coming and I have to put the plow on the tractor. As I suspected it had no numbers, cited no studies just made a bald assertion. Instead of making an assertion, you quote somebody else making an assertion.

    Stupid.

    I repeat: Yes it happens. All the time? Bullshit.

    Like or Dislike: Thumb up 1 Thumb down 1

  47. OzarkHillbilly says:

    @mantis:

    Why do you keep referring to criminals as if they were performing a public service that you find lacking?

    Why do you keep acting as tho cops are no better than criminals?

    Like or Dislike: Thumb up 0 Thumb down 4

  48. Rafer Janders says:

    @OzarkHillbilly:

    All the time? Bullshit.

    Nope, not bullshit at all. Cops lie on the stand all the time. Ask any defense attorney. Hell, ask any halfway honest judge or prosecutor. We all know it goes on.

    And why wouldn’t they? Think of it in terms of incentives. They have multiple incentives to lie: they’ll secure convictions, get in good with the prosecutors, prevent their arrests from being thrown out, stay on the good side of their fellow cops, etc. And there aren’t that many disincentives: as you demonstrate, most people will choose to believe cops over defendants. There’s not much likelihood that they’ll be caught in a direct lie, absent video or audio evidence, and even then there’s not much likelihood that they’ll go to prison for it. And the cop who won’t ever lie is not going to be looked on too kindly by fellow cops, who’ll start to think he’s weak and soft on crooks.

    Like or Dislike: Thumb up 8 Thumb down 0

  49. Rafer Janders says:

    @OzarkHillbilly:

    Why do you keep acting as tho cops are no better than criminals?

    When policemen perjure themselves on the stand, they are committing a crime. They are knowingly choosing to commit a felony.

    Like or Dislike: Thumb up 7 Thumb down 0

  50. mantis says:

    @OzarkHillbilly:

    Why do you keep acting as tho cops are no better than criminals?

    Point out where I did that.

    And answer the question.

    Like or Dislike: Thumb up 2 Thumb down 1

  51. Rafer Janders says:

    @OzarkHillbilly:

    Click through to anjin’s link at 2:21.

    Like or Dislike: Thumb up 0 Thumb down 0

  52. OzarkHillbilly says:

    @Rafer Janders:

    I’ve worked as a criminal defense attorney in the past. I’ve seen them routinely lie about matters which I knew as a fact were lies.

    I know, I hate it when Defense attorneys lie too. ;-)

    Look, I gots to go. I have a good friend who was a PD in the East St. Louis Federal court. I have heard plenty of tales from her that would curl anyone’s toes.

    But here is where I am coming from: I have never been arrested without deserving it. The few times I had a cop f’ with me, I did not react and by the time it was over it was obvious his old lady was holding out on him (or something) (not an excuse, but they are human) I have also had cops pull my d*ck out of the dirt on 2 occasions. Once when I caught some one trying to “steal” my truck (he was drunk, probably got in it by accident) and oh yeah…. did I mention he had a gun? The 2nd time was when somebody broke into my basement. I got out of bed threw on some pants, grabbed a pick handle (could of grabbed the shotgun but there wasn’t anything down there worth killing for) Stumbled around in the dark in my barefeet until I found myself looking at my basement door, thinking “What in the F is wrong with me? I got a wife, a baby, I don’t know how many there are, I don’t know if they got guns, this is really stupid.” Went in my apt and called the cops.

    When they got there I went out to meet them. We went around to the basement door and… it was open. I looked at the cops and said, “Guys, that door was closed earlier.” So not knowing if they had all got out, one cop covered the outside while the other went in by himself. 5 mins later he came out shaking like a leaf from the adrenalin let down. F that sh1t. there ain’t enuf money to get me to do that job.

    As I stated at the very beginning, yes there are some bad cops. Yes some of them lie. But I refuse to act as though they are all bad or that they all lie. That is every bit as naive as the opposite. And it slurs the good ones.

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  53. Rafer Janders says:

    @OzarkHillbilly:

    I know, I hate it when Defense attorneys lie too. ;-)

    You seem a bit confused as to what goes on in a courtroom. Defense attorneys don’t lie — because defense attorneys don’t give testimony under oath. Their credibility is not at issue, since they are not parties or witnesses to the arrest.

    Police officers, however, are. Their credibility is directly on point as to the issue of whether there was even probable cause for a stop and search in the first place.

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  54. Rafer Janders says:

    @OzarkHillbilly:

    But I refuse to act as though they are all bad or that they all lie.

    No one is saying that they are ALL bad or that they ALL lie. But MANY of them lie routinely, as a matter of course, to a degree far exceeding what the average citizen thinks goes on. A police officer’s credibility should be severely scrutinized by a judge and/or jury, and there should be zero assumption that he is telling the truth simply because he’s police.

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  55. Tyrell says:

    What if the dog picked up the scent of a child who had been missing ?

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  56. Rafer Janders says:

    The point I’m trying to make with drug dogs, and that I don’t think people are focusing on, is that the use of dogs should make us more, not less, skeptical of the officers’ testimony, since we’re otherwise using the dogs’ alerting to be prima facie evidence.

    If police use some sort of technological device (audio/video recording, X-ray machine, breathalyzer, chemical analysis, whatever) to detect a crime, we give that evidence extra weight because we regard it as unbiased, as a simple recording of reality at the time. Moreover, the device can be checked and calibrated, we can look at the logs, we can see if it’s been tampered with, re-run double-blind tests for accuracy, etc.

    With a police dog, however, we’re treating it as a de facto unbiased evidence recording device, with no way to verify, however, what the evidence its recording actually is. Remember, the dog can’t tell us what it did or didn’t smell. There’s no physical record. All we have is the word of the police officer that the dog did what the officer said it did. We’re presenting a potentially biased piece of evidence as if it’s totally unbiased.

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  57. Mikey says:

    @Rafer Janders:

    Bingo.

    We’ve all grown up learning a couple of very important things about dogs. One, their sense of smell is so sensitive, and so accurate, it borders on the supernatural. Two, they are unfailingly loyal and honest companions, essentially embodying all that is good about people without the failings of people.

    That neither is true doesn’t generally occur to us, unfortunately. We don’t fully grasp that it is just an animal. We anthropomorphize it. So we trust the dog implicitly.

    Couple the above misconceptions with the already-high presumption of integrity given police officers, and it doesn’t matter if the dog alerted because the guy in the car had a burger for lunch and smeared some grease on the door handle. The dog alerted, therefore probable cause.

    A technological solution can, as you say, be tested and calibrated. The conditions that cause it to go “beep” are directly knowable and objective. And it won’t start beeping because of an involuntary cue given by the officer holding it.

    None of the above is true of a dog.

    Like or Dislike: Thumb up 4 Thumb down 0

  58. Rafer Janders says:

    @Tyrell:

    What if the dog picked up the scent of a child who had been missing ?

    Exactly how would the dog tell you that?

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  59. JKB says:

    @OzarkHillbilly:

    Interesting, you picked the one that was a letter to the Editor by Alan M. Dershowitz, a professor of law at Harvard who was commenting on the widespread lying reported by an official commission. Yet you call it assertion of assertion.

    Your call for reports is foolish since the lying is rarely officially rebuked. Judges go to great lengths to not to call it. I’ve read decisions where the judge does everything but say it overtly. There are plenty of cases that don’t reach court because of video these days. Such as a NYC officer who arrested a bicyclist claiming he tried to run over him only the video showed the officer rushed the rider and pushed him. Then the officer and his partner lied under oath in their affidavit for the arrest. The officer is still out there lying on people.

    Do all police do the on the stand lying, no but enough do and even more lie in affidavits for arrest and search warrants. The courts and DAs are reluctant to call lying on the long term officers because once shown to be a perjurer, it calls all the testimony in all earlier cases into question bringing all up for review.

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  60. Mikey says:

    @Rafer Janders:

    Exactly how would the dog tell you that?

    Haven’t you ever watched “Lassie?”

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  61. Rob in CT says:

    If drug dogs are so fallible that they have a false positive rate of 50% or more, then an alert, by itself, should not be grounds for probable cause. Doesn’t matter if the dog is on a public street, on private property, or sitting on Charlie Sheen’s lap.

    This.

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  62. Boyd says:

    @Rafer Janders: Wow, are you really that committed to the story you’ve bought into? You’ve never heard of a bloodhound?

    Not that I disagree with your overall point, but you really undermine yourself with silly things like this.

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  63. Rafer Janders says:

    @Boyd:

    Wow, are you really that committed to the story you’ve bought into? You’ve never heard of a bloodhound?

    You’ve never heard of a joke?

    Like or Dislike: Thumb up 1 Thumb down 0

  64. Rafer Janders says:

    @Mikey:

    Couple the above misconceptions with the already-high presumption of integrity given police officers, and it doesn’t matter if the dog alerted because the guy in the car had a burger for lunch and smeared some grease on the door handle. The dog alerted, therefore probable cause.

    And we don’t even know if the dog alerted. All we know is that the police officer says the dog alerted. The dog could have been staring vacantly into space, for all we know, and we only have the police officer’s word that it actually happened.

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  65. socraticsilence says:

    @Moosebreath:

    But Drug Dogs are notorious for false positives, i.e. they alert far, far more than they should, given that fact doesn’t this essentially just give cops the right to search any vehicle at any time regardless of the actual evidence. After all if a cop lies about the grounds for a search he should be reprimanded (whether or not this actually occurs is another issue), if a dog does the same it gets a treat and scratch behind the ears.

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  66. Boyd says:

    @Rafer Janders: Sorry, I didn’t notice any “this is a joke” cues in your post. My bad.

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  67. Pharoah Narim says:

    The current Supreme court is so predictable. The side with corporations over the goverment and with both corporations and the government over the indivual. Why even take a vote?

    I also find it entertaining to read the comments of people who obviously aren’t targeted to provide the human capital for the prison industrial complex. Spend a few weeks (and detainments) on the other side cocooners—then come back and expound to us about the virtue of drug searches and police.

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  68. mantis says:

    @mantis:

    I guess Ozark is not going to come back and explain how and when I said that “cops are no better than criminals.”

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