31 January 2005

Caballes v. the 4th Amendment

[forward: I took a while to write this to let some of my emotional reaction die down. I've neither read the dissents nor many posts on blogs so that my reaction to the opinion would be mine. Therefore, you've probably read some of this elsewhere. I've worked on it for the last couple days but it still feels incomplete and not completely thought out but I doubt it would be complete absent a 30 page dissertation. Anyway, enjoy!]

Okay, as a fairly realistic fellow, I expected the pragmatists to find some way to allow police to continue to use dogs for non-searches which reveal things which are being looked for and would not have been found without the dogs. Much to my surprise the decision is authored by Justice Stevens. It's very short (3 pages), poorly reasoned (shocking for Stevens), and a devastating blow to the 4th Amendment.

The issue as it arrived at the Court was: during a typical pretext stop if the dog is run past the vehicle does that transmute the seizure from one that merely violates the spirit of the constitution to one which actually violates the strictly interpreted words of the constitution? Framed as such it is a fairly easy analysis. Did the dog running around the vehicle extend the time of the seizure longer than that time needed for the pretext stop? No. Then, as the Court has already ruled that pretext stops are constitutional and the seizure did not exceed that natural to the pretext stop there was no unconstitutional seizure. The analysis needed to go no further than this.

However, in the last sentence of the last full paragraph on page 4 Justice Stevens recognizes that a pretext stop can be transmuted into an unconstitutional seizure. Justice Stevens did not have to adopt this type of analysis nor did he provide any support for doing so. At first blush it looks like something which might be useful to defendants. However, he also ties the analysis to a "legitimate interest in privacy."

The 4th Amendment Only Applies if the Government Says It Does

This is the point at which the Court pulls the big switch. You don't have a right to be free from a search unless there is no reason for the government to search you. My copy of the Constitution must be out of date because in it the 4th Amendment doesn't state that a citizen has a right to be secure in "persons, houses, papers, and effects" except should the government decide he does not. Maybe mine has a misprint.

What's the underlying assumption of the 4th Amendment? It seems to me fairly obvious. The government and citizenry will come into conflict over various matters. The government will seek to quash the acts of which there is official disapproval. Searches are a powerful tool in the hands of the government to accomplish its suppression of activities it has banned. Anticipating this sort of conflict, wide ranging general searches were banned. Specific searches for government declared contraband (the wrong type of Bible, religious tracts, political pamphlets, escaped slaves, prohibited alcohol, prohibited drugs, &cetera) were curtailed as well, favoring every citizen's right to be left alone unless the government could demonstrate "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". The 4th Amendment only makes sense if it curtails the government's search for contraband. After all, how often is the government going to be searching for your picture of Aunt Mildred or the paperclips you keep in your desk?

The Ultimate Creature of Perfection: The Dog

Going further into the decision we are once again told that this tool for detecting trace odors is entirely unique, that there is no proof it ever makes errors and even if it did "the respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information." This last is appellate court speak for "You didn't make an incredibly obvious point because you assumed we were intelligent enough to know something this ridiculously simple. We're not." Now, since there is no right to privacy in things of which the government says there is no right to privacy a false alert must be revealing something which the government allows you to have a privacy interest in - the chocolate chip cookies on the passenger seat, the fact that your cat was in the car earlier today, the dog treats you have in the trunk with the rest of your groceries, &cetera. Either the dog is reacting to this item, it is faking, or it is just wrong; in any case it is the reason that the police will search the car and violate your privacy interest in the bag of milkbones you have in the trunk.

The assumption of canine infallibility is just amazing to me. All I can figure is that none of the majority has ever owned a dog. I'm going to assume that most of you have owned a dog that has tried to deceive you or done something for which it thinks will get it rewarded and know how silly canine infallibility is. As well, even by presumptively biased police records 38% failure rates have been recorded; perhaps a more accurate error rate might be something along the 59% rate when dogs are used to try and find medical problems. And we should all remember the poorly trained dogs which have been used by the government in the past. If anything dogs - with differing temperaments, cognitive abilities, levels of training, the ability to be effected by illness or age - are more apt to be prone to error than other tools used by law enforcement.

Kyllo? A Meaningless Distinction

Next Justice Stevens tells us that Kyllo doesn't apply because the electronic tool addressed in that case could multi-task and expose legal activities. Dogs can't do that. A dog which can be trained to sniff out cocaine and trained to sniff out marijuana and trained to sniff out heroin couldn't possibly be trained to sniff out something legally in the car owner's possession. I mean, a police dog couldn't be trained to sniff out the gun powder or oil which would be found on the entirely legal firearm the car's owner has locked in the trunk. Could it?

Future Applications

Assuming the multi-tasking ability is actually the basis of Kyllo this decision and technology effectively gut the 4th Amendment. All the government needs to do is make sure that each and every device it uses for random, non-suspicion based searches only does a single, very limited task. Concerned that someone in the jurisdiction might be growing marijuana in their house? Develop an instrument which only has a digital readout of temperature and will only show the temperature if it is high enough to indicate there is probably a grow room.

As long as technology continues to improve the government can continue to use it to get around the 4th Amendment as long as the electronics remain a one trick pony. The most likely method to do this is as described above: develop the technology but purposefully limit its user's access. It doesn't matter how powerful the scanning technology is, if the digital readout can only say "COCAINE" the officer cannot use it to find out that I have Aunt Mildred's picture hung on the back of the utility room closet door. And since Justice Stevens has ruled that the search is only unconstitutional if the officer is searching for or could find dear old Aunt Mildred's portrait the limitation on the readout makes it constitutional.

Final Observations

Of course, I never read Kyllo to mean what this decision characterizes it as meaning. As I remember Kyllo it was about limiting primitive tools because more advanced tools along the same line could be developed to expose what is inside an area such as a house, car, pocket, &cetera. So I guess that canine olfactory capabilities could never be copied and expanded upon by a device which sampled air content, revealed the presence of trace chemical levels, and therefore tells an officer what is present in a vehicle, home or pocket. Yeah, right. So I still see a conflict between Kyllo and Caballes which will need to be dealt with in the future.

One of the major problems with this opinion is that dogs don't pass the test under the characterization of Kyllo in this case. As alluded to above, assuming dogs are infallible, they still clearly fail the multi-tasking test which seems to be the basis for the assertion that they will only reveal that which is illegal.

Perhaps this analysis will only apply to those who are the subject of a pretext stop and the Kyllo analysis will be applied to places where there is a higher expectation of privacy such as a house or a person's body. Who knows exactly? This opinion cries out for refinement. Sadly, I think this opinion was meant to be the final word, telling us all that "Yes, dog searches are constitutional" and I fear that lower courts will apply this as a blunt instrument without exploring the facts and legal analysis which have been glossed over in it.


Anonymous said...

When this decision came out, I worried about ambiguity factor of dog alerts as well. It led to an interesting conversation with a notable criminal defense attorney in this neck of the woods: would people have less of a problem with this if a virtually infallible method of detection was used? Imagine a "sniffer device" designed to sniff out illicit narcotics and register the presence on a readout - unlike a dog, it would not alert on the steaks you just picked up from the store. Would this be more acceptable? What if it could be tuned to the point that it wouldn't pick up trace amounts (like cocaine residue on money, marijuana smoke residue, etc) -- would that be more acceptable? I think this is the direction we are headed, since it would appear that many possible defenses of these searches will center around the fallability of the dog in the future.

Anonymous said...

I though that your president said that we are at “war” on terror. It seems a little far-fetched for you to argue, as a veteran, that the police should be restricted in using doggies.

Ken Lammers said...

If dog searches are shown unreliable it seems to me that the next battle will be over the constitutionality of the type of devices you envision. Those cases should have a harder time with Kyllo. The sui generis label which has been pinned onto dogs may be a boon almost as much as a bane and limit this line of reasoning to dogs.

JMoore said...

While yes many take issue with the fallacy of the dog issue, another alarming legal notion is that searches are permissable when they ONLY detect contraband. As Ken puts it, "The 4th Amendment only makes sense if it curtails the government's search for contraband. After all, how often is the government going to be searching for your picture of Aunt Mildred or the paperclips you keep in your desk?" Furthermore, as Ken points out the "spirit" of the 4th Amendment is the protection of privacy no matter what contraband you were hiding.

TWM said...

Hmmmmm, here is one cop's take on it. Have fun!


Anonymous said...

To: Anonymous #1
Re: Dogs and Terrorism

According to this government publication of the National Research Council concerning the use of K9 scent dogs on public transit, dogs can be trained to sniff illegal drugs **or** explosives/guns, BUT NOT BOTH. (See,
http://gulliver.trb.org/publications/tcrp/tcrp_rpt_86-v2.pdf at pdf page 65 of 144).

Kinda makes you wonder why, after 9/11 and all, most of these checkpoint and airport searches involve drug dogs, not bomb dogs, generating mostly nickel-dime busts of personal use quantities of drugs...

markm said...

Good point anonymous - either the government lied to the Supreme Court, or they are doing massive searches under the pretext of security with drug dogs that can't even find bombs.

On the other hand, I very much doubt that cocaine smells like heroin smells like marijuana. Does each drug dog only sniff for one kind of drug? Or if they can train a dog to alert on three different substances, I don't see why they couldn't be trained on four.

Finally, dogs are trained by putting the target smell on a toy and using it to play with the dog. What the dog is actually looking for is it's toy. And it can't testify as to just what made it think it's toy (or something else interesting, like a peanut-butter sandwich) was in the car...

SavannahDad said...

OK; I'm just a law student so bear with me here, but...I don't get it. It seemed to me like his reasoning was fine. I mean, legitimate stop...the stop wasn't prolonged...the dog didn't violate any legitimate right to privacy he had...and alerted to drugs...am I missing something here? What is the problem?

Anonymous said...

"...no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,..."

Bailiff: Do you swear to tell the truth, the whole truth, and nothing but the truth? Wag your tail once for yes, and twice for no.

DA: Your Honor the prosecution requests that the dog be instructed to respond to questions verbally so as to enter the stenographers record by barking once for yes, and twice for no.

Defense: Objection! Counsel is clearly leading the witness, and I insist that the leash be removed from the witnesses neck!