Jacob Sullum on how credulous courts have granted police dogs the power to circumvent Americans’ right to be free from intrusive search and seizure by police officers on fishing expeditions:
The deputy and another officer who arrived during the stop nevertheless went through Burns’ truck for half an hour or so, reaching up into the boat, perusing his cargo, looking under the seats and the hood, examining the gas tank and the undercarriage. They found no trace of drugs, although they did come across the loaded pistol that Burns mentioned to them once it was clear they planned to search the truck.
“They were cool with the gun,” Burns says. “If it had been California, God knows what would have happened.” He was so relieved that he barely minded the delay and inconvenience, which stretched a brief traffic stop into more than an hour. “I’m not a lawyer, and I’m not a super-libertarian,” Burns says. “Once I realized that the pistol was not going to be an issue, man, they could have spent all day going over that car and under that car. My only concern was that one of the guys might have slipped something in to cover up for the fact that they didn’t find anything.”
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.
