When a sniff makes a sniffle

Okay, if this goes the wrong way we can pretty much kiss the Fourth Amendment goodbye. From the New York Times for April 6:

The Supreme Court agreed on Monday to decide whether the police need a special reason to subject a car they have stopped for a traffic violation to a drug-sniffing dog.

The case is an appeal by the State of Illinois from a ruling by the Illinois Supreme Court. That court found last year by a vote of 4 to 3 that use of a drug-sniffing dog, without any particular reason to suspect that the car contained drugs, had unconstitutionally broadened the scope of a routine traffic stop.

In brief, this is what happened:

A state trooper stopped Roy Caballes for going 71mph in a 65mph zone. (That itself strikes me as quite odd - how often are people stopped for exceeding the speed limit by 6mph, which in this case is not even 10% over the limit? Proportionately, it's like stopping someone for going a fraction over 27mph in a 25mph zone.)

The officer asked for permission to search the car; Caballes refused, as is his right (or at least it still is now). The officer said he was going to give Caballes a warning but as he was writing it up,

an officer appeared with a drug-sniffing dog, which immediately alerted the officers to the trunk. The trooper searched the trunk, found the marijuana and arrested Mr. Caballes.

After the trial judge rejected his objection to the search, Mr. Caballes was convicted of drug trafficking and sentenced to 12 years in prison and a fine of $256,136, representing the street value of the drugs.

(I won't, except to note it, deal here with the usual practice of massively inflating the value of seized drugs.)

On the basis of a 1983 Supreme Court decision allowing for the use of explosive-sniffing dogs at airports, the state of Illinois is contending that "a Fourth Amendment non-event (here, a canine sniff) remains a Fourth Amendment non-event even if conducted during a legitimate traffic stop."

The Illinois Supreme Court did not maintain that a dog sniff, by itself, was a search. Rather, the court said, the use of the dog "impermissibly broadened the scope of the traffic stop in this case into a drug investigation because there were no specific and articulable facts to support the use of a canine sniff."

Four years ago, the Supreme Court invalidated a drug-detection roadblock program in Indianapolis in which the police stopped cars at checkpoints and subjected them to drug-sniffing dogs. Without addressing the use of the dogs, the court found that the Fourth Amendment did not permit roadblocks for the general purpose of crime control.

If the Court follows its own logic, it should rule in favor of Caballes because what he experienced amounted to a random check without cause. But frankly, I don't have high hopes and fear rather that the door will be opened to ever-more intrusive "non-events."

That's because there is an underlying principle here: The Fourth Amendment has always been held to not apply to things "in plain sight," that is, that require no search to find. But what if the things are not obvious to a person but are in plain "sight" to a dog? That is, after all, why they're used, to discover things in ways people can't, to extend the capabilities of law enforcement.

This is something I discussed at greater length in a post on January 13. But frankly, because I do wonder how many readers actually follow those links back to earlier posts and because I think this is important enough to justify it, I'm going to the unusual extent of reposting the entire thing here. This is it:

A "60 Minutes" report began this way:

Detection dogs that sniff for bombs and narcotics seem to be everywhere these days - at airports and courthouses, on our streets and in our schools.

There's no doubt that canines can be valuable assets for law-enforcement, but are they as reliable as we've been led to believe? Some are. And some aren't.

The report was actually concerned with the lack of training or performance standards for such dogs, but still raised, almost incidentally, some serious privacy issues.

Which brings us to the case of Lezley Whipple in Lordsburg, N.M. After her school district hired a private handler and his dog to search for drugs, she was called out of class one day because the dog had alerted on her car.

Whipple told her parents about the search of her car, and that the dog had come into the classrooms: "There would be an announcement over the intercom. And they would say, "We're on lockdown. Nobody's to leave the building or the room.' And the teachers would shut the door and we all had to sit in our seats. And we'd just wait there in class. Class stopped actually. And then the dog would go up and down the rows."

Whipple's parents - hooray for them - raised a stink. The principal defended the policy, proposing even to expand it to elementary level classes, on the grounds that the dog had alerted its handler to the presence of drugs 72 times. The fact that the dog turned out to be wrong 71 of those times (including in Lezley Whipple's case) was irrelevant. An ACLU suit resulted in a settlement in which the school agreed to halt the practice and pay most of the Whipple's legal costs.

But the question of whether it was legal to use the dog to sniff the students was left undecided.

The supreme court has ruled that law enforcement agents have the right to search property, like luggage and vehicles, if "a well-trained and reliable dog" indicates the presence of narcotics.

But what does "well-trained and reliable" actually mean? The supreme court didn't say.

It also doesn't deal with the slippery slope effect of allowing the practice at all. The argument here is simple: A "hit" from a "well-trained and reliable dog" establishes probable cause for a search and therefore such searches do not violate the Fourth Amendment prohibition on "unreasonable searches and seizures."

But when you have dogs going up and down the rows in a classroom sniffing students, when you have them going through parking lots and airport terminals sniffing cars and luggage, you don't just have potential establishment of probable cause, you have law enforcement personnel actively seeking probable cause, which strikes me as something altogether different.

I'll make two points here. The first is that I doubt it would be considered "reasonable" for police, lacking reason to suspect criminal activity, to go up to a private house and peek through the windows to see if they could see anything that would establish probable cause for a search. Yet I see no difference between that and the use of drug-sniffing dogs. In each case people are being randomly targeted in what is, again, an active attempt to find grounds for a search.

Actually, I can see a difference, which is my second point: the use of dogs. The defense of the program rests largely on the claim that this is not, in fact, an active attempt to find probable cause; rather, the dogs are "passive" receptors of what's there. That is, they don't go looking for smells, they just react to those that are present.

The argument is disingenuous, of course; it's not the dogs that are active, it's the handlers guiding them around to where they hope such smells are to be found. More important, however, is that dogs are used because their sense of smell is superior to ours, particularly in discrimination - the ability to pick out a particular smell even when it's mixed with others. They are used, that is, as a tool to extend human capabilities.

But if using dogs to extend our capabilities is okay, why not technological means to the same end? Why not the thermal imaging of houses or the hand-held drug-"sniffing" wand? What about emerging technologies that can virtually "see" through walls (by detecting the minor variations in heating of those walls as heat-releasing objects - like people - move around inside them)? That can read letters through sealed envelopes (by reading slight variations in light transmission due to the ink, with a computer used to reorder the patterns into readable text)? Where do you draw the line?

While a strong case can be made for allowing dogs to sniff, for example, in airports for explosives on the grounds of immediate public safety, sniffing for other things, such as drugs, simply does not pass that test. The practice should be banned.

(End of January 13 post.)

Footnote: From an April 7 article on a NASA website:

When planes have a problem, analysts can usually figure out what went wrong. They simply check the plane's "black box," which records exactly what was happening to the plane at the time.

Now, there's something similar for people. Under the leadership of Stanford University professor Greg Kovacs and NASA/Ames design engineer Carsten Mundt, researchers have developed a device that is like a black box or flight recorder for human beings.

Just as a plane's black box records crucial mechanical data, NASA's device, the CPOD (pronounced "see-pod"), keeps track of biological data, like changes in heart rate, the amount of oxygen in the blood stream, how the wearer is moving ... and much more.

The device, a little larger than a computer mouse, is designed to be worn via a strap around the waist. The information it provides is stored on computer and software is being developed to analyze the data in a way that can not only give information on vital signs but can determine just what the person was doing at the time.

It's intended to better understand the effect of living in space on astronauts. But I wonder how long it will be before it's adapted to provide second-by-second tracking of, for example, parolees, people out on bail, those under house arrest, and after that for parents to check on children and bosses to check on employees.

Winston Smith would understand.