Friday, March 01, 2013

Left Side of the Aisle #97 - Part 4

Outrage of the Week: SCOTUS gives cops even wider latitude

The outrage of the week is one that demonstrates - if demonstration was needed - just how fragile and limited your "freedom" is when the police invoke the magic word "drugs."

The 4th amendment to the Constitution reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Notice it refers to "persons, houses, papers, and effects." It doesn't say anything about your car. Courts have long held that driving is a "privilege," not a "right," so the state can put any restrictions on it which it wants, restrictions which you, in the course of recognizing that having a driver's license is often a necessity in today's society, "willingly accept." And Courts then have used that supposed willing acceptance to turn your car into what defense attorneys often call a "4th amendment free zone."

The Supreme Court recently ruled in a case involving a drug-sniffing dog. A Florida cop had stopped the same guy twice, walked his drug-sniffing dog around the guy's truck both times. Both times the dog alerted to the presence of drugs, giving the cop probable cause to search the truck. Both times no drugs were found.

The Florida Supreme Court ruled that both searches were illegal. In order to use a dog's alert to justify a search, the court said, police must demonstrate more than that the dog was trained and certified, but also that it was reliable. This was in keeping with the US Supreme Court's own standard, which was that cops have the right to search property if "a well-trained and reliable dog" indicates the presence of illegal drugs.

But in considering this case, the Supreme Court unanimously - and I emphasize unanimously - ignored its own standard and reversed the Florida court, declaring that courts should consider a dog sniff as reliable if the animal has passed a certified training program that includes controlled performance tests. That this dog had a clear record of being unreliable in the field didn't matter because a requirement of actually being able to demonstrate reliability "defies common sense." I expect we could call this faith-based judicial reasoning: We must have faith in the dog.

The point here is that to justify a search in the context of a routine traffic stop, police need probable cause to believe that the person stopped is committing a crime that justifies the search. Police dogs hitting on suspects like this guy will now become a proxy for probable cause which is an open invitation for police to search - and the dog does not even have to be a reliable one. History says that if you give cops an open invitation to search they will take it - and history also says that the effects of such invitations invariably falls most heavily on the poor and communities of color. There’s no reason to think that will change now.

What's more, there's an outrage underlying the outrage. This case involves what's called "an external canine sniff." That has been held by the Supreme Court to not be a search - it is what they call a "4th amendment non-event."

Now here’s the question I want answered: How is this not a search? The dog is tool, a tool the cop is using to extend their capabilities, to detect things which they cannot see or hear or, in this case, smell. The dog is a tool.

What’s the answer you get? “Oh, no, the dog is not searching for smells. The dog is merely a ‘passive receptor’ of the smells that are there.”

Yeah, whatever, the point is, it’s not the dog that’s active, it’s the cop. The dog is not just wandering around a field or something, the cop is actively leading this dog on a lead to your car, to sniff here, sniff there, to see if they can find anything.

There are these new things, they’re not in practical form yet, but they are being developed. They’re called drug-sniffers. They’re like a wand you can hold that are both more sensitive and more discriminating than a dog’s nose in detecting smells. If a cop had one of these wands and went around your car, waving it around, seeing if it lit up for anything, is that a search? Is it going to be argued that the wand is merely a “passive receptor” of smells? If not, why not? If the use of a dog is not a search, how can the use of the wand be one?

This is inane. The whole purpose of a tool, of any tool, down to a hammer or a lever or whatever, the purpose of a tool is to enable you to do things you otherwise could not do. Cops have long been allowed to deal with things “in plain sight” - or plain hearing, or plain smell. In this case, that "plain sight" doesn’t exist: The cop is using a tool to extend their capabilities beyond those of a human being. How is doing that not a search?

If the Court is going to follow its own logic in this, the Court is going to have to say that the only area where you have privacy, the only area you are free from these kinds of searches, the only area where the Fourth Amendment does reach is that area where our latest, most advanced technologies do not.

And the fact that the logic of the Court leads inescapably to that conclusion is an incredible outrage.


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