Tuesday, January 25, 2005

And so we bid a fond, sad farewell to...

...the Fourth Amendment, which, like whistleblower George Zeliger, a quality control expert and "statistics whiz" consigned to stapling reports and stuffing envelopes, has been limited to such menial duties as to make its job pointless. Reuters for Monday brings us the bad news:
The U.S. Supreme Court ruled on Monday that police do not violate the constitutional right to privacy when a dog sniff of a vehicle during a lawful traffic stop turns up contraband.

The justices by a 6-2 vote, in a majority opinion written by Justice John Paul Stevens, set aside an Illinois Supreme Court ruling that such searches required reasonable suspicion of wrongdoing.

"In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed" on the individual's constitutionally protected privacy rights, Stevens wrote.
I've posted about this case twice before, once when the Supreme Court agreed to review it and again after oral arguments. But a brief synopsis: In 1998, Roy Caballes was stopped by Illinois state police for going 71mph in a 65mph zone. After he refused to allow a search of his car, another trooper showed up with a drug-sniffing dog, which indicated contraband was in the trunk. A search revealed a quantity of marijuana, leading Caballes to be sentenced to 12 years in prison and a $256,000 fine.

He claimed the search based on the "sniff" was illegal and in violation of the Fourth Amendment. The trial court rejected the argument but the state Supreme Court reversed on the grounds that the involvement of the dog improperly changed the nature of the situation from a routine traffic stop to a drug investigation.

And now the Supremes have ruled that no, it doesn't, it's just fine, there was no privacy violated, nothing unreasonable, and here, Fourth Amendment, take this stapler and get to work.

The ruling was a joke, so pig-headedly determined to empower cops and look tough on drugs that it wound up admitting the very thing it's argument was intended to deny.
"A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment" protections against unreasonable searches and seizures, Stevens concluded.
In other words, he says the dog revealed the location of the marijuana. The dog uncovered something that was not previously available to the police - which seems to me a definition of a search! In order to argue there was no search, Stevens says there was a search!

Warped logic leading to a warped decision that has warped our legal concept of protection against unreasonable searches and seizures beyond recognition.

Why am I so adamant about this? Why do I find this decision so threatening? First, because it avowedly declares that even if police have no reason to suspect illegal activity, they can still undertake what can at its most charitable be called a close examination of your person and property to seek evidence of some crime. That kind of discretion was previously limited to questions of immediate public safety (from which the approval of explosive-sniffing dogs in airports comes). This decision effectively broadens that discretion to include whims, idle curiosity - or perhaps even profiling.

Next, because it doesn't just open the door to even wider applications, it kicks down the whole damn wall. If this raises no Fourth Amendment issues, why should doing the same to cars at a stop light do so? Parked cars? People just walking down the street? Especially when you include the constant narrowing of "expectation of privacy" to slice away any time we could possibly be observed by authorities, how could the Justices say no to any of those without mocking their own logic?

Any why limit it to dogs? Why not the "electronic noses" being developed, which are more sensitive and more selective than dogs? If you're going to argue, as some have, that a "canine sniff" is okay because the dogs are merely "passively" responding to smells rather than "actively" searching for them (If that's true, what the hell is all that sniffing about?), well, the electronic version is even more passive. Hell, it's not even alive. Oh, no, that's different, you say? The use of such equipment is an "active" search by its user, you say? Then why isn't the use of a dog an active search by the handler, who is guiding the dog to what the handler wants checked?

And why, for that matter, limit it to drugs? And to smells? Once we accept the idea that the use of tools (which is what the dogs are) that effectively extend the senses of authorities beyond the range of human ability (which is what the dogs do) does not in any way intrude on our privacy or our right to be "secure in our persons and possessions," then we are of necessity saying, as I've argued several times, most recently just over a week ago, that what is within the protection of the Fourth Amendment is limited to that which is beyond the reach of our most advanced technology - and that therefore the range of the Fourth Amendment must shrink over time until for any practical purpose it has vanished altogether.

If it, as of now, hasn't already.

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