Monday, November 5, 2012

The Fourth Amendment Goes to the Dogs

Chemerinsky: The Fourth Amendment Goes to the Dogs - News - ABA Journal

The unregulated use of "drug dogs" to allow police to search in situations where they would normally not have the right to search has grown more and more abused in the past decades.  I am hoping that the Supreme Court will clamp down on this end-run around the US Constitution, but I have my doubts. 

Chermerinsky writes: 
There have been only three prior Supreme Court cases concerning the use of such dogs and both arose in very different contexts. In United States v. Place, the court in 1983 rejected a Fourth Amendment objection to the use of a drug sniffing dog used for a piece of luggage in an airport. When Place’s behavior in the airport raised suspicion, the police took his suitcase and had a dog sniff it. The dog signaled the presence of drugs, the suitcase was opened, and cocaine was found.

The Supreme Court rejected a Fourth Amendment challenge and held that the use of the drug sniffing dog was not a search. The court stressed that the luggage was in a public place and that the use of the drug sniffing dog was less intrusive than opening the suitcase and exposing non-contraband to view. In language that might be relevant in Jardines, the court said: “Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item.”

In 2000’s City of Indianapolis v. Edmond, the court held that it violated the Fourth Amendment for the police to create a checkpoint at which they stopped cars to have a drug sniffing dog detect the presence of drugs. The court explained: “We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Although the court found the checkpoint to violate the Fourth Amendment, it also said, relying on Place, that the use of the dogs was not a search because there was no entry into the car and was not designed to reveal any information other than the presence of illegal drugs.

Finally, in Illinois v. Caballes, the court ruled in 2005 that a sniff by a drug detection dog of the exterior of a vehicle during the course of a lawful traffic stop did not constitute a Fourth Amendment search. The court once more emphasized that there was no infringement of the reasonable expectation of privacy in the use of such dogs to reveal only the presence of contraband.

As always, if you find your property or automobile being subjected to a "search" by a drug dog, pull out your cellular telephone and record it.  Then email me the recording before the police find and destroy it.  My iPhone app (link below) can help you with this.

- John Steakley
Steakley Law - Stalnaker App Studios