Dog searches are not covered by the fourth amendment

[rxbandit]

This is a bit old but I was not aware of this information and swim had a similiar court case he lost.


Supreme Court Confirms That a Dog Sniff of a Car During a Traffic Stop is not a Fourth Amendment Search
Jayme Walker Holcombe
Associate Chief Counsel
Legal Instruction Section
U.S. Drug Enforcement Administration
Quantico, Virginia
[From The Police Chief 2005;72(3):8
Unclassified, Reprinted with Permission.]

A dog sniff of an inanimate object that law enforcement officers have lawfully seized is not a search within the meaning of the Fourth Amendment. The U.S. Supreme Court once again confirmed this principle in the Court’s recent decision of Illinois v. Caballes. [1] In Caballes the Court addressed the use of a narcotics-detection dog to sniff a car during the course of a traffic stop. In a 6-2 vote overturning the judgment of the Illinois Supreme Court, the U.S. Supreme Court stated that 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.” [2]
The Traffic Stop
In Caballes an Illinois state trooper stopped the defendant for speeding. After the trooper informed the dispatcher that he was making the stop, another trooper who heard the radio transmission immediately went to the location of the stop with his narcotics-detection dog. The trooper who made the traffic stop had not requested the assistance of the canine unit.
When the canine unit arrived at the scene, the defendant's car was parked on the shoulder of the highway. The defendant was sitting in the car of the trooper who had pulled him over for the traffic violation and that trooper was still writing him a warning ticket. The second trooper walked his dog around the defendant's car. The dog quickly alerted to the defendant’s trunk. The troopers searched the trunk and found marijuana inside. The U.S. Supreme Court specifically noted that the “entire incident lasted less than 10 minutes.” [3]
The trial court denied the defendant’s motion to suppress and found the defendant guilty after a bench trial. The trial court sentenced the defendant to a $256,136 fine and 12 years’ imprisonment. The appellate court affirmed. The Illinois Supreme Court reversed the judgments of the lower courts and concluded that the use of the dog in the case unjustifiably expanded the scope of the traffic stop without the requisite level of suspicion to suggest drug activity.
The Dog Sniff
In Caballes the U.S. Supreme Court agreed to review the case [4] to address the narrow question of “whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” [5] Because the Court proceeded under the assumption that the trooper who walked the dog around the car had no information about the defendant other than that he had been stopped for speeding, the Court omitted any reference to any facts about the defendant that may have been suspicious.
The Court found that the trooper's stop of the defendant for speeding was a concededly lawful seizure based on probable cause. The Court stated, however, that it “is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.” [6] The Court explained that a traffic stop could become unlawful if the seizure is justified only by the interest in issuing a warning ticket and it “is prolonged beyond the time reasonably required to complete that mission.” [7]
The U.S. Supreme Court took issue with the Illinois Supreme Court's position that the canine sniff outside of the defendant's car made the initially lawful stop for the speeding violation an unlawful seizure. The Illinois Supreme Court had expressed the view that the use of the dog without any reasonable suspicion that the defendant's car contained narcotics converted the police-citizen encounter from the traffic stop into a drug investigation. In considering this issue, the U.S. Supreme Court stated:

“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 respondent's constitutionally protected interest in privacy. Our cases hold that it did not.” [8]

The U.S. Supreme Court cited a number of its prior decisions in reaching the conclusion that the use of the dog in Caballes did not violate the Fourth Amendment. For example, the court cited the 1984 case of United States v. Jacobsen. [9] The Jacobsen case involved a Drug Enforcement Administration (DEA) agent who opened a damaged package containing four plastic bags of white powder concealed in a tube initially opened by employees of an overnight delivery company. The agent removed a trace amount of the powder from one of the bags, conducted a field test, and determined the substance to be cocaine. The Court concluded: “A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy.” [10] Citing to Jacobsen, the Court in Caballes stated: “Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” [11]
The Court also mentioned United States v. Place [12] and Indianapolis v. Edmond [13], two prior U.S. Supreme Court cases that addressed narcotics-detection dog sniffs. The 1983 case United States v. Place involved the exposure of a temporarily detained piece of luggage to a narcotics-detection dog. In Place agents seized Place’s bag and, 90 minutes later, submitted it to a canine sniff. The Court found the initial seizure of Place’s luggage legitimate based on a reasonable suspicion that it contained contraband. However, the Court proceeded to find that the length of the detention of the bag, standing alone, constituted a Fourth Amendment violation in the absence of probable cause. After stating that a person has a privacy interest protected by the Fourth Amendment in the contents of luggage, the Court concluded that the exposure of the luggage to a canine sniff did not constitute a search. The Court stated:

“A ‘canine sniff’ by a well-trained narcotics-detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which the 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. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.” [14]

In City of Indianapolis v. Edmond officers walked a narcotics-detection dog around cars stopped at a narcotics checkpoint established by police. Although the Court found that the checkpoints violated the Fourth Amendment, the Court stated the following with respect to the canine sniffs:

“The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is ‘much less intrusive than a typical search.’” [15]

Reaffirming this principle in Caballes, the Court stated that it had previously treated a narcotics-detection dog sniff as unique “because it ‘discloses only the presence or absence of narcotics, a contraband item.’” [16]
In Caballes the Court found it significant that the second trooper walked the dog around the outside of the defendant's car while he was lawfully seized for speeding. The Court stated: “Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.” [17] This is consistent with the previous positions taken by the Court in both Place and Edmond. The Court also stated that there was no evidence or findings in the record to support the defendant's argument that dog alert error rates call into question whether narcotics-detection canines only alert to contraband.
The Court ended its short opinion in Caballes with a discussion of its 2001decision in Kyllo v. United States. [18] In Kyllo the court ruled that “the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search.” [19] The Kyllo Court had been concerned about using a device to detect lawful activity taking place in a person's home. The Court distinguished the Caballes decision from Kyllo by specifically stating: “The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car.” [20]
Summary
The holding in Caballes is a narrow one, but the case provides important guidance for law enforcement. Following the logic of the Caballes majority, the Court confirmed that there is no legitimate privacy interest in contraband. Because a dog sniff by a well-trained narcotics-detection dog is likely to disclose only the presence or absence of a contraband item, that sniff is not a Fourth Amendment search when done during a lawfully made and ongoing traffic stop. The Court has confirmed, once again, the principle that once the police lawfully seize an item, the use of a narcotics-detection dog to sniff the item without a search warrant or other applicable exception to the search warrant requirement does not transform the seizure into an unlawful search.
It also should be noted that the Court stated that an initially lawful seizure could be transformed into an unlawful seizure if “its manner of execution unreasonably infringes interests protected by the Constitution.” [21] If a narcotics-detection dog sniff were conducted during an unlawful detention, the Court implied that the use of the dog and any resulting discovery of contraband would be found to constitute the product of an unlawful seizure. [22] Because of the narrowness of the Court's decision in Caballes, officers should continue to consult with their legal advisors regarding the use of narcotics-detection dogs during traffic stops and in other investigative situations and contexts. [23]

Reputation Comments on this post:

	Awesome article and even better icon
	You started an excellent thread.

[Broshious]

Great. So the fact that they're wrong some of the time while cops treat them as infailable machines doesn't matter?

[Police Officer]

Originally Posted by Broshious

Great. So the fact that they're wrong some of the time while cops treat them as infailable machines doesn't matter?

Nothings perfect, ever. Even machines. But when a Police Dog is correct 95% of the time, thats 95 out of 100 times, I'd call that pretty good. No, we dont treat them as infailable machines. We, dog handlers, know different. If a dog handler says his dog is right all the time I would suggest that he is not challenging him. I would get more indepth, but I dont want to give away our secrets.

Originally Posted by OccularFantasm

Illegal searches don't count as searches. Well, excuse me while i lose my lunch. I can only hope every single judge to ever vote against drugs will eventually die of a horrible illness, only after watching their loved ones die off one by one. I know they deserve worse, but maybe we can get lucky.

Also, it says "Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item." Since when in the fuck is marijuana a narcotic. Seems to me not only are our cops retarded, but our entire judiciary system is filled by incompetent dicks.

swim always make this same plea, if you see a cop, shoot for the kill. There are more of us than them, do it whole we still have guns. Shit, an AK-47 is only $75, and a shotgun is even cheaper. Do your part to save your country.

You'll never guess what made me want to lose my lunch.

What makes marijuana a narcotic? Well, its in DEA Schedule I, and that THC thing.

I know, us retarded Cops, and those incopetent dicks that fill the justice system...boy! But do you think that advocating murdering Police with AK-47's and shotguns is the answer? And you "always make this same plea" ? Occular, you just made my job easier. You know how many times I've heard it argued on this site that drug users are just non violent citizens who want to get high? Hopefully you do not speak for the majority. Ever.

Originally Posted by Felonious Skunk

Yeah, there are dozens of these decisions, some contradicting others. I'm trying to get a bunch of these sorted and upload them to archives.

Quoting this stuff like scripture during a traffic stop might just get you dragged off-camera and Rodney'd, if you get my meaning...


Ay, lad...I know where that fury comes from, but things are going to have to get quite a bit worse before that becomes a strategy. They're just enforcing laws they had nothing to do with enacting.

There sure are dozens. Fortunately they all say that a Police Dog's positive response for the presence of narcotics equals probable cause.

People who quote law always misquote it. lmao Seriously, its funny as shit. I'm laughing right now thinking about some of the shit I've heard. I had a guy argue with me that just because there were a 1/2 gm of marijuana, and a pipe in plain view it should not have been an indicator that there was a posibility that there might have been more in the vehicle. He of course was adimate that the marijuana and pipe that were in plain view did not equal probable cause. Without a doubt the best is when I'm searching (yes, legally) and some jerktwit is screaming at the top of his lungs "This is an illegal search, I do not consent to this search!"

And as for the last paragraph, whodathunk that FS would be the voice of reason? Not I.

[Broshious]

From another post:

"In Cabelles, Justices Souter and Ginsburg dissented, pointing to studies showing that drug dogs frequently return false positives (12.5-60% of the time, according to one study)"

Admittedly that is quite a range and I have not read the studies but it seems to merit further investigation.

Originally Posted by Police Officer

Fortunately they all say that a Police Dog's positive response for the presence of narcotics equals probable cause.

And that's what I meant by them treating dogs as infailable. If a postive response equals probable cause for a search and they're wrong half the time then something is wrong.

Reputation Comments on this post:

good post.

[Police Officer]

Originally Posted by Broshious

I could've sworn someone posted a study awhile back that they were right 75% of the time which isn't all that great.

I think I remember reading that. I'm not sure where numbers from in that post, but they were right that 75% is not all that great. I've worked ALOT of dogs. There are certain standards, and 95% is right about where you should be. I know that of the dogs I've worked that if their proficiency dropped below 90 or 95 they would be pulled off the line and the dog and the training would be reviewed to try and pin point the problem. This is pretty much the norm.

Like I said, I'm not sure where you got the 75% number from. Maybe from responses vs. actual finds? Police Dogs respond on the odor of narcotics, not the narcotics. Maybe if you had your dope in the car the day before and the dog responded and then nothing was found. Thats a common thing.

I'm telling you guys, you cant hide dope from a well trained dog.

[Heretic.Ape.]

chip, chip, chip... now taking bets on how many more years the bill of rights will actually mean anything

[Felonious Skunk]

Yeah, there are dozens of these decisions, some contradicting others. I'm trying to get a bunch of these sorted and upload them to archives.

Quoting this stuff like scripture during a traffic stop might just get you dragged off-camera and Rodney'd, if you get my meaning...

Originally Posted by OccularFantasm

...swim always make this same plea, if you see a cop, shoot for the kill...

Ay, lad...I know where that fury comes from, but things are going to have to get quite a bit worse before that becomes a strategy. They're just enforcing laws they had nothing to do with enacting.

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Good post buddy. I like that last part. Whodathunk you would be the voice of reason?

[rxbandit]

I have heard and i believe it is mentioned in another thread that Police officers have been found and are able to cue dogs to bark. This under the law would give them probable cause regardless of any actual evidence. I have heard from various people this is a somewhat common practice, however i do not know this to be legitimate. It just seems that this ruling and the fact that animals can be manipulated so easily and are not able to be cross examined in court leads to the possibility of abuse of power based on a police with a biast or unwarranted suspicion.

Also, most drug users are peaceful however you will always get those nuts regardless of their recreation or their cause. Killing cops our not the answer but i do think cops should be restricted to protecting people rather then punishing people that make decisions that only effect them and people who have made similiar decesions as they have.

You can't hide dope from a drug dog but the fact that this is an odor of an illegal thing in or near your car does not constitute a crime. someone who smokes weed chronically could have simply left some of their clothing in your car and because of the stench or are being unduely harassed.

How do you view the imprisonement of minor drug offenders and mandatory minimums?(just curious)

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an odor of an illegal thing in or near your car does not constitute a crime- yup, I was just going to make that point.

[Coconut]

Originally Posted by rxbandit

How do you view the imprisonement of minor drug offenders and mandatory minimums?(just curious)

Wait, wait, I think I can answer this one. Let me just look into my magical crystal ball...

I see an answer something along the lines of "it's the law - it's my job to enforce it, not question it. If they don't want to be put in jail they shouldn't be smoking marijuana."

[Police Officer]

Originally Posted by rxbandit

I have heard and i believe it is mentioned in another thread that Police officers have been found and are able to cue dogs to bark. This under the law would give them probable cause regardless of any actual evidence. I have heard from various people this is a somewhat common practice, however i do not know this to be legitimate. It just seems that this ruling and the fact that animals can be manipulated so easily and are not able to be cross examined in court leads to the possibility of abuse of power based on a police with a biast or unwarranted suspicion.

Also, most drug users are peaceful however you will always get those nuts regardless of their recreation or their cause. Killing cops our not the answer but i do think cops should be restricted to protecting people rather then punishing people that make decisions that only effect them and people who have made similiar decesions as they have.

You can't hide dope from a drug dog but the fact that this is an odor of an illegal thing in or near your car does not constitute a crime. someone who smokes weed chronically could have simply left some of their clothing in your car and because of the stench or are being unduely harassed.

How do you view the imprisonement of minor drug offenders and mandatory minimums?(just curious)

Is there the possibility that a dog could be cued into a response? Sure. Is it likely? No.

You are exactly right. The odor of contraband around something like a vehicle does not constitute a crime. But, Police Dog's will tell us where the odor is coming from. The odor and Dog's response do not constitute a crime, but they do provide probable cause.

Mandatory minimums are for career criminals. Look up the ACCA. It stands for the Armed Career Criminal Act. If you get picked up for personal user amount felony type narcotics numerous times you wont even hear the words mandatory minimums. They are designed for criminals who literally are a menace to society. Now, I will say that I have heard some people who have been sentenced under these guidelines that seemed a bit stiff (theres no need for everyone to find examples and post them, I know they happen).

That would be a good thread. Talking about the ACCA. It most certainly has to do with narcotics, and I'm sure alot of you dont know about it.

[Beanfondler]

Originally Posted by Police Officer

Is there the possibility that a dog could be cued into a response? Sure. Is it likely? No.

There are only two factors that change the likelihood of this happening. The first would be the individual wielding the dog and the second would be the person being searched. You'll be fine with your rights being circumstantial until the point where the circumstances deprive you of them or they no longer exist.

Originally Posted by Police Officer

Mandatory minimums are for career criminals. Look up the ACCA. It stands for the Armed Career Criminal Act. If you get picked up for personal user amount felony type narcotics numerous times you wont even hear the words mandatory minimums. They are designed for criminals who literally are a menace to society. Now, I will say that I have heard some people who have been sentenced under these guidelines that seemed a bit stiff (theres no need for everyone to find examples and post them, I know they happen).

I did not read the ACCA but the simple fact that mandatory minimums may be applied as the prosecution/judge sees fit voids the notion of equal treatment under the law. The intention is for career criminals... The intentions of the prosecution/judge are a variable. The law potentially is applicable to everyone and considered to be ridiculous if applied to the majority... So why again is it potentially applicable in all cases without any sort of requirement? If there are not substantial requirements placed upon the use of the mandatory minimums then whatever it is that makes you or I a "career criminal" and potentially screwed is completely circumstantial.

[OccularFantasm]

So yeah, I may have been in a really bad mood last time i posted on this particular thread. Also, I have my reasons for mistrusting the police, I'm not just crazy; however this post is completely unrelated and won't rant on like that again. I was wondering with the dogs, are there any races or types of people the dog doesn't like or will bark at. I ask because my dogs (German Shorthaired Pointers) don't like black people. I don't quite understand why, perhaps they smell different to the dogs nose i have no idea, but it happens every time. They also hate anyone wearing a hat or sunglasses. I was wondering if the dogs used by the k9 unit ever did anything like this? Or if perhaps, it was in their training to make them more impartial, or perhaps that specific breed of dog doesn't.
Although I must say, i do still think they could have had more qualified people making decisions on that Supreme Court. It is irrational to say something isn't a search in one context, yet still retain the ability to seize property. Property cannot be seized without a search. This is why, to me, the ruling seems crazy.
Also, police officer, I see why you say thc is a narcotic. It is not in the actual definition of the word, but we have written it in our law as one anyway. I suppose we're both right on that one.
I do still maintain however, that policing has a barrage of negative effects on society. I also still maintain that if a cop searches someone and gives them a hard time just because there is weed or a pipe out, the cop should be put in jail. Will this every happen, I sincerely doubt it. That is why i got frustrated and said kill them all. It was just out of frustration not actual meaning, so I am sorry about that. I just thought I should clear that up.
Also, it seems people are always willing to give cops more tools and powers, except however, nobody ever seems to be willing to limit their powers. This is a double edged sword, which worries me. All it would take is a handful of bad cops with too much power to turn life into hell. I hope you see where my concern comes from. I was just trying to show people just because someone is a cop, they can still be a bad guy, it is irrelevant of title. I do think officers should not enforce laws they very much do not believe in however, much as the Nazis shouldn't have killed people or done things they didn't agree with. these people were tried for crimes against humanity, and I don't see much difference here. I'm not saying arrest all the police, just i think more cops should think of that, even if in the end they decide ever so decisively, that it is a bad idea. I just think there is to much blind rule-following going on. Please let me know what you all think on any of this.

Also, if cops just stopped worrying about drugs, and focused on real crime, ie: murders, rapists, arson, etc, I would have nothing but the utmost respect for them, with the exception of course for the local units in my specific area of whom i personally know are bad people. (weather they had chosen to be cops or not)

Also, I'm not saying some drugs shouldn't be illegal. Since it is not yet legal to shoot a crackhead, there needs to be another means to get them out of our hair. If they just spent the time taken on trying to bring in pothead and some kid trippin on acid, they could actually do something about the crack and crystal meth around. But, in the cops defense, thy are given requirements of tickets to write, which is preposterous. I suppose originally the rule was probably made to ensure cops were actually working or not taking bribes to look the other way or something, but it has instead turned into cops having to look for places to give tickets. Look at the end of the month, cops re frantic to give out tickets, to help ensure their own job. This is unfair for both groups of people.
Will you at least agree with me that the way law enforcement is set up today, is more less about stopping actual crimes and more about paperwork and quotas than it ever should be?

Reputation Comments on this post:

very hatefull post

[Beanfondler]

The problem here is that the bill of rights was put in place to protect the citizen from an overzealous and/or self interested and greedy individual (police officer in this specific case) looking to better their status by drawing attention to themselves by meeting a quota or higher arrest rate. Yes narcotics dog can be manipulated by the officer if they intend to do so. The fourth amendment protects the citizen assuming that law enforcement is just as self interested an greedy as anyone else, but this ruling assumes that the individual/officer is anything but human and therefore infallible and unaffected by the self interest that drives all beings in existence.

It doesn't mean a damn thing if the dogs have a 100% success rate; if a wanted result can be coaxed out of the dog the success rate is blown out of the water. Unless some form of evidence which is not influenced by any party of a given interest can be produced to justify a search then we'll continue on the slippery slope of creating loopholes that transform what were "rights" into pseudo-rights. Or the citizen has the right privacy or whatever else as long as the individual given law enforcement authority is not influenced by self interest.

Not only does our society promote and reward success providing motivation to manipulate the dog or system, but the officer is probably simply boosting their ego or making judgment calls on who should be protected by the law and who is not worthy of the proper treatment and they can be illegally intruded upon as long as the law enforcement individual does not reveal that they manipulated the dog or jumped through some other hoop to bypass the law they are to enforce.

The moment where a citizens rights are dependent on an individual being pure and incapable of self interest is the moment when that citizen has no rights.

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good post

[Police Officer]

Well this was a pretty alright thread until post 7 or 8. Hopefully the mods or admins either lock this thread or remove the garbage thats currently in it. I doubt DF wants to turn into some forum where advocating the murdering of Police Officers is acceptable.

It kinda sucks, this was turning out to be a good thread.

[Police Officer]

sure. I got to find it.

Found it. Its 18 USC 924 (Known as the Armed Career Criminal Act). I'll post about it later.

[rxbandit]

I actually agree with you officer. As much negative stigma that is attached with being a PO in a drug forum, I respect the fact you are here and think you are a great resource to this community. You offer valuable information from the other side of the spectrum.

Just because someone is a cop or doesnt agree with your lifestyle doesnt mean they are a bad person. I know cops stereotype alot as any person would but most people put cops in that same box that cops put us drug users into. Someones occupation and lifestyle do not define their morals, ethics and beliefs or their value as a person.

I'd like to see threads be less objective and emotionally charged and more objective and informative( personality and humor is alright but endorsing hate is not).

It seems alot of us are frustrated with how police and goverment officials misjudge and persecute our habits but the only way to remedy this is through discussion and education. As much as I cringe everytime I see a cop, I still think they deserve a certain level of respect, especially on this forum.

I'm really curious if you have any thoughts on my post above police officer.

[rxbandit]

I must plead ignorant to not knowing anything about the ACCA but am very curious about its legal reprecussions. If you would be so kind as to make a thread on it, im sure it would be much appreciated.

[Nagognog2]

If I see any more references to kill off those we may disagree with, a HEAVY foot will fall. You have a chance to discuss and learn from each other. Use it. Unzipping your pants and yelling about your giant penis will get you nowhere.

Get it? Got it? Good!