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Commentary: Cry havoc, and let slip the dogs of (drug) war

This article first appeared in the St. Louis Beacon, Nov. 29, 2012 - “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.”

The Fourth Amendment is the cornerstone to the implied right of privacy in the United States Constitution. Although the term “privacy” appears nowhere in the Bill of Rights, security in one’s person, house, papers and effects is a functional definition of the concept.

Note at the outset that the Fourth’s protection is not absolute. It extends only to searches and seizures deemed to be “unreasonable.” And that reasonable-sounding adjective has generated a surfeit of debate.

What is reasonable tends to be a highly subjective judgment. As anyone who’s had the pleasure of visiting divorce court will surely attest, even people who are intimately familiar with each other can encounter grave difficulties in arriving at a common understanding of just what constitutes a reasonable outcome. To make matters worse, the definition of the term is intrinsically circumstantial.

Throw your mother-in-law out the window during a family fight and you’re probably headed to jail. Perform the same action when the house is on fire and you’re a hero. Same mother-in-law, same window — the circumstances of the defenestration determine its reasonableness.

Given the fluidity of the notion, it’s not surprising that an independent arbitrator is often required to figure out what is reasonable in a given case. Under our system of justice, that difficult task normally falls to the courts.

At present, the Supreme Court is contemplating two appeals that are enough to make one wonder whether the right to privacy has gone to the dogs. Fittingly, both arise from criminal prosecutions in Florida—a state that seems to suffer from chronic vexations in the practice of democracy.

In Florida v. Jardines, the court will determine whether a drug-trained police dog sniffing at your front door constitutes a search of your premises. If it does, the Fourth Amendment would require cops to demonstrate probable cause to believe contraband is present before they can come snooping around.

Florida v. Harris, on the other hand, asks the court to decide whether the state must demonstrate some minimal standards of proficiency before a police dog’s “testimony” can be relied upon to justify a physical search. Both cases have profound implications for the practical application of privacy rights.

The Jardines decision will hinge upon the legal definition of a search, while Harris challenges the purported reliability of a dog’s sense of smell. A study conducted by Lisa Lit of the University of California-Davis, and reported by Radley Balko of the Huffington Post, yielded rather provocative results regarding the latter issue.

Lit, a neurologist with experience in dog handling, tested 18 active dog/handler teams from various law enforcement agencies in an empty church. Though there were actually no narcotics or explosives on the premises, each handler was told there could be as many as three target scents present during the exercise. 

To further challenge the dogs’ discretionary abilities, handlers were told that certain “hot” packages were marked in red. Unwrapped sausages were placed in others, unbeknownst to the search teams. Each team conducted eight searches of about five minutes.

The findings were not encouraging for the scratch-n-sniff lobby. 123 of 144 searches resulted in false alerts. Some dogs alerted more than once in a given search, causing a total of 225 false hits during the experiment. Only 21 searches correctly concluded that no contraband was present—a success rate of 14.5 percent.

Interestingly, the dogs were almost twice as likely to hit on the red-tagged packages as they were on those that contained sausages — strongly suggesting that the handlers were either consciously or unconsciously cuing their animals. Because a trained canine seeks to please its master, it appears that the handler’s prejudice can influence the supposedly objective instrument of the dog’s olfactory sense.

On the street, the dog can thus provide the man with a no-fault verification of his own preconceived intuitions. You’re sniffed because the cop suspects you and searched because the dog senses its master’s suspicions. Catch-22.

The Jardines case addresses the sanctity of one’s domicile — where one’s expectation of privacy is greatest — and its implications are subsequently even more troubling. Remember that the Fourth specifically requires search warrants to be supported by sworn affidavits of probable cause “… and particularly describing the place to be searched, and the persons or things to be seized.” This provision was included to prevent so-called “fishing expeditions” — random visits from the authorities to ensure you’re not misbehaving.

Most of us give implied consent for people to approach our residence. That’s why we have doorbells. But if the behavior of a dog on your front porch can justify a search of your underwear drawer, your right to privacy has been effectively neutered.

At issue here is what is reasonable. One might anticipate, for instance, that the police would be granted greater latitude when conducting an emergency search for explosives than for a routine narcotics investigation because a bomb-building neighbor poses a more immediate peril than does a stoner smoking a doobie in his basement.

But when weighing security against liberty, it’s also reasonable to make a value judgment about just what kind of country we want to live in. Here’s hoping the court gets this one right and if it doesn’t, that enough citizens will still be sufficiently aware to demand legislative remedy.

If we don’t put some kind of leash on canine snooping, we could witness the sunset of liberty at the end of a dog-day afternoon.

M.W. Guzy is a regular contributor to the Beacon.

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