Saturday, February 23, 2013

Probable Cause on a Leash?

David Drumm, a guest blogger over at Jonathan Turley's law blog has a good post up on the contrived and fraudulent use of police dogs to create probable cause to search vehicles, people and property.

Though the Supreme Court recently issued a unanimous (9-0) decision in Florida v. Harris (2013) that deals with probable cause and drug detection dogs, that court decision only affects cases where the lawyer does not challenge the competency of the dog.  Here's a hint if you are busted: always challenge the competency of the dog.

This is not to say that the dogs are not good at what they do, but simply to say that what they do is not just smell, but also take direction (intentional or not) from handlers, and in more cases than you would imagine the dog is used as an instrument of a police frame.  Oh, you did not know that police lie all the time, and that they rather routinely frame suspects, plant evidence, take kickbacks, manifest overt racism and sexism, drink too much, and also sometime beat their wives?  Guess what?  They are human, and they do all that and more every day.  Lying, in fact, is a core part of police culture os far as it relates to getting an arrest.

So what does this have to do with police and other tracker and scent dogs?  Quite a lot.  You see,

An investigation of three years of data by the Chicago Tribune found that: “only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia.” When considering Hispanic drivers, the success rate fell to 27 percent. Justice Kagan, writing the opinion of the Court, noted that in such cases, “the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.” Such an hypothetical claim is a little too convenient and should raise suspicions about its validity. According to J. Kagan, a dog’s alert “establishes a fair probability—all that is required for probable cause—that either drugs or evidence of a drug crime … will be found.”

Bottom line:  Any search based on a dog's "alert" should be challenged, and the dog's handler asked to produce documentation from a competent third party evaluator that the dog has actually passed a true double-blind test. Many police dogs have not.  And if more police dogs can, then how will that harm the cause of justice or the plight of dogs and dog trainers?

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