SCOTUS Goes To The Dogs

FILE - In this Dec. 6, 2011 file photo, Miami-Dade retired narcotics detector canine Franky looks on during a demonstration i
FILE - In this Dec. 6, 2011 file photo, Miami-Dade retired narcotics detector canine Franky looks on during a demonstration in Miami. Franky the drug dog's super-sensitive nose is at the heart of a question being put to the U.S. Supreme Court: Does a police K-9's sniff outside a house give officers the right to get a search warrant for illegal drugs, or is the sniff itself an unconstitutional search? (AP Photo/Alan Diaz, File)

I don't know that you could overstate the awfulness of yesterday's unanimous (!) Supreme Court decision in Florida v. Harris.

Over at Reason, my former colleague Jacob Sullum has a pretty thorough analysis of Justice Elena Kagan's opinion.

I made this point when I wrote a piece previewing the cases, but it's worth making again: The Supreme Court desperately needs a justice or two who have significant criminal defense experience. I want to pull out a couple passages from Sullum's analysis to illustrate.

When a dog alerts and no drugs are found (as happened twice in this case), "the dog may not have made a mistake at all," Kagan says. Instead it "may have detected substances that were too well hidden or present in quantities too small for the officer to locate," she suggests. "Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver's person." This is a very convenient, completely unfalsifiable excuse for police and prosecutors. But probable cause is supposed to hinge on whether there is a "fair probability" that a search will discover evidence of a crime, and the possibility that dogs will react to traces of drugs that are no longer present makes them less reliable for that purpose . . .

Kagan says the uncertainties of the real world "do not taint records of a dog's performance in standard training and certification settings," because "the designers of an assessment know where drugs are hidden and where they are not." That is precisely the problem when the designers are the dog trainers, as is usually the case, because they may deliberately or subconsciously indicate the locations of the drugs. Lawrence Myers, a veterinarian and neurophysiologist at Auburn University who is an expert on dogs' olfactory capabilities, observes: "Typically if a cop says, 'I train the dog every week,' he's hiding things and then going around and finding the things he's hidden. Putting something out, you as the handler, then taking the dog through, you are going to seriously skew the training; you're going to cue. You can't help it; you know exactly where the damned thing is." . . .

Whether you agree with Kagan or Sullum here depends on your general view of police. It goes back to public choice theory. Sullum views police as flawed human beings who respond to incentives, including perverse ones. (I share this view.) Kagan (and her fellow justices) can't imagine why police would want a drug dog that falsely alerts. Sullum explains:

Police have a strong interest in making sure their dogs are reliable, so we can trust their assurances on that score. "After all," writes Kagan, "law enforcement units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources." Here she echoes Justice Antonin Scalia, who during oral argument in this case last October seemed flabbergasted by the idea that a drug dog might be unreliable or that police might exaggerate its reliablity. Yet police may value a dog that alerts promiscuously if their main goal is to justify searches they want to conduct based on suspicions that otherwise would not amount to probable cause (or if they are looking for cash to seize). Once a search has been conducted, the officer seeking to justify it has a clear interest in exaggerating his dog's abilities.

The Supreme Court has always been reluctant to question the motives of police officers. But you needn't think that police officers are terrible people to understand why an officer might want a drug dog that tends to confirm the officer's own hunches. Most of us tend to think our hunches are correct much of the time (or we wouldn't have them). A compliant drug dog allows an officer to follow his own instincts without the hassle of procuring a search warrant. It's why drug dogs are sometimes called "probable cause on a leash." But the entire reason we have a Fourth Amendment is to protect us from being searched every time a hunch or suspicion crossed the mind of a law enforcement official.

As Sullum suggests, asset forfeiture by itself is an incredibly powerful incentive for police to want drug dogs that confirm their suspicions, even if that means regular false positives. In fact, though a drug dog's alert in itself shouldn't in most states be enough to trigger a forfeiture action, it certainly goes along way. Combined with two or three other otherwise innocuous "indicators of criminal activity," it can begin a process in the government takes your stuff, and even if you're completely innocent, it can cost you more to fight to get your property back than the property is worth. There's also the matter of quotas, real or implied. If I'm a cop whose performance reviews and potential promotions are based on how many drug arrests and drug seizures I make, I'd want a dog prone to false positives way before I'd want one prone to false negatives.

This is why Kagan's dismissal of drug dugs' poor records in the field fails to pass the smell test. (Sorry.) Kagan writes field statistics are flawed because in false alerts, dogs may actually be alerting to remnant odors of drugs. She then writes the stats are further skewed because a false negative isn't going to be recorded.

Her error here once again is the failure to recognize incentives. No police department wants a dog that might err on the side of false negatives. Any dog demonstrating that proclivity in training tests run by its handler won't remain a police dog for long. Trainers I've talked to who supply drug dogs to police departments have told me that drug dogs can be trained not to alert to the presence of remnant odors or unmeasurable quantities of drugs. Police departments tell trainers they don't want the dogs trained that way.

A Supreme Court justice who has spent some time in the guts of the criminal justice system would understand all of this. Or at least be more likely to understand it. They'd have seen enough examples of cops "testilying," exaggerating probable cause, abusing asset forfeiture to understand that, yes, there are plenty of reasons why a cop might want a dog that's prone to false positives. Instead, we get a unanimous court clinging to the fiction that cops are immune to perverse incentives, and always act in the interests of justice.

For all the talk about the need for more ethnic, gender, religious, or political diversity on the Court, you rarely hear anyone clamoring for justices with some criminal defense experience, even though appellate judges from that field have always been underrepresented. Not to mention that these are among the most important decisions the Court makes. But the problem has been particularly pronounced over the last generation. Criminal defense hasn't been underrepresented, it hasn't been represented at all. There hasn't been a justice on the court with any criminal defense experience in over 20 years -- since Thurgood Marshall retired in 1992.

It would be one thing if the justices in these cases were considering all the best arguments for stronger protections for the accused, analyzing, then explaining why they're flawed or outweighed by other interests. But it's becoming increasingly apparent that they often don't even know what the best arguments are.



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