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Join the conversation! There are now 20 comments on this chapter's page 83. Dog Sniff vs. Privacy. What are your thoughts?
  1. Had to give Sis some bangs. She looked weird without them.

  2. And if you actually happen to be tripping balls as you read this, here’s a picture just for you:

  3. So, you have an expectation of privacy except when the government decides you don’t, and I suppose the dog isn’t the government because it isn’t human, and thus is not limited by the 4th amendment.

    • No, that reasoning wouldn’t work at all – the dog is a tool being used by the government. (Fun side note: pets and animals in general are usually considered property under the law. This can become… emotionally difficult when legal issues come up for pet owners.)

      My suspicion is that this all works because the dog is only trained to detect contraband, and you’re legally considered to have no legitimate expectation of privacy when it comes to contraband. So if the dog detects something, it will necessarily be something that you wouldn’t have had a legit expectation of privacy about.

      And since it comes up every time: yes, I know that dogs can be cued by police officers in order to get pretext to do a search, but that’s not something specific to dogs. That’s police officers behaving badly, and so it’d be handled by whatever methods we use when police behave badly. I don’t think we could get away with arguing “Well, some police officers have used guns to shoot people they knew weren’t a danger, so police shouldn’t be allowed to carry guns.”

      • One major problem that is generally unrecognized by the courts is the “Clever Hans” effect. Animals are very keen to please their handlers, and are very good at picking up cues — even when the handler isn’t intending to do so.

        If a K9 handler were to take a drug dog and intentionally signal it to say there’s drugs in a car, that would be police officer misconduct. If the signalling was completely inadvertent and unconscious on the part of the handler, it would be harder to say it was misconduct, but it would get more searches done.

        There have been tests done to check if this is the case: researchers took a bunch of K9 teams and had them search a building with hidden drugs to test the accuracy of the dogs. Some of the teams they told the handlers where the drugs were, some they didn’t. All of the teams were good at finding where the drugs were hidden. Except it was a lie: the researchers didn’t hide any drugs; the dogs still “found” them, and when the handlers “knew” the hiding spots, that’s where the dogs “found” them.

        We couldn’t get away with saying “Well, some police have used guns to shoot people they knew weren’t a danger, so police shouldn’t be allowed to carry guns”, but we could get away with saying “The cops legitimately drew on these suspects, but the evidence shows the guns fired even without the officers pulling the trigger. Maybe we should stop using that make of gun.”

        • Don’t take my comments as saying I support the current system. You’re absolutely right, that research suggests that dogs are not as good a tool as we might have originally thought. I would love to see if that argument ever makes it to the Supreme Court.

        • The reliability of police dogs definitely needs to be studied more.

          But as we’ll see in a couple of pages, a dog sniff doesn’t have to be infallible. It only needs to be reliable enough to give the police probable cause. [Only a Sith deals in absolutes.]

          I suspect the courts would need to find that dog sniffs are generally unreliable, before going so far as to say they can’t give rise to probable cause.

          • So, are you saying strict liability laws and regulations were written by the Sith? I always suspected that government bureacrats were secretly sith.

        • I remember a recent study on the “clever Hans” effect with drug-sniffing dogs. It found that about 70% of their ‘alerts’ were actually to handler expectation response. How does such a high false-positive rate fall under law, with regard to ‘reasonable suspicion’ and all that?

  4. Andrew says

    So what is your take on the future of K-9 units in light of Florida v. Jardines? There it was ruled that K-9 units could not be used for warrantless searches or to “intrude on persons, houses, papers, or effects for the purpose of obtaining information.” This taken from the majority opinion. It was my understanding that much of the ability police officers have to search and interact with cars, along with our own privacy expectations, is derived from cars being considered some form of mobile personal space. Wouldn’t it be a short jump to state K-9 units could not search cars based on this ruling?
    As a follow up, check out the evidence presented in this case if you haven’t done so already. Numerous scientific studies proving that the dogs aren’t typically even signaling for the drugs, but rather byproducts of the drugs. These same chemical byproducts are typically found in numerous everyday cleaners and household products. Also cited as evidence was that in Chicago, body language cues from the police officers, many not even consciously doing so, led to incredible amounts of false positive signals against hispanics. There was ultimately only an 8% chance in recent years that a positively signaled hispanic would have any drugs on them at all.

    • Jardines is an interesting case. It’s really not saying anything about dog sniffs, though. All it’s saying is the police need a warrant (or some exception to the warrant requirement) before they can go on your property to look for evidence.

      Writing for the majority, Scalia went out of his way to explain that it’s irrelevant to point out that a dog sniff doesn’t invade a privacy interest. The issue isn’t the method of gathering evidence once on your property, but whether the police could go on your property in the first place.

      There’s a “sanctity of the home” policy at play here. Your privacy interests are strongest in your own home. The same protection wouldn’t apply to a backpack you’re lugging around in public. And it certainly wouldn’t apply to a car, which due to public safety concerns and its heavy regulation and everything else has the barest minimum of Fourth Amendment protections.

  5. KW says

    I haven’t seen any discussion of this, but can dogs be used to provide a “in plain view” look? Something smelly in a trunk is certainly in plain view from a dog’s viewpoint.

    • “Plain view” is about whether the police officer conducting the search saw it himself in plain view.

      Dog sniffs don’t give the officer a view; instead they give the police officer reason to believe contraband is located where the dog alerted.

      Keep reading.

  6. Eric says

    If this is a legit DUI checkpoint, why is there a K-9 unit? They can’t be stopping cars looking for contraband so there should be no need for one. (I’m guessing “purposes of illustration”). One could be summoned I suppose, which raises the question of how long someone could be detained while waiting for the K-9 unit to arrive.

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