The Fourth What? - Part II

It was maybe 15 or 18 years ago, in the United States District Court for the Middle District of Tennessee two federal judges were hearing suppression motions the same week.  Both cases involved traffic stops where dogs had been brought out, sniffed the cars, and scratched at a door or barked or licked their balls or whatever those particular dogs did that indicated to their handlers that they'd smelled something druggy.  The defendants had gotten into the record in each case that when the dog at issue alerted (might have been the same dog, actually), drugs were found something like 35% of the time.

So the question:  When a dog alert leads to the discovery of drugs around 1/3 of the time, is the alert probable cause to search?  (If there's a car, you don't need a warrant, just PC.)  And the answer: One judge said yes.  The other said no.  (Which tells you pretty much all you need to know about how arbitrary justice is in the US of A, or at least the Middle District of Tennessee.)

Anyway, the criminal blawgosphere has been running full-bore ahead with Fourth Amendment issues lately.  (See Orin Kerr, Scott Greenfield, Publius [and his co-contributors and commentariat at Affirmative Links], Gamso, Rick Horowitz, Gideon, and probably half a dozen others I'm unfairly not mentioning [sorry folks].)  Aside from one commentator thinks the rest of us (maybe not Kerr, though maybe him, too) misguided, we all pretty much agree that the 4th is a noble idea honored far more in the breach than in practice.

Mostly, we've been carrying on about exceptions and the exclusionary rule and when the exceptions swallow the rule and how when you get down to it, pretty much whatever the cops do is fine.  But I want to go back to that dog sniff thing, because it gets at a fundamental problem:  Probable cause.

Here's what you need to know about dog sniffs.

First, most courts say that they're not searches, at least not usually.  Here's the Fourth Amendment.

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.

And here's the syllogism.   

• If something isn't a search, none of that matters.  
• A dog sniff isn't a search.  
• Therefore, none of that matters.

It started with luggage at an airport in US v. Place.

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 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.

In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent's luggage, which was located in a public place, to a trained canine — did not constitute a "search" within the meaning of the Fourth Amendment.

Then it expanded.  There may be exceptions here and there, but the general rule now is that a dog sniff is not a search.  Because it's not a search, the Fourth Amendment is simply irrelevant to it.  No need for probable cause or a warrant or even a by-your-leave.  So say the courts.  

But a dog sniff, even though it's not a search, does generate Fourth Amendment searches.  As the court inaccurately says in Place, "the sniff discloses only the presence or absence of narcotics."  Except it doesn't.  The sniff reveals, at most, that chemical traces of narcotics are in the vicinity of what's sniffed.  Drugs may be there, may once have been there, or may now (or earlier) have been nearby.  That's it.

And that brings us back to the Middle District of Tennessee.  See, when a dog alerts, there will be a search.  If a dog alerts to a car, they won't bother with stuff like warrants because cars are special and the warrant part of the Fourth Amendment doesn't apply to them.*  But what if the dog's proved unreliable?

I've tried to pursue that issue in state court in Ohio.  Our local appellate court maintains that the drug dog's actual track record is irrelevant.  One percent?  Ninety-percent?  Doesn't matter.  Any alert is probable cause to believe drugs present.  And since the dog's accuracy rate is irrelevant, we're not entitled to it and a court order that it be delivered should be reversed.

But how can it be, you ask, that the dog's record is irrelevant?  Maybe in the middle, but at the extremes?

Ah, how little you understand, grasshopper.  It's because of those words "probable cause."

Now, if you're not a lawyer, you might think that probable cause means something like "probably."   You know, there's "probable cause," so it must be "probable."  The courts (and they're the ones who decide these things, after all) take a different view.  

The Supreme Court says "probable cause" is enough cause for a reasonable person to believe it, but maybe not enough to make it more likely than not. Got that? When it's probably not true but reasonable people would believe it anyway, that's probable cause. Really. Honest. Here's the language from Texas v. Brown (admittedly a plurality opinion, but everyone accepts it).

As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).

Probable cause means a "probability."  There's a chance that the Sun will explode tomorrow ending the very existence of our planet.  It's really unlikely.  Astronomers figure the Sun should keep roughly as it is for another 4-5 billion years.  But, hey, there's a probability.  Just a verrrry teeny one.  Probable cause.**

So there you have the absolute key to the Fourth Amendment.  When it's more likely than not that the evidence or contraband will not be found, when the search will probably be invasive but useless, they're supposed to issue a warrant.  When it's even less likely than that, the police get to detain you until their suspicions are allayed.

The United States had, last I looked, a larger percentage of its population behind bars than any other country.  Now you know why.

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*As Casey Stengel used to say, "You could look it up."  I'll save you the trouble.  The case is Carroll v. United States and then all the cases relying on it.

** There's also reasonable suspicion, which allows the police to detain people long enough to dispell their suspicion.  Reasonable suspicion, the courts tell us, is a less demanding standard than probable cause.