The Fourth Amendment prohibits unreasonable searches and seizures from taking place without a warrant based on probable cause. Yet every day, law enforcement officials (LEO), without probable cause or even reasonable suspicion in many cases, use canine units to search the vehicles of law abiding citizens.
Last year, the U.S. Supreme Court held that LEOs cannot bring drug-sniffing police onto a citizen’s property to look for evidence without first obtaining a search warrant. The decision was 5-4 and written by Justice Scalia who led the Court’s liberals in the opinion.
Essentially, police were (like mailmen, they claim) walking onto private property with dogs to search for criminal indicia. The only problem is that the police force was attempting to bypass the judicial review process. The Court held that the police cannot, hang around on the lawn “trawling” for evidence and “perhaps peering into the windows of the home,"
But police do the same thing every day with police dogs and motor vehicles. While it is true that the Supreme Court has wrongly disregarded the Fourth Amendment’s protection to those driving in their motor vehicles, it is also worth considering whether a canine search is an exception that swallows the rule.
A law abiding citizen is pulled over on a public road for speeding. The officer believes the citizen’s behavior is strange and requests permission to search the vehicle. The citizen declines the search, as is his birthright as an American. Police then (without detaining the person for an unreasonable amount of time) call out the canine unit to sniff out drugs and weapons from outside the vehicle.
The citizen then sits on the side of the road, in front of his home, neighbor's home, place of employment, church, community grocery store or some other place where members of the community are likely to see him being detained for a drug search. The canine unit then arrives.
The dog will walk around the vehicle. The officer will not explain to the citizen what actions the dog must take to initiate a full search, in actuality there will never be any accountability for the officer's following claims as the canine unit is under such specialized training.
Should the dog “alert” its handler to contraband, the officer may then request that the citizen exit his vehicle. The dog may then romp through the car seeking contraband.
Is a citizen’s expectation that being stopped for a speeding ticket shouldn’t result in a search of their vehicle by intimidating dogs -- unreasonable?
What level criminal suspicion arises from a dog “alert.” Is it reasonable suspicion? Probable cause? Who can determine whether a police officer subtley manipulates a dog with a motion of his hand or a step in the right direction to alert when no other sign of contraband is present. Are canines ever mistaken?
Police often warn citizens upon stopping them that they can either submit to the search or be searched by dogs, “the choice is [theirs].” Not much of a choice.
If the Fourth Amendment provides protection to refuse a search of one’s vehicle, what effect does a pack of dogs sniffing out contraband have on that? If a refusal subjects the citizen to the treatment of a criminal in a drug house, does not the exception swallow the rule?
"Unreasonable" can often be in the eye of the beholder. Old judges that drive to work in nice cars, buy lunch at work and drive home to nice homes have no idea how much of a home-away-from-home or even a substitute-home a motor vehicle can be for a citizen.
Many people who cannot afford a home, can afford a car. It may not be a nice car, but for many Americans it is the only thing of value that they can call their own. A
A person’s car can be their own personal home, bed or restaurant. It can be their fortress of solitude or where they go to “get away from it all.” For students it is the vehicle of their future and the ride that takes them home again. Many younger Americans have slept in their car, kept food in their car along with a change of clothes in their car. Americans keep money in their cars, we carry our children in our cars and we take pride in our cars. We polish our cars, we clean our cars.
Our cars are a reflection of who we are. They represent us. They are us. When we pull into the parking lot of elementary schools to pick up our sons and daughters, those little ones identify us by the car that we drive. And yes, many of us hold a reasonable expectation of privacy that driving to work, school or church does not force us to submit to a canine search. If the Fourth Amendment protects us in our person, papers and effects, then it must protect us in our car. Did not the founders believe that the papers carried in the saddle of one's horse required a warrant to be seized?
Does it matter that a vehicle is driving on a public road? The Fourth Amendment does not contemplate such a distinction, nor should it. A public road is not owned by police or governments but by the people who funded it to build it. Why should our rights be suspended on shared property anymore than property wholly owned by one person? Do citizens suspected of carrying contraband pose any greater danger on the road than in their home?
Canine searches of any kind must require a warrant because the practice is demeaning to the innocent and an exception that swallows the Fourth Amendment's main purpose.