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0:00:12.5 LEON: Hey everyone, this is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Illinois v. Caballes. In this case, a man was arrested during a traffic stop when a drug sniffing dog detected the presence of marijuana in his trunk. A lower court ruled that using a dog during a routine traffic stop was unlawful. The state of Illinois appealed.
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0:00:50.6 LEON: In the end, the court ruled that a dog sniff was indeed not a search further eroding the Fourth Amendment right to be free from Unreasonable Search and Seizure. This is 5-4 a podcast about how much the Supreme Court sucks.
0:01:08.1 LEON: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have confiscated our liberty like airport security confiscating my water bottles. I'm Peter, I'm here with Rhiannon.
0:01:14.8 RHIANNON: Hey.
0:01:18.0 PETER: And Michael.
0:01:23.2 MICHAEL: Hey everybody.
0:01:25.2 PETER: We're back.
0:01:25.9 RHIANNON: Dehydrated.
0:01:26.9 MICHAEL: Yeah.
0:01:28.4 PETER: Quite. Yeah. Here's my story. As real heads know I was on vacation, I was in Buenos Aires and on the way back as we were about to board the plane, they announced no liquids, which is like the rule when you're going through airport security. No liquids except I'm talking at the gate meaning we went through security, bought the bottles of water that they sell you.
0:01:52.2 MICHAEL: At the Buenos Aires Hudson News or equivalent. Yeah.
0:01:57.2 PETER: Right. And then they were like, no, you have to dump those out. And you're just at the mercy of whatever water they give you on the plane and the feeling of going into a 12 hour flight without a water bottle really disheartening. And I also wanna mention that the lady that searched my bags for water was giving me a tone as if water is in fact just straight up the most dangerous substance on Earth.
0:02:19.1 RHIANNON: Contrary. Yeah.
0:02:20.9 PETER: She was like, do you have water in these bags? I was like, no. But if I did, so what? I don't think it would be a big deal. Anyway, I was just at the mercy of a single bottle of Dasani that they gave me on Delta for the whole 12 hour flight. And I won't stand for it, frankly.
0:02:44.4 MICHAEL: Never going to Latin America again. That's that.
0:02:49.0 PETER: Absolutely.
0:02:50.1 MICHAEL: So I, similar vein, I was running late to the airport like so late that I'm like Googling on the way, like how late to still check bag sort of thing. And it's like 45 minutes and I get there, I run up to like the kiosk to check in. It's literally exactly 45 minutes before my flight as I'm like putting in my confirmation number. By the time I finish putting that info in, it's now 44 minutes until my flight and they won't let me check my bag. And it's like, see a gate agent. And so I like turn around, I walk over sort of like looking at the counter. There are like these four ladies. One of them looks at me, ignores me, another one looks at me, gets up and walks away. And after a few minutes, one of them goes, do you need something? And I was like, yes. She goes, sir, the line forms over there and points to a spot two feet to my left. So I walk two feet to my left and turn around and the lady is now looking down at her computer again and ignoring me. And then she looks up, looks at me right in the eye and goes next in line.
0:04:02.3 MICHAEL: So I walk up and I explained to her, what's going on? She's like, oh, my manager could check your bag for you. But she just walked away. She's the lady who walked away, looked at me and walked away. And she's like, you can't check your bag and you have to carry it on. I'm like, well, I have liquids in it. And she's like, okay, well you're gonna have to take them out. And as I'm like taking them out she's like I'll throw them away for you but then she's like taking my shit and been like this is [0:04:32.4] ____ right in front of me been like, yeah I'll take that.
0:04:38.7 RHIANNON: Yeah. Airports.
0:04:41.4 PETER: Little fiefdoms.
0:04:41.9 MICHAEL: Yes.
0:04:42.1 RHIANNON: Uhhuh.
0:04:42.7 MICHAEL: Yes.
0:04:45.7 PETER: I will say I really liked Buenos Aires. Was it worth the dehydration I experienced on the flight back? I still don't know.
0:04:54.5 RHIANNON: My sensitive boys, my two sensitive boys.
0:04:57.0 PETER: All right. Today's case, Illinois v. Caballes. This is a case about the Fourth Amendment, and specifically about drug sniffing dogs. Drug sniffing dogs have for many years, been a bit of a gray area within the Fourth Amendment. When can cops bust out a dog? Is a dog sniffing your property even a search? In this case, a man was pulled over in a routine traffic stop. One cop for no specific reason, brought a drug sniffing dog to the scene and had the dog sniff around the car. Jackpot. Dog smells about a quarter million dollars worth of marijuana. The man was arrested and he ultimately brought this case saying that these search was unconstitutional because the cops didn't have cause to search his vehicle at all. But the Supreme Court in a six to two decision said it was fine because drug sniffing dogs don't really count.
0:05:55.9 RHIANNON: Yeah. That's the summary. That's the top line takeaway here. Jumping into the history of drug detection dogs. Dogs used by law enforcement to sniff out drugs on people. Dogs have been used by law enforcement since the late 1800s, late 1880s in Belgium, in Germany, in Europe is really where it started. Everybody probably knows the reference to Bloodhounds being used in the investigation to find Jack the ripper in Great Britain, this has been going on for a long time, but in the US, in terms of drug detection specifically, and dogs being trained to sniff out drugs by American law enforcement, there was a huge boom in the 1970s that coincides with the war on drugs, obviously. And so that's really the start of the modern drugs sniffing dog that we all know about.
0:06:51.4 RHIANNON: The image in your mind of the German Shepherd sniffing around your car, sniffing in the airport. That's really when it starts. So, jumping into the background, the specific facts of what happened to Mr. Caballes in this case, this is November, 1998. Mr. Caballes was driving down the interstate in LaSalle County, Illinois when he was pulled over by a state trooper for speeding. Now let's pause and talk about the speeding. What's the speeding allegation? 71 miles per hour in a 65 mile per hour zone. That's rough guys. That is rough.
0:07:31.2 PETER: Brutal.
0:07:32.5 RHIANNON: Six over.
0:07:34.3 PETER: You know, he was like, all right, I have to drive like a normal person while I'm transporting these drugs. I'm not gonna go 65, no one does that. I'm gonna go five over the perfect speed.
0:07:47.2 MICHAEL: Yes.
0:07:47.8 PETER: This is the worst luck in the world.
0:07:50.2 RHIANNON: Yeah. Pulled over for it by a state trooper who radios the police dispatcher that of course he is making a traffic stop. So another state trooper overhears that transmission overhears the first trooper calling in that he's making a traffic stop. And the second state trooper who overhears it announces himself completely sua sponte just by himself, no other input from anybody. Announces to the dispatcher that he's gonna meet the first state trooper at that traffic stop because he has a drug sniffing dog in the back of his cop car and he wants to conduct a canine sniff.
0:08:30.2 PETER: Yeah. Again, this guy's luck is horrific. Just brutal.
0:08:35.2 RHIANNON: Yes. It really is. It really is. So the first state trooper meanwhile conducts what is a normal traffic stop. Informs Mr. Caballes that he thinks that he was speeding, ask for his driver's license, gets vehicle registration, proof of insurance, all of that stuff. Mr. Caballes complies with that request and the first state trooper tells him he's only writing him a warning ticket for speeding. He goes back to his cop car calls the dispatcher is doing all of the cop car things, checking for warrants, all of that stuff, and writing out the ticket. So while the trooper is writing out the warning ticket, the second trooper with the drug sniffing dog arrives, the trooper with the dog, takes the dog around Mr. Caballes' car, and the drug detection dog gives a positive alert to marijuana in Mr. Caballes' trunk. They search the trunk, they find $256,000 worth of marijuana in the trunk.
0:09:46.2 MICHAEL: It's unreal that they needed a drunk dog to detect that. That is a lot.
0:09:50.5 RHIANNON: It's kind of crazy that if it was just in the trunk that they didn't smell it themselves. Human smell of... Like a human ability to smell the marijuana.
0:10:00.8 MICHAEL: It's so much. That's so much marijuana.
0:10:02.0 RHIANNON: Yeah. But you know, maybe it was wrapped.
0:10:05.7 PETER: This is also... This is 1998, to be clear. So I don't know what the cost of weed was, but that is a lot of weed. That is a lot of weed.
0:10:15.4 MICHAEL: I don't even think that would like fit in like the trunk of my smaller car.
0:10:20.7 RHIANNON: Yeah. Right.
0:10:21.4 MICHAEL: It's gotta be a big trunk. I bet it's a big trunk.
0:10:25.0 RHIANNON: Right. Now, Mr. Caballes was of course charged with cannabis trafficking. At trial Mr. Caballes' defense attorney filed a motion to suppress. Saying that this drug detection dog, that was an additional search. That was a search that was unjustified under the Fourth Amendment, which we'll talk about in a little bit. The trial went on and Mr. Caballes was sentenced to 12 years in prison. And this is crazy to me, ordered to pay a fine that was equal to the street value of the drugs.
0:10:57.2 PETER: What?
0:11:00.3 RHIANNON: Ordered to pay a fine of $256,000.
0:11:01.3 MICHAEL: Bro, he didn't get to sell it. Where's he gonna get that?
0:11:05.2 PETER: Right.
0:11:05.9 RHIANNON: Exactly. He didn't make money off of it. So after the trial, Mr. Caballes and his defense team take this up on appeal. And initially the Illinois Supreme Court agreed with Mr. Caballes. They said that the canine sniff was performed, "without specific and articulable facts to support its use, which unjustifiably enlarged the scope of a routine traffic stop into a drug investigation." This is a violation. The Illinois Supreme Court said of Mr. Caballes' Fourth Amendment rights, which basically state based on lots of case law, lots of precedent that if you're stopped for a traffic stop the scope of that investigation, any search, the cop checking, your driver's license registration, that kind of thing, that all has to be contained within the scope of a traffic stop. You can't be adding without justification, without any real suspicion. You can't be adding additional searches. The Illinois Supreme Court agrees with Mr. Caballes, and of course the state of Illinois appeals that decision that's how we get to the Supreme Court.
0:12:10.7 PETER: Right. So let's talk about the law for a moment here. The Fourth Amendment says you can't conduct unreasonable searches and seizures. What exactly that means is a hot topic, especially in the context of traffic stops. The basic ground rules are you can be pulled over if the cops have a reasonable suspicion that you have violated the law, but they can only search your car if they have probable cause to believe it will turn up evidence of a crime. In practice what this means is that they need a little bit of evidence to pull you over and a bit more to actually search your car. But the question remains, how much evidence do they need to have a dog sniff around your car for drugs? And the answer the court gives in a six to two opinion written by Justice John Paul Stevens is none. No evidence. No evidence at all.
0:13:05.1 PETER: As long as the initial stop was constitutional, cops can bring a dog along and have it smell all around your car just on the off chance that you have drugs. And if they find any, you're fucked. Now, the reasoning that they use for this is that the load star of the Fourth Amendment is the expectation of privacy. Meaning that something only qualifies as a search under the Fourth Amendment if it violates someone's reasonable expectation of privacy. So what Steven says is, look, a drug sniffing dog only identifies contraband, and you can't have an expectation of privacy in contraband because it's inherently illegal. So I guess if you strip away some of the legalese, what he's saying is like, look, the dog isn't invading your privacy because the only thing it's capable of finding is something that is illegal for you to have. Now there's a glaring issue with this.
0:14:00.8 RHIANNON: Big.
0:14:04.3 MICHAEL: Big one.
0:14:06.5 RHIANNON: Big.
0:14:09.7 PETER: And it is the question of false positives. The court says that drug sniffing dogs aren't invading your privacy because the only thing they are capable of finding is illegal drugs. That's not actually true because drug sniffing dogs aren't 100% accurate. There are false positives.
0:14:25.3 RHIANNON: Of course.
0:14:26.7 PETER: This is an argument that Caballes raised, and all Steven says in response to that is, "Although respondent argues that the error rates, particularly the existence of false positives call into question the premise that drug detection dogs alert only to contraband the record contains no evidence or findings that support his argument." Now, first of all, I don't think that's true because Souter in his dissent points out that the state cited a study that included false positive rates. But...
0:14:55.6 RHIANNON: So it is in the record.
0:14:55.7 PETER: Right. I mean, maybe he meant the lower court record. Right. But second, if it's true that there's no evidence of error rates on the record, then why is the court assuming that the error rate is 0%? Why do you need evidence to show that false positives exist, but no evidence to show a 100% success rate?
0:15:19.9 MICHAEL: It's wild.
0:15:21.4 RHIANNON: Dumb.
0:15:24.1 PETER: On top of that, there is an issue that the court doesn't address at all, which is that even if it's not a false positive, you may have situations where an innocent person is searched and drugs are found. So the most obvious case is if a passenger unbeknownst to the driver and owner of the car is holding drugs. In that case, the dog identifies drugs and the car can be legally searched, even though the driver himself has committed no crime. Meaning the driver who again, has done nothing wrong is having his or her privacy violated. The majority just ignores all of these realities. We exist in a fantasy world where no innocent person could ever be impacted by this rule in the majority opinion.
0:16:09.2 RHIANNON: Yeah. And I also wanna go back to like this framing of the drug detection dogs as perfect as never having false positives. The complete dismissal of that issue being brought up. So my thought is related here, but walk with me. Steven says that the drug seeking dogs only alert to contraband. They're only trained to say when something illegal is happening. And therefore, Steven's concludes there's no problem with the Fourth Amendment because you don't have a reasonable expectation in holding contraband and doing something illegal. This is a very strange demented framing of the Fourth Amendment because that explanation doesn't work for cops. You could say the same about cops. Cops are trained to identify only illegal activity. That's their point. They don't arrest you for legal activity. I mean they do, 'cause they fuck up just like drug sniffing dogs do.
0:17:14.7 RHIANNON: Sometimes a lot more maliciously in the case of the police. But cops are also "designed", "trained", to identify illegal activity. The Fourth Amendment means that you have a reasonable expectation of privacy in certain zones on your person, in your place, in your papers, in spite of your potential illegal activity in those spaces. And so just saying that a drug sniffing dog is somehow different because number one, I guess we're just assuming they're accurate all the time in their drug detection. But number two, because they're trained or designed in some way different than criminal investigation in general is incredibly, incredibly inaccurate and misleading.
0:18:02.5 MICHAEL: Yeah. He's doing something analytically very sloppy.
0:18:06.0 RHIANNON: Yes.
0:18:07.5 MICHAEL: So he's saying like, look after the dog alerts, of course there's a search, and of course there will be a violation of your expectation of privacy. But now we have probable cause for that search. And so this is a settled thing. We have probable cause to believe that there's contraband. And so the invasion in your privacy is justified and it's reasonable. And the drug sniff, the initial dog sniff itself is not a search because the dog doesn't sniff your trunk and then look to its owner and say, yeah, he's got two thumb drives, a hustler magazine and an old sandwich in there. The dog either says contraband or no contraband. And that's it. So Stevens wants you to think of the dog sniff and the subsequent search as two separate events that should be analyzed completely independently. And so he wants to look at the dog sniff and says, well, there's no real invasion of privacy here, and dogs are pretty reliable. We don't really have anything in the record about false positives and all they can do is alert to drugs so this is fine for the Fourth Amendment.
0:19:33.0 MICHAEL: And then he says turning to the search, Well, we have probable cause to search. So of course there's an invasion of your privacy, but the dog alerted, so we have probable cause and it's consonant with the Fourth Amendment and this sort of two-step independent analysis is nonsense. If the dog alerts, you're going to get searched. So you can't just pretend like that subsequent invasion of privacy is independent of the dog sniff. Right. And once you accept that the dog sniff can lead to an invasion of privacy, then it needs a full robust Fourth Amendment defense. And you need to not just assume that it's very, very reliable. You need to demonstrate that it's very, very reliable. And I think the owner should be on this state to say that these dogs are so fucking great that they essentially circumvent the Fourth Amendment. Right. You should be able to prove that. And Stevens just tries to analyze his way out of that conundrum. Badly.
0:20:44.1 PETER: God, I hate that. He's like well, I don't see enough of this in the record. Okay. Well it's by far the most important material point in this whole fucking discussion. [laughter] So send it back to the trial court for a more developed record. What are you doing? What are you doing? Oh God. There's another issue that the majority does not reckon with at all, which is that the point of the Fourth Amendment isn't just to protect your physical privacy, it also protects your dignity. Right. This is something that the court has talked about sort of offhand in some cases. And there's some scholarship about it, but then the court just like strategically ignores it whenever it's convenient. So the way that the court has done these analyses historically is by balancing your rights to liberty and privacy against the needs of the police.
0:21:31.9 PETER: But what really undergirds both of those, your right to liberty and your right to privacy, is your right to your dignity. Right. Your right to be like respected as a person and in your person. Any normal person who has interacted with police understands that being searched by police without reason or warning intrudes upon your dignity. Right. And there's this bottom line question here, which is like do police have the right in the middle of a traffic stop for speeding to functionally accuse you of a crime and then take material steps toward your conviction without even a hint of evidence that you have committed the crime. And the court is saying yes they do have that right. And I just think that's fucking absurd.
0:22:16.5 MICHAEL: So before we get into the dissents, I want to talk a little bit about Justice Stevens and Justice Breyer, who are two liberal judges who are joining this opinion. Stevens' writing it, and we've talked about this before, but it was a long time ago, I think. But they are both this sort of old school I think you could call them like a big government or status liberal. And they came up in a time when the federal government especially was the sort of liberal solution to lots of big social problems, right? The New Deal desegregation, Medicare and on and on and on the Voting Rights Act, et cetera, et cetera. And so their liberalism is sort of inflected by this idea that like the government should have a lot of power 'cause it does a lot of good things. And the police are an extension of the government. And so they tend to be very deferential to the cops and often have a broad reading of what cops should be able to do because the cops protect us from the criminals. And it's a strain of liberalism that predates the modern one that is far more attentive to structural inequalities in our society. Implicit bias, structural racism, and overt racism that we see today. Right? It's just an outdated form of liberalism.
0:23:49.6 PETER: And the other thing to explain here is that this is six to two because Rehnquist recused himself, Rehnquist spent several years in the '70s professionally kicking dogs. [laughter] So he passed to recuse himself from these types of cases.
0:24:05.2 MICHAEL: That makes sense. [laughter] That makes sense. [laughter] So let's talk to sense. [laughter] Souter's got a dissent, a pretty good one. He focuses very much on just the possibility of false positives is a real issue for this entire legal framework. Right. And this framework, it's based on a case from the '80s that basically said, well, dogs are special. Dogs are sui generis, which means like one of a kind and Souter's well look, maybe there was a reason to believe that in the '80s, but we're in the next century. We have decades of knowledge now and we know that they're not. And he quotes a bunch of circuit courts of appeals, and I'm just gonna read some of the numbers. 10th circuit describing a dog that had a 71% accuracy rate, 10th circuit describing a dog that erroneously alerted four out of 19 times, 7th circuit accepting as reliable a dog that gave false positives between 7% and 38% of the time. [laughter], that's barely better than a coin flip. 38% is barely better than a coin flip. 11th circuit noting that because as much as 80% of all currency and circulation contains drug residue, a dog alert is "of little value". Indeed. A study cited by Illinois in this case for the proposition that dog sniffs are generally reliable shows that dogs in artificial testing situations return false positives anywhere from 12.5% to 60% of the time.
0:25:44.3 RHIANNON: One in 10 to six in 10 the majority [laughter]
0:25:46.2 MICHAEL: Yes So depending on the dog, depending on the situation, depending on where you got your cash in your pocket, if a dog sniffs you it might be literally a coin flip, totally random as to whether or not it will alert. And if it does alert, you will be searched. And according to six members of the Supreme Court, that is fully consonant with the Fourth Amendment. And that's insane. That's nuts. And so Souter says, because dogs aren't reliable, it should be considered a search. And a dog sniff should require some sort of showing, like a probable cause showing like any other search would require and fit into the normal Fourth Amendment framework. And I think Souter is very strong on this point. He's very good on it.
0:26:40.5 RHIANNON: I think that's exactly right. I think it's a major issue that the majority does not contend with at all, except to say like you didn't bring it up it wasn't in the record, even though it was. Pretty disingenuous. Souter's dissent very strong. There's another dissent by Ruth Bader Ginsburg. I also think it's pretty strong. It's just on a different point. Justice Souter actually joins Ginsburg's dissent as well. And Ruth Bader Ginsburg's argument is about the scope of a search. How much search, how much seizure is allowed by the Fourth Amendment for what started as a traffic stop. And where there is no evidence, no indication of any illegal activity further than the traffic violation. Right. Ginsburg says, "the unwarranted and non-consensual expansion of the seizure here" she's talking about the seizure of Mr. Caballes in his car, "from a routine traffic stop to a drug investigation broadened the scope of the investigation in a manner that in my judgment runs afoul of the Fourth Amendment."
0:27:43.5 RHIANNON: So she's talking about, I mean there's decades of case law and precedent on this that is really, really clear that if you are seized under the Fourth Amendment, if you are searched under the Fourth Amendment, there is a scope to those seizures and searches that have to line up with what is initially suspected with what evidence the cops have for what they are investigating. Right. And the scope of the search can't extend beyond just because the cops want to search for something else without them having some evidence, some indication that there is evidence of something else. Right.
0:28:17.2 PETER: Literally just because some cop's just sitting there with his drug sniffing dog and he is like I wish I could sniff some drugs. [laughter]
0:28:23.1 RHIANNON: Right. Exactly.
0:28:24.5 PETER: What's the point of this fucking dog if I can't use him to sniff drugs?
0:28:28.5 RHIANNON: Yeah Let me let Rex go at it today. Like it's not enough. And then to Justice Stevens' point that it's okay to have the drug sniffing dog come and sniff for drugs because people don't have a reasonable expectation of privacy in having illegal contraband. Ginsburg says, "the court has never removed police action from Fourth Amendment control on the ground that the action is well calculated to apprehend the guilty". Right. That was exactly what I was saying earlier with like you have a reasonable expectation of privacy guaranteed to you by the Fourth Amendment in spite of your potential illegal activity. Right. That is the point of the Fourth Amendment. That's the point of the exclusionary rule. She cites some cases where this is super obvious, right. In United States v. Karo, the court said that the Fourth Amendment warrant requirement applies to the police monitoring of a beeper in a house.
0:29:22.4 RHIANNON: That the police can't just put a beeper in your house to monitor behavior. They need a warrant for that under the Fourth Amendment. And they can't justify just putting a beeper in your house without a warrant just because they believe that a crime is being or will be committed. And that monitoring the beeper, wherever it goes, is likely to produce evidence of criminal activity. Okay. There's another case that Ginsburg cites called Bond v. United States. This is about a person's reasonable expectation of privacy when they're on a bus. A cop came onto a bus and physically manipulating, touching, moving a bag that was stored above a passenger's head, that was a violation of the Fourth Amendment. Right. Because whatever the police officer's suspicion of search is cannot extend beyond what that initial indication of a legal activity is. Right.
0:30:19.5 PETER: Pretty simple concept here. It feels like. Right? Like if you're gonna like stop someone, you can only search them for stuff that's related to the stop.
0:30:27.6 RHIANNON: Exactly.
0:30:28.5 PETER: Right. Without sort of needing a reason to do more. Otherwise you could just stop someone for one thing and expand that investigation like ad nauseum. Right?
0:30:39.9 RHIANNON: Exactly. Ginsburg gives lots of examples. She says, "if canine drug sniffs are entirely exempt from Fourth Amendment inspection, a sniff could substitute for an officer's request to a bus passenger for permission to search his bag with this significant difference. The passenger would not have the option to say no". And she talks about like this dignity point, this lack of dignity point, Peter, that you talked about. She says, this opens up every single traffic stop to the possibility that it's okay for a drug detecting dog to come search your car. This happens in public, this is embarrassing to everybody it happens to. Right It just... Like this entire majority opinion, it opens up a crazy bag of worms that they don't contend with at all. Right?
0:31:24.9 PETER: So like Michael mentioned, a lot of the decision is predicated on this precedent from 1983 United States v. Place. That's where they originally held that like drug sniffing dogs aren't really conducting "searches" in the Fourth Amendment sense. And so they are functionally exempt from the Fourth Amendment. That case was about drug sniffing dogs in airports, but the holding applied to drug sniffing dogs generally, so it carries over to traffic stops too. And this is a good lesson about the downstream effects of the court being sloppy and imprecise. Right. Because I think it's pretty inoffensive to say that police dogs should have more leeway in airports, right? There are heightened security risks, tons of people moving through, et cetera, et cetera. I don't know if they should be able to sniff for drugs, but I think most people would say bombs sniffing dogs are fine in airports, right? So the court could have created a tailored rule limited to those circumstances, right? Just been like let's talk about airports, right?
0:32:38.2 MICHAEL: You have a lowered expectation of privacy in airports, The government has higher security interests in airports, et cetera, et cetera, et cetera.
0:32:47.6 PETER: Right? And instead they create this broad rule that has now spilled over into much more questionable circumstances. As an axiom bad cases make bad law. And the idea is that like if you create a rule based on an outlier case, it will not translate well to normal cases to most circumstances. And this is an example of that. You can't make this like broad rule based on a fucking airport case that all of a sudden applies to just some dude who's pulled over for going six over. Like come on.
0:33:22.6 RHIANNON: We've talked about other drug sniffing dog cases, other Fourth Amendment cases that sort of inform either the majority or the dissents here. Another case that's in the background here is Terry v. Ohio. That is the stop and frisk case. That is the case that allows police to stop and frisk people. We did an episode on Terry v. Ohio early on. That might be the fourth or fifth episode we ever did. Real Five Four heads will remember a Danny Stroncatoni impression in.
0:33:51.3 PETER: Impression.
0:33:53.8 RHIANNON: The Terry v. Ohio episode.
0:33:54.7 MICHAEL: That was our first guest [laughter], our very first guest, RIP.
[laughter]
0:34:00.4 RHIANNON: He did pass shortly after that.
0:34:04.7 PETER: Yankee Stadium hotdog lodged in his throat [laughter]
0:34:05.8 RHIANNON: And I think this case is analogous to stop and frisk to Terry v. Ohio in that it allows police to search for evidence of other crimes that they don't have evidence or indication to suspect somebody of through indirect means. Right? Allowing drug sniffing dogs to come to any traffic stop, which is what this case establishes, means that cops are allowed to initiate searches sometimes on false positives, right? To find evidence of other crimes even though they didn't initially have any indication for that. They're broadening the scope of their searches, they broaden the scope of their seizures of your person while they look for other crimes that they never had evidence for to begin with. I think that's really, really analogous to stop and frisk. And there's something that the court does both in Terry v. Ohio, and in this case where they think they're doing this really narrow tailoring. It's the narrow tailoring, Peter, that you said should have happened in this case. They think they're doing narrow tailoring here, but actually they just create avenues for expansive cop action. That's all that they're doing is giving cops more room to search people, more time to hold you, more access to surveillance and getting into your business in a way that should violate the Fourth Amendment right. In a way that the Fourth Amendment sort of clearly stands in opposition of.
0:35:38.9 PETER: Right. And in ways that are likely to lead to discriminatory conduct. Right.
0:35:44.8 RHIANNON: Exactly.
0:35:47.2 MICHAEL: Right.
0:35:48.9 PETER: They're not fucking bringing dogs around in Beverly Hills every time they pull over someone in a Porsche. You know what I mean?
0:35:53.7 RHIANNON: That's right.
0:35:54.6 PETER: This is something that can be used to target and harass communities that cops feel like harassing. So this is something we just talked about in Maryland v. Shatzer where like the court needs to account for the cop being a bad faith actor. Right. Even if you don't think that all cops are bad faith actors, this sure does give a lot of leeway to those who are to just bust out fucking dogs at every traffic stop of someone who they don't like. Right. And put them at risk of serious jail time. The court, of course, does not account for that at all. And even like a few years later, there's another case Rodriguez, where the court basically says, look, you can't hold someone longer than you would've otherwise held them just to do the drug sniffing dog, right? So on a surface level you might think, all right, well that makes sense, right? But what ends up happening, they fucking drag out the paperwork to allow themselves to bring drug sniffing dogs.
0:36:55.2 RHIANNON: Oh, we're doing the warrant search.
0:36:55.3 PETER: It doesn't actually make any fucking difference. It's just a complete refusal to reckon with how cops work in reality.
0:37:04.5 RHIANNON: Yeah you bring up a really good point, Peter, that I was just reminded of in terms of bad faith police officers and specifically drug detection dogs, which is that police officers all of the time with drug detection dogs say that the dog just positively alerted when the dog didn't. Right. And especially at this time, like back in the '90s, there's no like body cam dash cam of every single drug detection search. Right. With a dog. And so you would have no proof of that. You don't have the information to prove that the dog actually didn't positively alert at all until you go to trial and you get an expert in drug sniffing dogs who can say, oh no, based on the video, that actually was not a positive alert and the cop lied. Right?
0:37:52.2 PETER: Right. You gotta bring the fucking dog whisperer in just to try to save your ass.
0:37:57.1 RHIANNON: Totally. I was looking into this and there is a 2011 report published by the Chicago Tribune that found that when looking at three years of data in suburban police departments, only 44% of positive alerts by dogs in traffic stops actually led to discovery of actual drugs. Right. For Hispanic drivers, the success rate was 27% [laughter] That's not the dog. Right The dog doesn't know the race of the driver that is law enforcement input into this process, meaning officers are interpreting or just outright lying that the dog is doing a positive alert. Based on who they're stopping, where they are, what neighborhood. Right. All of the biases that go into the human behavior and the bad faith behavior of cops that we all know about already. But there's also something we haven't mentioned that also relates to these cop inputs, to the dog's analysis, if you can call it that.
0:39:02.5 RHIANNON: Meaning like things like body language, enthusiasm from the human handler. That gets communicated to the dog even involuntarily, right? Like the cop's expectation that drugs will be found or the vibe of enthusiasm that the cop is giving off because they've pulled over a person of color because they've pulled over somebody in a "high crime neighborhood" that then in turn influences the dog to think like human wants me to do positive alert here. Right. And so the court not contending with any of this, not contending with false positives, not contending with... Not dealing with the fact, not just the idea, but the fact of bad faith actors in law enforcement of bias in law enforcement behavior. It's such a disservice. It's a really, really sad disservice.
0:39:57.6 PETER: These cops are saying so many racist slurs around these dogs that the dogs themselves are now [laughter] racist. [laughter]
0:40:11.5 MICHAEL: The number of legal fictions this is sort of built on is pretty startling. From the drug sniffing dogs make no errors to cops won't drag out stops to cops will never lie about dogs alerting to nobody who has any reasonable expectations of privacy will have that privacy infringed like just assumption after assumption after assumption. That's just demonstrably false, just wrong. You're just like what fucking planet are you on?
0:40:45.5 PETER: Right. The last thing I wanna mention here, this is something that really bothered me in law school, but I wanna talk about how weird some of the law about police searches has gotten. Like back in the day it used to be that the Fourth Amendment only applied to physical invasions of your person or property, right? And then there's this case in the late '60s called Katz v. United States about a wiretap, right? And everyone sort of recognized, oh, technology has changed what we should consider a search, right? And so the court was like alright, it shouldn't just be physical invasions of your space. It should also be about situations where you have an expectation of privacy, right? And that's how we get the rule that the court is using here. And I think in general, this idea was a good one, right? That's a reasonable way to think about it.
0:41:33.7 MICHAEL: Katz was, I think, considered something expansive in privacy enhancing, right?
0:41:35.5 PETER: Absolutely. Absolutely.
0:41:40.3 MICHAEL: Like before that it's like is there a trespass? Did the cops trespass to your person or your home? Otherwise there's no search. And now they're saying, well, they can still search you even if there's no trespass. Right? And that's supposed to be privacy enhancing.
0:41:55.6 PETER: Right. But then like lawyer brain thing happens where the rule they created starts to dominate the way that we think about these situations to the point where you like lose sight of common sense and what we were trying to accomplish to begin with. So you get a situation like this where the court is saying that this isn't a search because there's no expectation of privacy. And it's like well, hold on. I mean, they're searching for something, aren't they? Like.
0:42:17.9 MICHAEL: [laughter], very much so [laughter]
0:42:20.4 PETER: Have we really created a rule so convoluted that words have lost their meaning, Like if the cops want to argue that these search is reasonable, that it is justified, that can go right ahead, but it is literally a search they are searching By every fucking definition of the word you could possibly conceive of. How did we let this get so out of hand? How did we let this idea subsume our basic understanding of what a search is to the point where no one even fucking talks about it anymore. None of the dissenters are like by the way, this is a search. Right They're literally searching. It's just a great example of how like this sort of legalese ends up eating away at the fabric of what was once a human brain. And all you're left with is this fucking bullshit.
0:43:06.0 MICHAEL: We've talked about this too, where you do and don't have a reasonable expectation of privacy. And it's like when you're in law school, you're just like learning this stuff, but like once you get disconnected from it and start thinking about it like a human being again, it's like wait a minute. Right? I gave some papers to my banker and I no longer have a reasonable expectation of privacy in them. I think most people would say they do, I don't expect my banker to go fucking showing my shit around, right?
0:43:33.3 RHIANNON: Or take Katz like on the phone. I just expect that it's me and my friend on the phone.
0:43:39.5 MICHAEL: Right. And Katz is so funny because it's like it's in this phone booth and they're saying, well, there are all these like signifiers of like privacy. Like he closes the door and like maybe if he had left the door open, it would be different because a cop could just stand next. But it's like what are you talking about [laughter]? Like Why would that be dispositive? Like why?
0:43:56.6 PETER: We've lost the plot when it comes to this search shit.
0:44:00.0 RHIANNON: A 100%.
0:44:00.1 PETER: The idea that this is somehow not a search, it doesn't make any sense. Like you should be able to step back from that and be like whoa, hold on. We've reached a point where this no longer makes any fucking sense at all. Let's rethink how we're approaching that. That's what should be happening. When you get someone being like oh, a dog searching your shit isn't technically a search, Someone should be like oh wait, we fucked up. Somewhere along the way, it's time to go back and figure out where, All right, well [laughter],
0:44:31.0 RHIANNON: So Just so you know when you're pulled over and they bring a drug sniffing dog. Unless it just like takes a really long time. That's okay.
0:44:40.3 PETER: I feel like everyone already knows this rule because of 99 problems. [laughter] Right? We'll see how smart you are when the canine comes. Right Everyone remembers that line and I remember hearing that line and being like damn, they can just bring a dog [laughter] yes they can. Yes they can [laughter] What's great is the song dropped before the case. So Jay-Z was actually ahead of the curve on this. [laughter] Jay-Z was like I know where they're gonna land on this. Trust me. If I know John Paul Stevens.
[laughter]
0:45:19.9 PETER: Next week, Jones v. United States case from the '80s about the insanity defense. What happens when you successfully claim insanity in a criminal case? Do you get off the hook?
0:45:35.0 RHIANNON: Yeah. You're found not guilty.
0:45:38.6 PETER: Or do you just get involuntarily committed for the rest of your life? The answer may or may not surprise you depending on how much of this podcast you Listen to. [laughter]
[laughter]
0:45:51.7 PETER: Follow us on social media at @fivefourpod, subscribe to our patreon patreon.com/fivefourpod all spelled out for access to premium episodes, special events, our Slack, all sorts of shit. We'll see you next week.
0:46:07.5 MICHAEL: Bye everybody.
0:46:08.7 RHIANNON: Bye.
0:46:08.8 LEON: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.
0:46:36.5 PETER: One cop for no specific reason, brought a Dog's... One cop for no specific reason, brought a Dog's... Why do I keep saying Dog's.
[laughter]