We interrupt your ongoing abuse of presidential power for drug-sniffing dogs

I’ve been meaning to write a post on this since, oh, well, the article is dated February of this year, and haven’t.  But I just got an email yesterday from a student who wrote a great paper for me years ago on just what a bad job drug-sniffing dogs do, but, alas, our criminal justice system pretends like they are highly accurate.  Radley Balko, of course, is all over this:

Last week, I wrote a post looking at how the criminal justice system operates in an alternate reality, one in which truth isn’t dictated by facts or data, but by precedent and case law. Today, I want to look at a case pending before the Supreme Court that is a great example of the problem. [emphases mine]

At issue in Edstrom v. Minnesota is whether a drug dog’s sniff outside an apartment door constitutes a lawful search under the Fourth Amendment. If it does not, the police would be required to obtain a warrant before using a narcotics-detecting dog in that manner. If it does, then the police could take their dogs up and down apartment complexes the way they sometimes do with school lockers. Over at the legal analysis site Verdict, Cornell University professor Sherry Colb runs through what’s at stake, and offers some informed speculation on what the court may do.

For the purpose of this post, though, I want to focus on what’s missing from Colb’s analysis and, should the Supreme Court decide to hear the case, will almost certainly also be missing from oral arguments, the court’s ruling and most discussion of the case: that narcotics-detecting dogs and their handlers aren’t very good at discerning the presence of illegal drugs. Multiple analyses of drug-dog alerts have consistently shown alarmingly high error rates — with some close to and exceeding 50 percent. In effect, some of these K-9 units are worse than a coin flip…

While dogs are indeed capable of sniffing out illicit drugs, we’ve bred into them another overriding trait: the desire to please. Even drug dogs with conscientious handlers will read their handlers’ unintentional body language and alert accordingly. A 2010 study found that packages designed to trick handlers into thinking there were drugs inside them were much more likely to trigger false alerts than packages designed to trick the dogs. (Police-dog handlers and trainers responded to that study by refusing to cooperate with further research.) Many drug dogs, then, are not alerting to the presence of drugs, but to their handlers’ suspicions about the presence of drugs. And searches based on little more than law enforcement’s suspicions are exactly what the Fourth Amendment is supposed to prevent…

If the Fourth Amendment rights of drug suspects hinge on drug dogs, one would think the accuracy of those dogs would be something the Supreme Court might want to investigate. You’d be wrong

The Harris ruling made these dogs’ real-world accuracy irrelevant. In the alternate reality of the criminal justice system, from 2013 on, any police dog that is “certified” is accurate and reliable — because the Supreme Court says they are.

Two years later, a ruling from the U.S. Court of Appeals for the 7th Circuit stretched the dimensions of this new reality. In United States v. Bentley, the defendant was searched after an alert by a drug dog that had alerted 93 out of every 100 times it sniffed. Why did it alert so often? Perhaps because the drug dog’s handler admitted that he rewarded the dog with a treat only when it alerted. The dog was confirming its owner’s hunches, and getting a treat each time it did. It also had a false positive error rate of 41 percent — 4 out of every 10 drivers searched because of a dog’s alert turned out to be innocent…

And, yet, in our criminal justice system, those searches would not violate the Fourth Amendment rights of the people inside. Because in this reality, the Supreme Court determines what is and isn’t true. And the Supreme Court has said that so long as they’re certified, drug dogs only alert when someone is guilty.

It really is astounding how little science and fact count for in our criminal justice system when weighed against past precedent and a bias towards finality.  And this comes from the very highest levels that the Supreme Court honestly just doesn’t care that drug-sniffing dogs are a horribly blunt and failure-prone instrument.  It’s like if we somehow let police regularly pull over people for speeding with radar guns that had a +/- 20mph error rate and just didn’t care.  But hey, drugs are bad!  Ugh.

About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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