All posts in Search And Seizure

I was told that I didn’t adequately explain myself yesterday when talking about canine searches.  So the dogs aren’t always right?  Maybe they’re right 10% of the time.  That’s 10% of the time that they could smell drugs or bombs when the humans couldn’t right?  Let the hounds work!

It’s not that simple.

You’ve got a fourth amendment right against unreasonable searches and seizures.  That means that a cop can’t search your car just because he wants to, with no real basis whatsoever.  A cop can search your car if a canine “indicates” there is contraband, however.  In that case the officer doesn’t need a warrant, and the warrantless search is considered “reasonable.”

What happens when the dog “indicates” where it thinks the human thinks drugs are located more often than where it objectively smells contraband?  Well, in that case, it’s not really “indicating” there’s contraband- it’s just telling the human handler that it thinks the human handler should search where the human handler already wanted to search (but legally couldn’t unless the dog “indicates.”)

That’s just a long way of saying that the dog might just be a tool to legitimize an officer’s search of someplace he wants to search, but still may not have probable cause to do so.  Seems to me there’s still a fourth amendment problem.

A couple weeks back there was an awesome article floating around about a girl who won a science fair by doing a project on drug sniffing dogs.  It wasn’t awesome because she won.  Nor was it awesome because she got to use the cool dogs.  It was awesome because her daddy, a cop, helped her by using real cocaine.

I think it’s awesome that he can put over $1,000 worth of cocaine to work for a school project, don’t you? I mean, he has a badge and a gun, he can do whatever he wants.  Isn’t that the way it should be?  Just check an ounce of coke out of the evidence locker, and off to conduct grade school science projects we go.  I don’t see how playing fast-and-loose with the evidence locker could hurt, do you?  Gotta help daughter win this science project, after all.

If a loving father can’t take illegal narcotics to the school, well, then, how is he supposed to show his love, dammit.

But, I’ve got to call shenanigans on this whole project- she had an unfair advantage.  I’m not talking about her being able to use the extremely expensive police dog, or illicit narcotics that other 4th graders didn’t have access to.  I’m talking about the judges of this deal- I’m betting they don’t have any clue what they were doing.

See, I’m guessing those judges are just regular people.  People like you. People like me.  Regular people tend to operate under the assumption that drug sniffing dogs are awesome, because they are awesomely accurate.

I thought that for a long time.  Then a couple things happened.  First, I got this job and had to start taking a critical look at canine searches.  Then, I brought home “Bacon” who is the world’s greatest Vizsla.

Puppy ownership is a bit of an eye opener.  Bacon is bred to hunt and has an awesome nose- she’s only six months old and she can find a bird-scented toy buried in a pile of laundry two rooms away.  It’s impressive to watch.  On the other hand, she also loves to roll in poop and drink from the toilet.  Not so impressive.

You know what she really loves to do?  She loves to do whatever it is that she thinks I want her to do (if she thinks I have treats, anyway).  She’d run through a wall if she thought I’d give her a treat afterwards.

I’ve noticed that, sometimes, when I hide her bird scented toy she’s paying as much attention to me as she is trying to “find the birdie.”  She knows I know where it is.  She also knows that I might give her a clue- by where I’m standing or where I’m looking.  I can take a step or look a certain direction to help her if she gets frustrated. Of course, I can also send her in the wrong direction with that step or look if I’m trying to be mean.  She goes where she thinks I want her to go.

Thankfully drug dogs are different, right?  They are highly trained animals with keen senses and accurate noses.  They don’t roll in poop or drink out of toilets. They look for stuff on their own, and don’t take inaccurate cues from their handlers.  They go where the drugs are, not where they think their handlers think drugs might be.  They never indicate on stuff without being right.

I guess the one exception might be the bomb sniffing dogs that the Law Dude posted to facebook:

But those have to be the only exceptions.  Clearly. I mean if they weren’t, this border patrol agent couldn’t possibly testify under oath that the dog is never really wrong:

“There is no such thing as a false alert.”

Wait, wait, wait.  What about that study that found that the dogs can be wrong up to 80% of the time?  Thankfully those people are from Australia.  Since their toilets flush backwards, their dogs are probably backwards too.  So, if their dogs are wrong 4 out of 5 times, that means ours are correct at least 4 out of 5, right?  Those people probably don’t even let their 10 year old daughters use cocaine in science projects.  Of course their dogs are wrong.

But, our dogs are always right.  That’s what I used to think. That’s what the border patrol agent testified to. More importantly, I’m guessing that’s what the judges at the science fair for the 10 year old girl thought.  Of course you’re going to win when everybody just assumes the accuracy of your project.

Maybe I shouldn’t really care.  Maybe it’s not a big deal if the cops want to pull you over for speeding but make you wait for a half hour while they run the dog around your car.  I’m sure all your neighbors driving by and seeing you out there are thinking, “It’s ok, the dog might be wrong” and not, “Wow, I didn’t know she was a drug dealer!”

The Supreme Court is about to decide two big cases regarding searches with dogs. Their past dog search decisions haven’t exactly embraced the idea that these dogs may “false indicate” based on a handler’s cue, and that innocent people end up being embarrassed when the police search their car for no reason.    Given that the fourth amendment prohibits “unreasonable searches” it’s hard to believe our founders intended to give the cops the right to toss through the underwear in your luggage because some toilet-drinking hound started scratching at your car.

I’m not saying that dogs, when properly trained and handled, aren’t incredibly accurate or useful tools.  Anybody who has ever watched a good gun dog in the field knows this.  What I am saying is that there’s a history in this country (and Australia) of  canines not being used correctly when it comes to searches and seizures.

Bacon the Vizsla likes to chase after a squeaky piggy toy, eat paper towels, roll around in smelly stuff, and do whatever she can to get treats.  So do those trained dogs.  Perhaps your Supreme Court shouldn’t assume they’re any more accurate than anything else that rolls in poop.

Matt Haiduk is a Criminal Defense Lawyer and a dog dad with offices in Kane County and McHenry County, Illinois.  Feel free to add him on Google+.

I’m not guilty. I have nothing to hide. I’m going to talk to the police because I don’t want to look guilty.

I hear that all the time.  It drives me nuts.  I get why people are worried.  To the uninitiated, the logic makes sense.  Innocent people have nothing to hide, right. I mean, why wouldn’t Mother Teresa head on down to the station and clear up the confusion?

You know who looks most guilty? People who aren’t guilty, but whom the police say admit to crimes. In fact, they look so guilty that they’re almost always convicted.  The reality is that by the time the cops want you to come down to the station you already look guilty to somebody.  And, why are you worried about whether or not you look guilty to the cops, anyway?  They don’t determine your guilt.  A judge or jury do- and they can’t use your silence against you.

You already know I think that innocent people have more incentive to mind their own business and assert their constitutional rights.  You still think I’m nuts, though.  So, lets put all of that aside.  The cops want you to come on down to the station to “talk”.  And, well, you’ve got nothing to hide so why not?  You’ll head on down there, tell them that you’re not guilty, and be back to watch Nancy Grace before taking a nap and washing the cat.  Simple plan.

Everybody has a plan.  You’re going to say what you’ve got to say, and if they don’t like it you’ll show them.  Just like Fenster in Usual Suspects:

Unfortunately, you aren’t Fenster.  He’s been interrogated a million times before, so he knows what he’s doing.  The real-life police don’t act like that, anyway.  The real police?  They have a plan, too.  Their plan is called the Reid Technique of interrogation.  It’s more than a plan, really. It’s a system.  The Reid Technique has 9 simple steps to psychologically beat you down and make you tell the “truth.”  Or, in some cases, to make you tell the cops what they already have decided is the truth.

So, the cops want you or Mother Teresa, or Rowdy Roddy Piper or whoever to come into the station to “talk” about the disappearance of Jimmy Hoffa.  When you get there, they “regret to inform you” that they’ve got a lot of evidence that you killed Hoffa. (Step 1: present real or fake evidence.).  Maybe they’re lying about that.  On the other hand, maybe they’re not.  Eyewitness mis-identifications happen all the time.  Somebody may have actually picked you out of a lineup.

To make it fun, lets pretend the cops actually have no evidence on you.  Is isn’t unusual.  As you’ve read here before, the Reid Techinque is founded on the idea that interrogations should happen when the cops think you’re guilty but don’t really have the evidence to prove it.

It’s ok, though.  The cops are giving you an out.  Hoffa was a violent man, they tell you.  He probably came at you first. You probably acted in self defense.  They tell you that they would have, too!  Is it possible that could have happened when you and Hoffa were drinking and you were so blacked-out drunk that you don’t remember it? (Step 2: Interrogator creates a story as to why/how suspect might have commit crime.)  Anything is possible, right?  You don’t remember everything that ever happened to you. It could have happened.

Hell no, that’s not possible.  You weren’t even born when Hoffa disappeared, right?  Every time you tell them that, though, they cut you off before you get a word out of your mouth.  Every time you get half way into it, they stop you and remind you that “anything is possible.”  (Step 3: never let the suspect deny it.)

Wait a minute.  You went down to the cop-shop to tell them that you’re not guilty, and they won’t even let those words out of your mouth? You can’t even tell them what you went there to tell them?  What kind of deal is this?

Why are you there, again?  Because your ego wouldn’t let you remain silent, that’s why.  How does your ego feel now that they’ve told you they have the evidence to prove it, they’ve explained a way in which it could have theoretically gone down, and they won’t let you deny anything.  How are you feeling about your decision now?

You don’t even need to get into the final 6 steps of Reid’s mental submission machinery.  You only need to know that you’re not going to be in control, and that things still aren’t going to go down like you think they are.  I’m not necessarily saying you’re going to admit to anything you didn’t do.  Although, I’m not saying you won’t, either.  Other people certainly have.  And, even when they didn’t, who knows how the police might interpret what you said (after all, they thought you were guilty before this thing even started).

I know what you’re thinking.  You think I’m nuts.  I mean, yes there’s a chance that the cops think you did something you didn’t do. Maybe there’s a very outside chance you were wrongly identified or somebody mistakenly said you did something.  But the chances are so slim that they’re not worth worrying about, right?

This isn’t the lottery.  This is your life. If there is ever any chance you might spend the rest of your life caged up like a hamster, and you had any control over whether or not that happened, why wouldn’t you use that control to make the best decision for you?  The wise men who wrote the constitution understood this.  They gave you the absolute right to control whether or not you talk.  So, are you going to make those wise men happy by using their “gift of silence” or are you going to disappoint Elbridge Gerry?

Elbridge didn’t care if it was Mother Teresa, O.J. Simpson, or anybody else.  Elbridge wasn’t going to sign that Constitution without the Bill of Rights.  Elbridge knew what was up.

It’s your life. You do what you want.  You take the chances you want, and you get to live with them.  Me?  I’m not talking.  Especially when I’m innocent.

Matt Haiduk is an uncooperative Criminal Defense Lawyer with offices in Kane County and McHenry County, Illinois.  Feel free to add him on Google+.