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Drug Dogs and School Parking Lots

Campus police at the Fort Wayne (TX) Independent School District are miffed that school administrators would not let them search a teacher's SUV after a high school parking attendant claimed to smell "the odor of marijuana" coming from the SUV, and after the police, responding to that information, had two drug dogs sniff around the SUV, resulting in "alerts" from both dogs. The police claim this gave them probable cause to search the SUV, but school district administrators ordered them not to search it because "there was no evidence of workplace misconduct."

The police have a point. They apparently search students' cars routinely when drug dogs alert, even in the absence of "school misconduct" by the students. Why should a different policy apply to teachers?

Unsurprisingly, however, the larger question has eluded the police, the school district administration, and the reporter who covered this story. [more ...]

The linked story does not say whether the parking attendant smelled the odor of burning or of unburned marijuana. The odor of burning marijuana might suggest that the teacher was coming to work stoned, which one might think was "evidence of workplace misconduct." It seems more likely that the odor was of unburned marijuana, a smell that isn't particularly easy to identify when it comes from inside a vehicle. Was the parking attendant someone who had a grudge against the SUV's driver? Maybe the teacher gave him poor grades in high school (and maybe that's why he's now employed as a parking attendant). Speculation aside, the dubious claims of a parking attendant to be able to discern the odor of unburned marijuana doesn't make it probable that the vehicle actually contained marijuana.

The story does not say that the police were able to smell anything; hence their reliance on drug dogs. And there's the real story. The drug dogs "alerted," but why? Because they smelled marijuana, or because they were reacting to nonverbal cues from their handlers? Dogs can't testify, and while K-9 handlers will swear that their dogs have a miraculous ability to detect whatever odor they've been trained to detect, when you watch the dogs on film it's often obvious that the dogs only react because their handlers point, or pat the car, or bring them back to the same spot over and over. Does a dog that "alerts" actually smell something, or is the dog doing what it thinks its handler expects it to do?

The telling fact in the story is this:

A Sugar Land Police Department spokesman said their Special Crimes Unit conducted a drug search of a vehicle at the request of a Fort Bend ISD police officer, apparently of the same SUV parked at Kempner. Nothing was found and no arrest was made.

Oops. No drugs in the SUV. Bad dogs!

As they always do, the police explained this result by pointing out that the teacher "easily had time to dispose of [the marijuana] from the time the campus K-9 search was called off and the time Sugar Land officers stopped the vehicle." Maybe, but the teacher was presumably unaware of the campus K-9 search and therefore had no incentive to "dispose of" the drugs. An equally credible explanation is that there were never any drugs in the SUV to begin with.

This highlights another problem with dog sniff searches. When a search following an "alert" turns up nothing, the police confidently proclaim that there must have been drugs in the car at one time, and that's what the dogs are smelling. But if sniffing dogs can't tell the difference between the odor of drugs presently in a vehicle and the odor of drugs that were once in a vehicle, how does an "alert" make it probable that drugs are presently in the vehicle?

The big story here is the fallibility of drug dogs and the time the police waste conducting drug dog "sniff searches" of vehicles parked in school parking lots. The police should spend their time (and our tax money) investigating real crimes, not ambiguous odors.

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    Or, GET RID OF DRUG LAWS (5.00 / 1) (#2)
    by bocajeff on Thu Jan 22, 2009 at 03:06:19 PM EST


    Um, (none / 0) (#12)
    by MyLeftMind on Fri Jan 23, 2009 at 10:49:26 AM EST
    No thanks.

    Parent
    The more time I spend with my dog (5.00 / 1) (#3)
    by scribe on Thu Jan 22, 2009 at 03:22:18 PM EST
    the less I trust the results of police drug dogs.

    The simple reason is that a dog will pick up subtle cues of body langauge that humans (having verbal language) either do not notice, or have no way of consciously knowing about.  Dogs live in a world of non-verbal cues which they have to interpret correctly to both avoid trouble (with other dogs, especially) and to get food and shelter.

    The first thing about dogs that has to be remembered is that they live in a hierarchical society.  They have to.  A lone dog, left alone, will soon go crazy.  And they have to be in a hierarchy and know their place in it.  

    Humans, particularly dog handlers, can only "control" their dogs by placing themselves in the dominant position in that hierarchy.  A dog which understands a human to be in a submissive/subordinate position will take the dominant position and "walk all over" that person.  Obviously, a dog handler is not much good if he/she cannot control their dog, and that means they have to be in the dominant position.

    A dog, when in a subordinate position, will do everything in its power to please the dog (or person) in the dominant position.  To accomplish this, the dog will learn the subtle cues of physical language - motion, posture, etc. - which indicate whether the dominant is pleased or not.  

    So, these drug dogs will do what pleases their master.  They will knock themselves out to do it.

    A good, scholarly yet readable book:  How to Speak Dog.  Works wonders on people and training them to handle their dogs.  It did for me.

    This gave me a feeling of anxiety (none / 0) (#7)
    by sj on Thu Jan 22, 2009 at 04:31:39 PM EST
    The first thing about dogs that has to be remembered is that they live in a hierarchical society.  They have to.  A lone dog, left alone, will soon go crazy.

    Both of my dogs are rescues -- not from shelters.  One was found abandoned at a truck stop and the other was plucked from the streets of Baltimore.  I hate to think of the fear and anxiety they each had during those weeks alone.

    Having said that, I agree with you about the possibility for "false positives" with police drug dogs.

    Parent

    Pranking drug dogs since the 90s (5.00 / 2) (#9)
    by Kalista on Thu Jan 22, 2009 at 05:44:01 PM EST
    Some kids I knew in high school (1994) brought a spray bottle full of bong water to school and sprayed it on a despised teacher's car so that the drug dogs would alert when they patrolled the parking lot.

    Question (none / 0) (#1)
    by jbindc on Thu Jan 22, 2009 at 02:54:43 PM EST
    If we assume, that the parking attendant was correct and the teacher was smoking on the way to school, wouldn't it be possible that the teacher disposed of the joint on his/her way in - not necessarily thinking that the car would be searched, but just to get rid of it?  Wouldn't that explain how the odor would linger, but no drugs would be found?

    Sure. (5.00 / 1) (#4)
    by TChris on Thu Jan 22, 2009 at 03:26:22 PM EST
    And that's another reason that the mere odor of marijuana shouldn't constitute probable cause to believe there is marijuana presently in the vehicle (a fairly obvious conclusion with which, unfortunately, courts routinely disagree).  Another reason to blame the drug war for the loss of your Fourth Amendment protections.

    Parent
    Well.. (none / 0) (#5)
    by jbindc on Thu Jan 22, 2009 at 03:41:15 PM EST
    How close is your reading of this case with relation to Cabelles, where Stevens said this,in relation to an exterior dog sniff search at a traffic stop, where they didn't suspect drugs?

    Official conduct that does not "compromise any legitimate interest in privacy" is not a search subject to the Fourth Amendment. Jacobsen, 466 U.S., at 123. We have held that any interest in possessing contraband cannot be deemed "legitimate," and thus, governmental conduct that only reveals the possession of contraband "compromises no legitimate privacy interest." Ibid. This is because the expectation "that certain facts will not come to the attention of the authorities" is not the same as an interest in "privacy that society is prepared to consider reasonable." Id., at 122 (punctuation omitted). In United States v. Place, 462 U.S. 696 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as "sui generis" because it "discloses only the presence or absence of narcotics, a contraband item." Id., at 707; see also Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). Respondent likewise concedes that "drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband." Brief for Respondent 17. 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. Moreover, respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk.

        Accordingly, the use of a well-trained narcotics-detection dog-one that "does not expose noncontraband items that otherwise would remain hidden from public view," Place, 462 U.S., at 707-during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.

        This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U.S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity-in that case, intimate details in a home, such as "at what hour each night the lady of the house takes her daily sauna and bath." Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.



    The dog sniff (none / 0) (#6)
    by TChris on Thu Jan 22, 2009 at 03:58:33 PM EST
    itself violates no rights provided the driver isn't detained to await the arrival of the dog. The intrusion into the vehicle clearly implicates privacy rights. The problem with Stevens' analysis is that it's based on a bad record that allowed him to assume "a well-trained narcotics-detection dog" could discern and reliably alert upon the presence of drugs. Had the record contained the testimony of dog handlers who don't work for the police, his conclusion might have been different.

    Parent
    I'm not sure I get this. (none / 0) (#8)
    by sarcastic unnamed one on Thu Jan 22, 2009 at 04:50:02 PM EST
    Are we suggesting the dogs respond to the thoughts of their handlers?

    Aren't the handler's thoughts always essentially the same, always "wanting" the dogs to alert?

    Since the handlers don't know which, if any, car they approach with the dogs have drugs, their thoughts, body language, etc., are the same for all the cars - ie. they're wanting/hoping the dog alerts?

    iow, how/why were the dog handler's thoughts/body-language/whatever different when the dog's handlers approached this particular teacher's car compared to the dozens/hundreds of other cars the handlers are directed to approach that the dogs didn't alert to?

    Or are you saying the dogs always alert?

    Drug dogs (none / 0) (#10)
    by TChris on Thu Jan 22, 2009 at 08:27:58 PM EST
    are frequently used to reinforce a handler's pre-existing suspicion that a particular car or storage locker or whatever will contain drugs. In this case, for instance, the handler already knew that the attendant claimed to smell marijuana in the car to which the dog alerted.

    I agree that the problem is less serious when the handler has no pre-existing suspicion.  That's why strong drug dog protocols (which the police rarely adopt) require that the handler be given no advance information and that the dog must search several vehicles or packages or whatever, not just the one.

    Parent

    Love That Story (none / 0) (#14)
    by squeaky on Fri Jan 23, 2009 at 01:43:06 PM EST
    ALthough it does not follow that the story proves animals do not think. Parrots can do math.

    Parent
    Yes (none / 0) (#20)
    by squeaky on Fri Jan 23, 2009 at 10:18:45 PM EST
    And it also does not rule out that a horses are able do simple mathematics.

    Parent
    But...do the dogs alert EVERY TIME (none / 0) (#15)
    by sarcastic unnamed one on Fri Jan 23, 2009 at 01:56:15 PM EST
    the handler has been given a pre-existing suspicion?

    If they don't, then the "handler's pre-existing suspicion = dog alert" argument is going to be difficult to make...

    Parent

    Probably Not (none / 0) (#17)
    by squeaky on Fri Jan 23, 2009 at 02:12:41 PM EST
    But it is clear that the dogs can be manipulated and are often wrong.

    Parent
    One wonders how they find time to educate... (none / 0) (#11)
    by kdog on Fri Jan 23, 2009 at 09:42:34 AM EST
    out in Fort Wayne...what with all this worry about a teacher maybe being a burner.  It would be comical if issues of liberty weren't at stake.

    Speaking of burners... (none / 0) (#16)
    by MileHi Hawkeye on Fri Jan 23, 2009 at 02:03:09 PM EST
    If we would have had narco-canines patrolling the parking lots at my high school, they would have died from over-stimulation within a few short hours.  

    Simplier time, I guess.

    Parent

    So... (none / 0) (#19)
    by MileHi Hawkeye on Fri Jan 23, 2009 at 09:30:24 PM EST
    ...I go to the DM Register and see this

    A trooper with the Iowa State Patrol pulled over 38-year-old Michael Spahlinger of Cleveland Heights, Ohio, on Thursday to perform a routine search. The trooper eventually called in a K-9 unit.

    According to authorities, Spahlinger was driving a GMC pickup pulling a horse trailer on Interstate Highway 80 eastbound near Council Bluffs.

    The K-9 unit helped uncover marijuana in a natural void in the front of the horse that was covered with hay bales and horse manure.

    We have "routine" searches in this country?  I could understand them doing a safety check, but what the heck is a routine search?