Armed Polite Society
Main Forums => Politics => Topic started by: Hawkmoon on July 16, 2017, 09:33:15 PM
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http://www.gjsentinel.com/news/articles/court-scent-not-enough-for-car-searc/
Precedent only in Colorado, but should work in any state that has approved the medical use of marijuana. Cop pulled over a suspect, called in a drug dog, dog alerted on car, cops searched car and found paraphernalia. Driver was convicted.
Apeal court said, "Not so fast. Marijuana is now legal, so the dog might have been alerting to something that wasn't contraband. No grounds for a search. Go back and try again."
I approve. I like it when judges follow the law -- unfortunately, it doesn't happen often enough.
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That is a very interesting legal side effect of pot legalization I hadn't thought of. Drug dogs were trained for multiple substances including pot. Those dogs are out of business. Wonder if they will stop training dogs for pot, even for states where pot is still illegal, or if they will start two types of training...
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So, if I'm getting this -- and I might not be -- (I'm never sure these days) a guy is driving along with an illegal drug that IS NOT MARIJUANA in Colorado, is stopped by a policeman, who brings ina dog trained to sniff drugs, dog alerts, cop finds a drug that IS NOT MARIJUANA, and is still illegal, so he arrests the druggie, but the judge says it's no good 'cause the dog "might have" alerted to any drug, even marijuana, but since the MJ is legal, the druggie gets a GETOUTOFJAILFREE card.
Even though the FACT of the matter is the guy had ILLEGAL drugs? ??? ??? ??? ???
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I'm not sure how much it matters.
They've found that a lot of drug dogs have ended up being 'retrained' to alert on signals from their handler indicating that the handler wants them to alert on that particular vehicle.
It's the whole 'rewarded when they alert' thing, they don't get rewarded for NOT alerting.
I wouldn't be surprised if most of the dogs could be retrained in about 6 weeks, simply by something like:
First 2 weeks: no MJ at all. All the usual other stuff.
Next 2 weeks: reintroduce MJ, but don't reward when the dog alerts on it.
Last 2 weeks: Mix of smells. reward for everything BUT mj.
Even though the FACT of the matter is the guy had ILLEGAL drugs? ??? ??? ??? ???
The linked article didn't say that any drugs were found. All they found was 'paraphernalia'. In this case, a suspected meth pipe. If it was 10-20 years ago, it would have been a crack pipe. Since the dude had a history, he was convicted for having the pipe. Given that he was also convicted for possession of a controlled substance, they might of found a small amount of meth in the pipe via chemical testing. Or maybe a search of his home linked to the finding of the pipe turned something up.
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That is a very interesting legal side effect of pot legalization I hadn't thought of. Drug dogs were trained for multiple substances including pot. Those dogs are out of business. Wonder if they will stop training dogs for pot, even for states where pot is still illegal, or if they will start two types of training...
I would think they'd train new dogs not to alert to pot, send/sell the older dogs to states where it's still illegal and, as the various states legalize, the older dogs could phase out gradually.
but that probably makes too much sense...
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Even though the FACT of the matter is the guy had ILLEGAL drugs?
The linked article didn't say that any drugs were found. All they found was 'paraphernalia'. In this case, a suspected meth pipe. If it was 10-20 years ago, it would have been a crack pipe. Since the dude had a history, he was convicted for having the pipe. Given that he was also convicted for possession of a controlled substance, they might of found a small amount of meth in the pipe via chemical testing. Or maybe a search of his home linked to the finding of the pipe turned something up.
Yea I sorta figured something was sideways....but with the quality of reporting these days one never knows.
Given he had a history I should think the pipe would be enough but then I also thought Hillary and OJ Simpson were guilty as sin..................... =|
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So, if I'm getting this -- and I might not be -- (I'm never sure these days) a guy is driving along with an illegal drug that IS NOT MARIJUANA in Colorado, is stopped by a policeman, who brings ina dog trained to sniff drugs, dog alerts, cop finds a drug that IS NOT MARIJUANA, and is still illegal, so he arrests the druggie, but the judge says it's no good 'cause the dog "might have" alerted to any drug, even marijuana, but since the MJ is legal, the druggie gets a GETOUTOFJAILFREE card.
Even though the FACT of the matter is the guy had ILLEGAL drugs? ??? ??? ??? ???
Correct. Because the dog can't exactly say in bark-speak, "Hey, Boss, I smell cocaine, not marijuana. Book 'em, Danno."
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The linked article didn't say that any drugs were found. All they found was 'paraphernalia'. In this case, a suspected meth pipe. If it was 10-20 years ago, it would have been a crack pipe. Since the dude had a history, he was convicted for having the pipe. Given that he was also convicted for possession of a controlled substance, they might of found a small amount of meth in the pipe via chemical testing. Or maybe a search of his home linked to the finding of the pipe turned something up.
Doesn't matter what he had. Anything found in the search is now "fruits of a poisoned tree" and cannot be used as evidence against him, because the search was illegal. He could have had Jimmy Hoffa's body in the trunk of his car and they would now NOT be allowed to mention it in court. Whatever they found in the search now does not exist, because the search was illegal.
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It's the whole 'rewarded when they alert' thing, they don't get rewarded for NOT alerting.
Nope, that is not how it works. On the road, the dogs are rewarded whenever they work. Alert or not. The reward is for looking.
In training, if they alert on a blank car they do not get a reward and are instead corrected. Dogs do tend to go through a phase early in training where they start to alert on every car (often in the same spot each time) as a way to get the reward more quickly, but that is not desirable activity.
Handlers have to write up records of every search their dogs do on the road as well as the results of that search. If the search is negative they ask the driver if there is any reason the dog alerted and in many cases the driver will admit to having had drugs, paraphernalia, or a passenger who likely had smoked recently in their vehicle. If the handler doesn't find a reason the dog hit then they may need to work on more blank cars. Training records and live performance records can be requested by defense attorneys.
As far as juggling dogs around between states, that would tick off a lot of handlers. They build a serious bond with their dogs. I am sure dogs could be trained out of alerting on pot and that program would almost certainly be less expensive than conducting massive dog swaps - which would all require retraining for the dog/handler teams anyway.
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I don't trust drug dogs... I suspect they learn to give false alerts to please their handler.
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I don't trust drug dogs... I suspect they learn to give false alerts to please their handler.
This has been reported (and sometimes documented) far too many times for it not to be true. Sorry, Cordex, I know what you posted is the way it's supposed to be, but I don't believe it works that way in the real world.
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. . . If the search is negative they ask the driver if there is any reason the dog alerted and in many cases the driver will admit to having had drugs, paraphernalia, or a passenger who likely had smoked recently in their vehicle . . .
Idiots. :facepalm:
I remember reading about a case where a drug dog was going through a school, and alerted on a kid; the child was taken aside and searched by police.
No drugs were found . . . but school administrators decided to suspend the kid for drugs anyway.
Father got rather irate . . . so the school offered to reduce the suspension due to complete absence of evidence.
That still didn't wash - so, with poor grace, bad publicity, and a call from a lawyer, the school reinstated the student and expunged the record.
BTW, while this was going on, the parents had the kid drug tested and he came out clean.
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I remember reading about a case where a drug dog was going through a school, and alerted on a kid; the child was taken aside and searched by police.
No drugs were found . . . but school administrators decided to suspend the kid for drugs anyway.
Ah, yes. The old "out of an abundance of caution" schtick.
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Law enforcement has always had a rather malleable and subjective set of "tools" to generate probable cause.
"Your eyes look glassy"...
"I smell alcohol"...
"I smell pot"...
If my eyes weren't *expletive deleted*ing "glassy", I'd be blind and unable to blink. :P
Whole thing is a tangled mess. On one hand the police are dealing with low-lifes 90% of the time, so bullshit made up PC usually bears fruit. Despite my strong Libertarian leanings, I admit to having very little concern about any one individual low-life. And it's possible the "broken windows" theory of policing is true, and easing up on the petty stuff and traffic stops would cause a significant bump in violent crime.
Problem is twofold: It's really hard, even nigh impossible to get truly objective data on these things because of the near impossibility of setting up a proper control group. NYC ends "stop and frisk" and shootings go up... was it really because stop and frisk ended, or was it just other demographic and economic pressures that would have made it go up anyway.
OTOH, it's really hard to watch "Live PD" for more than 15 minutes and not think that the whole damn thing isn't just a long running war of mutual attrition between the poor, and those with low social-capital and the police. I'd estimate that for less than one quarter of the police interactions they air, I can identify an actual "victim" (not counting the State, and it's taxes/fees) something like breaking up a fight, protecting private property by evicting squatters or dealing with a stolen vehicle.
When more than 75% of the show is minor moving violations followed with "why do I smell marijuana"... the whole #BLM thing starts making sense, where the REAL angst is coming from, and that the actual shootings are just an obvious focal point that gets attention.
But then, if they weren't out "rolling and hatin' looking for those riding dirty" how bad would it be with the real crimes and the real victims?
Then I remember that ideology provides clarity. Worrying about the overall crime rate is a collective response. And no collective result is cause for the weakening of individual rights.
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This has been reported (and sometimes documented) far too many times for it not to be true. Sorry, Cordex, I know what you posted is the way it's supposed to be, but I don't believe it works that way in the real world.
I'm sure it happens. Police abuse can manifest in a variety of different ways. As I've said before, a corrupt handler could easily lie about his dog indicating or mistrain his dog. However, any corrupt cop willing to lie can more easily jam you up without a dog. In many states if a police officer smells an odor they know through their training and experience to be marijuana they can search your car - no dog needed. If a cop is willing to lie that they smelled something or saw something or heard something that didn't happen, they don't need a dog to do it.
All that said, I've actually seen a piece of the "real world". Not that I'm an expert - except, perhaps, relative to people without any direct experience at all. Even so, I've seen and participated in quite a bit of K9 training - both narcotics and patrol - and I've had firsthand experience with countless live deployments of dogs both where they indicated and where they didn't. I've watched one particular dog go through training from the day it was arrived from Slovakia to becoming a core member of the K9 team. I've personally participated in blank training dogs to break them of the false indication habit. So, while I will give due respect to your opinion, my experience with the K9 community does not in any way support your beliefs except inasmuch as any group of sufficient size will have jackasses.
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When I was a prosecutor working for the drug task force, I handled a good amount of drugs. I often put evidence in my bag to carry into court. Out of pure curiosity, we ran a dog on my car and then my bag. No hit on my car, but a hot on my bag. Always made sure to carry my credentials when carrying my bag out of my jurisdiction, just in case.
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Problem is twofold: It's really hard, even nigh impossible to get truly objective data on these things because of the near impossibility of setting up a proper control group. NYC ends "stop and frisk" and shootings go up... was it really because stop and frisk ended, or was it just other demographic and economic pressures that would have made it go up anyway.
OTOH, it's really hard to watch "Live PD" for more than 15 minutes and not think that the whole damn thing isn't just a long running war of mutual attrition between the poor, and those with low social-capital and the police. I'd estimate that for less than one quarter of the police interactions they air, I can identify an actual "victim" (not counting the State, and it's taxes/fees) something like breaking up a fight, protecting private property by evicting squatters or dealing with a stolen vehicle.
When more than 75% of the show is minor moving violations followed with "why do I smell marijuana"... the whole #BLM thing starts making sense, where the REAL angst is coming from, and that the actual shootings are just an obvious focal point that gets attention.
The problem with NYC's stop and frisk program was the incredibly racist way it was carried out. They were frisking minorities like 20 times as often as whites. One particular black male teen was targeted effectively every school day.
And, no, the minorities aren't committing crimes at 20 times the rate. Estimates are that whites are carrying illegal weapons or drugs at about the same rates, but whites get a pass unless they're being obvious about it.
I wonder how the program would have been received if, rather than amounting to a substantial tax on the time of minorities, the cops were told to hand out a $20 gift card to anybody they searched and didn't get a bust, as an apology for wasting the person's time.
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And, no, the minorities aren't committing crimes at 20 times the rate. Estimates are that whites are carrying illegal weapons or drugs at about the same rates, but whites get a pass unless they're being obvious about it.
Citation needed.
Additionally, on the "being more obvious" issue, I'll cite Professor Rock:
https://www.youtube.com/watch?v=LQLCF4Tiqg4&t=0m57s
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Citation needed.
https://www.washingtonpost.com/news/the-fix/wp/2016/09/21/it-looks-like-rudy-giuliani-convinced-donald-trump-that-stop-and-frisk-actually-works/
Sorry, I was wrong. Blacks were only 2/3rds as likely to be carrying something illegal.
Note: While weapons were the stated goal, I figure that drugs was the real reason. Thing is, the 'reasonable suspicion' necessary to search for weapons is a lot less than for drugs, but they're allowed to prosecute if they find drugs in the search for weapons.
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https://www.washingtonpost.com/news/the-fix/wp/2016/09/21/it-looks-like-rudy-giuliani-convinced-donald-trump-that-stop-and-frisk-actually-works/
Sorry, I was wrong. Blacks were only 2/3rds as likely to be carrying something illegal.
Note: While weapons were the stated goal, I figure that drugs was the real reason. Thing is, the 'reasonable suspicion' necessary to search for weapons is a lot less than for drugs, but they're allowed to prosecute if they find drugs in the search for weapons.
Ah, whites who were stopped were more likely to be carrying illegal items than blacks who were stopped. (According to the article, which is suspect for being written by a moron reporter.)
Let's see, your statement was blacks were stopped at 20x the rate of whites, but were only 2/3 as likely to have been found to have something illegal than the whites who were also stopped. (I note hispanics don't feature in this "dataset" at all. Hmmm.)
With that MASSIVE imbalance in stops, the likelihood of finding an illegal object only drops to .67 the likelihood of finding it in the smaller population? That says something as well.
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Let's see, your statement was blacks were stopped at 20x the rate of whites, but were only 2/3 as likely to have been found to have something illegal than the whites who were also stopped. (I note hispanics don't feature in this "dataset" at all. Hmmm.)
I don't remember all the details, but hispanics were stopped more frequently as well.
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So, if I'm getting this -- and I might not be -- (I'm never sure these days) a guy is driving along with an illegal drug that IS NOT MARIJUANA in Colorado, is stopped by a policeman, who brings ina dog trained to sniff drugs, dog alerts, cop finds a drug that IS NOT MARIJUANA, and is still illegal, so he arrests the druggie, but the judge says it's no good 'cause the dog "might have" alerted to any drug, even marijuana, but since the MJ is legal, the druggie gets a GETOUTOFJAILFREE card.
Even though the FACT of the matter is the guy had ILLEGAL drugs? ??? ??? ??? ???
Yep. Funny legal loophole called the Constitution, which is often used by criminals and terrorists. Some police absolutely hate it and have been calling for it to be closed. Many politicians and a large/most of the population is promoting ending that loophole in part or in whole. They correctly claim it is also directly responsible for gun show loopholes and enabling hate speech.
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I don't remember all the details, but hispanics were stopped more frequently as well.
http://www1.nyc.gov/site/nypd/stats/reports-analysis/stopfrisk.page
Data quality isn't great. Going to clean it up a little and take a look.
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Yep. Funny legal loophole called the Constitution, which is often used by criminals and terrorists. Some police absolutely hate it and have been calling for it to be closed. Many politicians and a large/most of the population is promoting ending that loophole in part or in whole. They correctly claim it is also directly responsible for gun show loopholes and enabling hate speech.
Apparently the bit about "probable cause" went sideways since the guy had paraphernalia but no actual drugs. If he had possessed drugs but just not what the dog supposedly alerted to I guess I don't get why it should prove to be the fruit of the poison tree, unless it could be shown the officer knew his dog was alerting on smores, carrots, chocolate icecream, M&Ms , turnip greens, or any other odd stuff. How is the officer supposed to know beforehand?
Since my original understanding of this case was flawed, however, the conclusion I drew would seem to be equally flawed.
Oh well.....live and learn.
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Apparently the bit about "probable cause" went sideways since the guy had paraphernalia but no actual drugs. If he had possessed drugs but just not what the dog supposedly alerted to I guess I don't get why it should prove to be the fruit of the poison tree, unless it could be shown the officer knew his dog was alerting on smores, carrots, chocolate icecream, M&Ms , turnip greens, or any other odd stuff. How is the officer supposed to know beforehand?
Since my original understanding of this case was flawed, however, the conclusion I drew would seem to be equally flawed.
Oh well.....live and learn.
Because the dog could have alerted to a substance that's legal (marijuana), there could not be any legal justification for a search of the vehicle based on the alert. Therefore, ANYTHING found in the course of the search is fruit of a poisoned tree, and inadmissible as evidence. You are correct: There was no way for the officer to know what the dog was alerting on, and that's the entire point.
Think of it this way: We need a license to drive (legally). If we have a license, driving is legal. Police can't pick any car at random and stop it just to verify that the driver has a license, because there has been no indication of unlawful activity.
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Because the dog could have alerted to a substance that's legal (marijuana), there could not be any legal justification for a search of the vehicle based on the alert. Therefore, ANYTHING found in the course of the search is fruit of a poisoned tree, and inadmissible as evidence. You are correct: There was no way for the officer to know what the dog was alerting on, and that's the entire point.
Think of it this way: We need a license to drive (legally). If we have a license, driving is legal. Police can't pick any car at random and stop it just to verify that the driver has a license, because there has been no indication of unlawful activity.
As I said, probable cause "went sideways." As the OP said, a lot of police dogs are getting early retirement in some places.
In the immortal words of Chester Riley; "what a revoltin' development this is!" :angel:
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It's only a revoltin' development if you like the concept that your car or house can be searched because a cop says his dog alerted to something. I've known some K-9 officers over the years. I liked the officers and I've seen their dogs do searches for people, and I'm all in favor of that. Bomb sniffing dogs in airports? Fine. Cadaver-sniffing dogs at disaster scenes? Carry on.
Tear my car apart on the side of a highway because you taught your dog to "alert" when it knows you want it to alert? Nope. Not acceptable.
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Hey, Hawkmoon, I'm AGREEING with you....
I've already stated more than once I misunderstood the facts in the OP story. It just occurs to me that having spent bowcooo $$$$ training up however many drug sniffing dogs they did, to suddenly find that since maryjane is now legal, the whole legal rubric under which drug searches have been made being suddenly altered might be considered a "revoltin' development." I was not trying to suggest that law enforcement ought not revise their methods and take this new legal fact into consideration, and adjust. I'm sure it can be done.
I am not trying to suggest we should simply impose a police state. Really, if that was a goal, why bother with sniffer dogs?
EVERYONE gets searched. PERIOD. ALL the time. EVERYWHERE. AND anally probed as well. No more $$$$$ for dogs, it can be done CHEAPLY. And thoroughly.
And why bother with expensive trials, lawyers, and that pesky fifth amendment?
Just jail the bastiges.....
No, I do not want that.
I may not have any great and wondrous ideas for solving this nation's drug problems but I GET the Constitution and do not want it overturned.
It would be nice if I could erase my original post in this thread, though. =D :facepalm: ;)
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Nah -- I think we're all on the same page.
Unless there are some who DON'T have a problem with drug-sniffing dogs taking a stroll around their cars on the side of the road. In my several decades of life, I have known a fair number of police officers. Almost all of them I think would be considered "good guys" on a personal level, but I'd estimate that well over half are (or were, some are now retired) probably shitheads as police officers. Hence my earlier comments as to what I think dogs should and should not be used for.
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A drug K9 handler told me just yesterday that "searching for drugs is not work for them(dogs), it's like a game" and citing past experiences "when they don't get to play anymore they get deppressed and get sick".
So retiring is not so good for them.
It's awesome to see them work though.
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A drug K9 handler told me just yesterday that "searching for drugs is not work for them(dogs), it's like a game" and citing past experiences "when they don't get to play anymore they get deppressed and get sick".
So retiring is not so good for them.
It's awesome to see them work though.
So their handlers can buy [legal] weed and hide it around the house for the dogs. Keeps the dogs happy, and out of our cars.
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My personal opinion is that no "probable cause" tests should be applied to the
Fifth Fourth (oops) Amendment, articulable or not unless some hard evidence has been obtained by normal investigative work beforehand.
We are at the point where the "articulable" has been transferred to the behavior of an animal, rather than direct human observation. And this does not even touch upon the problem with the relativistic term "probable."
Just like the relativistic term "reasonable."
I don't have a solution to the drug so-called "problem," except to suggest that we ought to stop the unwinnable war against "some drugs" and let Darwin do the prosecution and punishment.
However, back on topic, having bred, raised, and trained many pups and dogs (I had my own kennel registry with the AKC), some to field readiness, some to only the "green broke" level, I can say with some authority that dogs can be very aware of subtle cues even though the handler is unconscious of those cues.
What's interesting about this is that we credit dogs with the intelligence to react to conscious cues (such as reacting to the smell of pot --or, for that matter, firearms and explosive residues) --yet don't credit them with the intelligence to react to more subtle cues from the handlers which can result in false positives.
I know some of us can get very defensive about the adequacy of rigorous training, yet, knowing dogs as well as other animals, I also know that it is certainly possible for them to "train themselves" to react to unconscious as well as just "very subtle" cues. And this goes way beyond just the sound of opening a can of dog food.
Indeed, the high level of "trainability" of any given dog allows for this actual possibility.
I therefore cannot bring myself to accept the idea that "probable cause" generated by a dog sniffing around a car or a baggage-handling facility at an airport should be acceptable enough evidence to trigger a violation of our constitutional protections.
(The very notion of a dog being "commissioned" as a police officer offends me.)
Let the police obtain hard evidence --not merely "articulable suspicion" of a possible violation --before our constitutional rights are violated.
Especially where the "articulation" involves barking and scratching up someone's car door.
There. I said it and I ain't takin' it back.
Terry, 230RN
Edited for minor corrections.