This Dog Can Authorize Anal Probes

Yesterday Brian
Doherty
noted a federal lawsuit by a New Mexico man, David Eckert, who
was forcibly subjected to anal probings, stomach X-rays, enemas,
and a colonoscopy because police officers who pulled him over for a
rolling stop suspected he had drugs hidden inside of him. No drugs
were found. Now KOB, the Albuquerque TV station that reported
Eckert’s story, has
discovered another motorist who was forced to undergo a
similarly rigorous search of his digestive tract after being
stopped for a minor traffic violation. According to police reports,
Timothy Young was pulled over for failing to signal a turn and
ended up exposed to the prying hands and eyes of cops and doctors
acting on their behalf. No drugs were found. In both cases, KOB
reports, the same police dog, Leo, triggered these intimate
examinations by alerting to a car seat. It turns out that Leo is
not so good at identifying vehicles (or people) containing
drugs:

[Leo] seems to get it wrong pretty often. He might be getting it
wrong because he’s not even certified in New Mexico.

If you take a look at the dog’s certification, the dog did get
trained. But his certification to be a drug dog expired in April
2011. K-9s need yearly re-certification courses, and Leo is falling
behind.

“We have done public requests to find anything that would show
this dog has been trained, we have evidence that this dog has had
false alerts in the past,” Eckert’s attorney Shannon Kennedy
said.

According to the Supreme Court, none of this necessarily
disqualifies Leo as an informant reliable enough to obtain a
warrant authorizing the sort of humiliating searches that Eckert
and Young underwent. Last February the justices unanimously

ruled that “a court can presume” an alert by a
drug-sniffing dog provides probable cause for a search “if a bona
fide organization has certified a dog after testing his reliability
in a controlled setting” or “if the dog has recently and
successfully completed a training program that evaluated his
proficiency in locating drugs.” In practice, this means that if
police say a dog is properly trained, they can get a search warrant
based on nothing more than the animal’s purported alert, and that
search will be upheld unless a defendant can present evidence
showing the dog is unreliable. Police need not produce (or even
keep) data on the dog’s actual performance in the field, evidence
the Court deemed inferior to the results of tests in a “controlled”
(i.e., rigged) setting.

Hence if it turns out that Leo’s alerts frequently lead to
fruitless searches, that does not necessarily mean he will be
deemed unreliable, even if he is wrong more often than he is right
(which is
often the case with drug-detecting dogs). According to police
(and the Supreme Court, which essentially has adopted their point
of view), what look like mistakes may actually be alerts to traces
of drugs so minute that their existence cannot be confirmed. Hence
you can never definitively say that a police dog erred, even though
there are
many possible sources of error, including distracting smells
and conscious or subconscious cues by handlers. Not to mention the
ever-present possibility that cops who want to search someone can
falsely claim a dog alerted. The upshot is that if a cop wants to
explore a motorist’s anus, stomach, intestines, and fecal matter,
all he needs is a dog and a judge who takes to heart the Supreme
Court’s unjustified faith in canine capabilities.