Mises Wire

Police Dogs Have Abolished Constitutional Due Process

The Fifth Amendment declares, “No person shall be . . . deprived of life, liberty, or property, without due process of law.”

Except by dogs.

The Supreme Court declared in 1967, “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.”

Except by dogs.

The Fourth Amendment prohibits warrantless unreasonable searches, but canines now provide push-button vetoes for constitutional rights. Last month in my piece “Highway Robbery Continues to be the Law of the Land,” we saw how police across the nation concocted pretexts to stop and shake down drivers. But few people recognize how far police and judges have gone to exploit canines to nullify both privacy and property rights.

When a pooch graduates from a drug-sniffing training program, government officials act as if the dog has been awarded a Juris Doctor degree with the ability to instantly declare “probable cause” and justify a search. If a private dog owner announced that he automatically had a right to seize control of any item his dog pawed or urinated upon, he would be denounced as a megalomaniac. But this is practically the prerogative that police claim for their dogs.

Police canines have long provided the Midas touch to entitle government agents to plunder who they please thanks in part to the pervasive tainting of American currency. In 1985, the Toxicology Testing Service examined currency taken from prominent local citizens for a Miami Herald article. Then–Dade County state attorney Janet Reno and future Florida governor Jeb Bush were both caught with drug-tainted bills in their possession. But nobody took a dime from those pooh-bahs. Thirteen years later, Bob McCabe, an official with the testing service, commented, “Every test I’ve seen has shown that all money, except if it comes right from the bank, is tainted with drugs. People who run ATMs and tellers from the bank have even been found to have cocaine on their fingertips after handling money all day.”

The sporadic recognition that the tests were bogus did not prevent the abuse of dogs for a forfeiture gold rush. American Civil Liberties Union attorney Fred Joseph groused to the Washington Post in 1990, “Everything the dog does, no matter what it is, the police claim it’s a hit. If the dog barks, it’s a hit. If the dog sits down, it’s a hit. If the dog fell over dead, they’d probably claim the scent of cocaine killed him.” Stephen Komie, a Chicago-based attorney, lamented in 2019 that ordinary citizens’ rights had no chance “because the dog will never come and testify, and you can’t cross examine a dog.”

Even though Janet Reno was personally caught in a test for tainted currency, she helped turbocharge federal plundering via dog alerts after she became attorney general in 1993. Federal judges occasionally derided doggy decrees:

  • In 1994, a federal appeals court concluded, “If greater than 75 percent of all circulated currency in Los Angeles is contaminated with drug residue, it is extremely likely a narcotics detection dog will positively alert when presented with a large sum of currency.”
  • A 1996 federal appeals court scoffed that dog alerts were “virtually meaningless” thanks to the “extremely high percentage” of currency tainted by drugs.
  • In the 1997 case US v. $506,231, another appeals court declared that “even the government admits that no one can place much stock in the results of dog sniffs.”
  • In 1998, federal judge James Moran rejected a cash seizure based almost solely on a dog alert because otherwise “the property of virtually any person traveling with a substantial amount of cash would be subject to forfeiture.”

But occasional judicial rebuffs failed to slow the forfeiture juggernaut. A 1998 headline in Florida’s Stuart News summarized the reality: “Seized Money: More Drivers Losing Cash That Smells Like Drugs.” The Orlando Sentinelnoted, “Deputies routinely said bills in denominations of $1, $5, $10, $20, $50 and $100 were suspicious because they are typical of what [drug] dealers carry. But that leaves few alternatives for others.” Because minorities were more likely to be stopped and searched by police, blacks and Hispanics were more often the victims of official shakedowns.

Rather than taking action to end the abuses, politicians sought to canonize the injustice. In 1998, Senator Max Cleland (D-GA), responding to dog-disparaging judges, proposed the “Drug Currency Forfeitures Act” to allow federal agents to confiscate the cash of anyone who possessed more than $10,000, was traveling on a highway, and whose money generated a positive alert from a government canine. Because the police dogs were presumptively trustworthy, “legitimate owners of untainted money will be protected,” Cleland declared. Cleland explained, “This does not set up a situation that justifies willy-nilly seizures. It sets up a presumption that if it walks like a duck and talks like a duck, it’s a duck—and is therefore subject to drug forfeiture statutes.” (Ducks were not automatically forfeitable under his proposal.) Cleland’s crazed bill was reportedly written in large part by Justice Department lawyers. The bill did not become law, but federal agencies continued treating their American targets like sitting ducks.

Outside of law enforcement agencies, Supreme Court Justices have been the biggest fans of drug-sniffing dogs. The Supremes repeatedly splattered judicial holy water on “search warrants on a leash”—especially by pretending that canine searches are not really searches so why would non–drug dealers object anyhow? In a 2005 dissent, Supreme Court Justice David Souter scoffed that “the infallible dog is a creature of legal fiction.” In a 2013 case, the court held that any dog that has been “certified” is sufficiently trustworthy to authorize forcible searches without consent, thereby nullifying the Fourth Amendment prohibition against warrantless unreasonable searches. As Washington Post columnist Radley Balko quipped, “In the alternate reality of the criminal justice system . . . any police dog that is ‘certified’ is accurate and reliable—because the Supreme Court says they are.” Balko continued, “It’s no wonder one police department scrapped any pretense of fairness and just named its drug dog ‘Guilty.’”

Drug dogs are treated as omniscient even when official records indicate they mostly give false alerts. The Washington Post reported in 2014, “Police often rely on drug-sniffing dogs to justify warrantless searches when a driver refuses to give consent. In 48 cases examined by the Post, dogs alerted to the presence of drugs but the officers found only money.” The 100 percent strikeout rate was a harmless error since the government always won. A study by University of California, Davis, “found that detection dogs gave false positives 85 percent of the time.” A 2018 critical review of scientific literature in the Journal of Forensic Sciences concluded that “canine alert to US currency is not sufficiently reliable to determine that currency was directly used in an illicit drug transaction.”

Despite all these scientific findings and judicial drubbings, dog alerts are still “close enough for government work” to nullify property rights. In 2021, drug dogs aided and abetted an $86 million safe deposit box robbery. The Federal Bureau of Investigation (FBI) raided US Private Vaults, a Beverly Hills, California, company that provided customers with secure storage compartments. The search warrant specifically prohibited the feds from seizing the contents of 369 private safe deposit boxes, but the FBI broke into them regardless and sought to “confiscate thousands of gold and silver bars, Rolex watches, and gem-studded earrings, bracelets and necklaces,” as well as over a million dollars in poker chips. The FBI’s search warrant effectively labeled all of the customers as criminals: “Only those who wish to hide their wealth from the DEA, IRS, or creditors would instead choose to pay to store actual cash at a single storefront operation owned by the likes of [US Private Vaults’ co-owners].” Alerts by drug dogs sufficed to seize the cash. The FBI also claimed that the fact that some of the money was wrapped in old rubber bands indicated that the owners were drug dealers. The Los Angeles Times reported, “Many box holders have agreed to give up a portion of their cash and property after deciding it was not worth spending tens of thousands of dollars in legal fees—or more—to recover the rest.” A federal judge eventually forced the FBI to return the seized property to some of the box holders.

Relying on dog alerts to justify seizing Americans’ cash has been a brazen legal obscenity since at least 1985. If the government won’t even play fair when its own judges condemn its rapacity, what chance do citizens have of receiving due process from their rulers on any other issue?

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