"This is not a new technology. This is a dog"

[David Farber <dave () farber net>]

Begin forwarded message:

From: Bruce Schneier <schneier () counterpane com>
Date: November 16, 2004 9:17:56 AM EST
To: EPIC_IDOF () mailman epic org
Subject: [EPIC_IDOF] "This is not a new technology. This is a dog"

I'm afraid that this has some scary implications for technological  
searching as well.  If the court argues that a drug sniffing dog is not  
a search because dogs aren't people, then by extension computers aren't  
people either.

Bruce

*******************

http://www.latimes.com/news/nationworld/nation/la-na- 
scotus11nov11,0,3799193.story?coll=la-home-nation

Top Justices See Benefits of Police Dogs

In oral arguments on an Illinois ruling that police must have evidence
before using them, most of the Supreme Court agrees that a 'sniff is
not a search.'

By David G. Savage, Times Staff Writer

WASHINGTON â€" A dog can be a drug cop's best friend, and most of the
Supreme Court justices said Wednesday that they saw no reason to limit
a police officer's use of a dog to sniff out drugs or explosives.

The high court is being urged to overturn a 2003 decision by the  
Illinois
Supreme Court, which held that a police officer who stopped a car for
speeding needed evidence of a drug crime before the officer called in a
drug-sniffing dog. Otherwise, the state judges said, all traffic stops
could turn into drug searches.

But many of the Supreme Court justices seemed to view the issue
differently during oral arguments Wednesday.

"A dog sniff is not a search," Justice Sandra Day O'Connor told a lawyer
for the Illinois defendant, flatly rejecting the essence of his case.

Around Capitol Hill, O'Connor said, there are many security checkpoints,
and some use dogs to check cars, packages and backpacks. Are all of
those searches unconstitutional? she asked.

In their comments and questions, O'Connor and most of her colleagues
said they were not prepared to rule that a police officer first had to
have hints of a crime before the officer used a dog to sniff for  
evidence.

"Dogs are used all over the country with great effectiveness,"  
Christopher
Wray, an assistant U.S. attorney general, told the court. They sniff
for bombs and drugs at the borders, at airports and bus stations, and
around cars that are stopped on the highway. "There is no intrusion
[on the privacy of the owner], and therefore no search," he said.

Illinois Atty. Gen. Lisa Madigan argued that nothing in the Constitution
prevented the police from using dogs to sniff around cars. "A dog sniff
is not a search and requires no justification," she said.

Madigan and the Bush administration are urging the justices to overturn
the Illinois Supreme Court decision.

That ruling had been a victory, perhaps a temporary one, for Ray
Caballes. The salesman said he was moving from Las Vegas to Chicago in
November 1998 when an Illinois state trooper stopped him on Interstate
80 for driving 71 mph in an area where the speed limit was 65.

When the state trooper stopped Caballes, another trooper radioed that
he would be there shortly with a drug-sniffing dog. Immediately, the
dog responded to smells from the trunk of the car, where the troopers
found marijuana.

The 4th Amendment bans "unreasonable searches and seizures" by the
government, and the Supreme Court has struggled for decades to decide
what is and is not an "unreasonable search."

Three years ago, the high court surprised law enforcement experts by
ruling that it was unconstitutional for drug agents to use heat-seeking
devices to detect marijuana plants growing inside a home. Usually, the
plants grow under hot lights that emit heat that can be detected from
the street.

But on Wednesday, Justice Antonin Scalia, the author of the 2001
opinion, said it did not mean the use of drug-sniffing dogs was
unconstitutional. The heat detectors are a new technology that can,
in effect, look inside a house, he said.

"This is not a new technology. This is a dog," Scalia said.

In the past, the court has upheld the use of drug-sniffing dogs in bus
depots. "It was a good place to find criminals carrying drugs…. And
the Republic seems to have survived," Scalia said.

Two justices, David H. Souter and Ruth Bader Ginsburg, raised doubts
about the widespread use of dogs.

If the use of a sniffing dog is not a search, "why can't police go up
to the front door of every house on the street?" asked Souter. When
the homeowner comes to the door, the dog could sniff for drugs inside,
he said.

The government lawyers said police were unlikely to undertake such
efforts.

Dogs can be large, loud and frightening, Ginsburg said, and many  
citizens
may say to themselves, "I have a right to be let alone by my  
government."

Chief Justice William H. Rehnquist, who is undergoing treatment
for thyroid cancer, was at home, but Justice John Paul Stevens said
Rehnquist reserved the right to vote on the outcome in the case,  
Illinois
vs. Caballes.




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