Silk Road forums
Discussion => Security => Topic started by: fizzy on March 11, 2012, 10:10 pm
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OK, I don't believe in tl;dr. Obviously. But, fair warning, this probably qualifies.
It's only relevant to you if you are in the US (and possibly Australia) and might be searched, have your mail examined, be sniffed by a dog, or be otherwise surveilled, as far as I can tell.
Drug Detection Dogs and the Growth of Olfactory Surveillance: Beyond the Rule of Law?
http://www.surveillance-and-society.org/articles4(3)/olfactory.pdfAbstract
Since the introduction of the Human Rights Act 1998 in the United Kingdom, a significant expansion in the use of drug detection dogs, the most common tool of olfactory surveillance, has taken place with relatively little debate, without specific legislative authority and in the absence of a code of practice. In contrast, the use of the dogs in New South Wales, Australia and in the United States has been the subject of Supreme Court decisions, and in New South Wales, of parliamentary legislation and an independent review by the New South Wales Ombudsman. This paper will argue that the difficult legal issues raised by olfactory surveillance are similar to those raised by other forms of ‘new surveillance’ in the criminal justice system and that the failure of the legal system to deal with these issues in the case of olfactory surveillance could amount to a dangerous precedent for the regulation of other surveillance technologies.
More oriented towards Australia (and ?Commonwealth countries.) Still quite a bit on the US Supreme Court and a discussion of the issues. This brings in surveillance concepts/privacy overall.
And on that topic of SCOTUS… I'm combining this into one megapost, I'll get to those below.
excerpt:If the dogs are, in actual fact, mainly deployed to detect drug users, it should be noted that drug use is not in fact a crime. The difference between the possession of a drug and the use of a drug might seem insignificant, but it is the point at which the legal line has been drawn. In Pragliola [1977] Crim. L.R. 612, P was charged with possession of the traces of cannabis found in his pipe. The court held that the charge was oppressive and could not be justified in the circumstances. Police dogs are unable to distinguish between residual scents of illegal drugs and the substances themselves (Marks, 2006). As a result of failing to recognise engagement of the right to privacy by the use of drug detection dogs, neither the categories of people liable to monitoring nor the category of offence which may give rise to such monitoring is anywhere defined. Consequently ‘surveillance creep’ has gone undetected and members of the public are now being monitored for behaviour that does not amount to a crime. Marx has made the point that such ‘fishing expeditions’ or generalised ‘searches’ shift the burden of proof from the state to the target of surveillance (Marx, 2005: 777)
Conclusion
The rejection of the submission that a dog ‘sniff’ is an intrusion of privacy, on the basis that odours emitted from a person are exposed to the plain perception of the public at large ignores the fact that dogs are used precisely because of their ability to detect and identify odours which are not exposed to the plain perception of the public at large. This paper has sought to illustrate that the use of drug detection dogs engages the right to privacy to the same extent as other new surveillance technologies in revealing personal information that would previously have only been obtainable by physical intrusion.
The refusal to treat a ‘sniff’ as search renders the constitutional and legislative protection of privacy obsolete in the face of new surveillance technologies. Treating the dog as an ‘extension of the police officer’ and excluding it from regulation on this ground, as the New South Wales Supreme Court did in Darby v DPP, sets a dangerous precedent because the rationale could be applied to the whole range of surveillance technologies including listening devices. In failing to regulate the use of drug detection dogs, there is a danger that the police deployment of new surveillance tools will develop a logic beyond the reach of the rule of law. This danger is illustrated by police reliance on the mistaken premise that if a person has ‘nothing to hide’, they will have ‘nothing to fear’ from their detection dogs and that attempts to evade them should therefore be treated as grounds for suspicion. This is inconsistent with the law and, as illustrated by the empirical research into the accuracy of drug detection dogs conducted in New South Wales, police detection tools are not necessarily as reliable as the police believe. We are therefore right to fear new detection tools, even when we have nothing to hide, because they are reaching beyond the rule of law.
Now:
It's been an interesting year for the Supreme Court and defining "search."
As I'm keeping score, it seems that - Stingray: search. GPS: placing it is the problem, but search. Cellphone tracking, up in the air?
Florida v HARRIS is coming right up.
http://www.scotusblog.com/case-files/florida-v-harris/Issue: Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.
But now they've delayed Florida v. JARDINES.
http://www.scotusblog.com/case-files/cases/florida-v-jardines/Issue: Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?
Plain English Issue: Whether police violated the Fourth Amendment by taking a dog that had been trained to smell for drugs to the door of a house where they suspected that marijuana was being grown.
http://www.scotusblog.com/?p=139578
http://www.scotusblog.com/2012/01/two-cases-granted-2/
(1/2012)
The Supreme Court on Friday agreed to clarify when police may use a drug-sniffing dog at the front door of a house, when police believe the house is being used in drug trafficking.
...
In the drug detection case, Florida v. Jardines (docket 11-564), the Court agreed to decide one of the two questions raised. The constitutional issue at stake is whether police must have probable cause — a belief that evidence of a crime will be found — before they may use a dog sniff at the front door of a suspected “grow house,” or a site where marijuana is being grown. The case grows out of a Miami police officer’s use of a drug-detecting dog, “Franky,” in December 2006 to follow up on a “crime stoppers” tip that the house was being used to grow marijuana plants. The Florida Supreme Court ruled that police needed to have probable cause belief in wrongdoing before they could use the dog at the home, on the premise that the drug sniff was a “search” under the Fourth Amendment.
The state of Florida told the Supreme Court that the state ruling conflicts with Supreme Court precedent that a dog sniff is not a search under the Fourth Amendment. “This Court,” the state said, “has explained that a dog sniff is not a search because the sole knowledge that the dog obtains by sniffing is the presence of contraband, which a person does not have a reasonable expectation of privacy in possessing in the first place.” The petition cited the Court’s 2005 decision in Illinois v. Caballes, and argued that the Florida courts “are now alone in refusing to follow” that ruling.
In granting review of the probable cause issue, the Court opted not to hear a second question, testing whether police had engaged in a search simply by remaining outside the house while awaiting a search warrant. As is customary, the Court on Friday did not explain the refusal to hear that issue.
(2/23/2012)
In 2006, Miami police received a tip that the home of the respondent, Joelis Jardines, was being used to grow marijuana. Based on that tip, a dog handler took Franky – who had been specifically trained to detect drugs – to the door of the house. After Franky indicated that he had smelled drugs in the house, a detective went to the door, where he smelled marijuana. The police then obtained a warrant to search the house, where they found several live marijuana plants. Jardines was arrested and charged with drug trafficking, as well as stealing several thousand dollars’ worth of electricity to power his operations.
Jardines then tried to have the marijuana suppressed, on the ground that Franky’s sniff at his door violated the Fourth Amendment, which prohibits unreasonable searches and seizures. The Florida Supreme Court agreed with him, concluding that the dog sniff was a “search” that itself required a warrant. In that court’s view, even sniffing the front door of a house invades the sanctity of the home in a way that triggers the protections of the Fourth Amendment.
The state filed a petition for certiorari, asking the U.S. Supreme Court to step in to review its state supreme court’s decision. The state relied on several decisions by the U.S. Supreme Court holding that dog sniffs in other contexts – for example, of cars or luggage in an airport – are not searches because all that the sniff does is use the generally circulating air to indicate whether drugs are present. Because in this case Franky merely signaled to his handler that he smelled drugs in Jardines’ house, the state explained, this case is more like the other dog sniff cases than Kyllo v. United States, on which the Florida Supreme Court had relied. In Kyllo, the Court held that the warrantless use of an infrared device to detect a marijuana-growing operation in a house was unconstitutional because the device could reveal otherwise private information about legal activities within the home. The state argued that review was also appropriate because the state supreme court’s decision conflicts with those of two federal appellate courts, which have both held that a dog sniff of a residence is not a search.
With the Court having decided not to add any more cases to its April calendar, the case won’t be argued until the fall. So we could have to wait until next year to find out if the Court agrees with the state that a sniff, no matter where it happens, is just a sniff – and not a search.