Arlington, Va.—Should the government be allowed to search and seize your possessions based on nothing more than a positive “alert” from a drug-sniffing dog? The Fourth Amendment to the U.S. Constitution requires police, in most situations, to have what is known as a “probable cause” (a reasonable belief based on sufficient facts) before they can search or seize property. Increasingly, however, police have been using drug-sniffing dogs to establish probable cause to seize, and ultimately keep through civil forfeiture, cash, cars and other property on the grounds that the property may be linked to a drug crime.
“Using a police dog alert as the sole justification to search and seize private property violates constitutional guarantees,” said IJ Attorney Darpana Sheth, who authored the Institute for Justice’s amicus brief in the Florida v. Harris case, which will be heard on October 31, 2012, before the U.S. Supreme Court. “First, numerous studies, including a recent one by the University of California-Davis, have shown that drug-sniffing dogs are unreliable because, all too often, they are alerting due to cues from their handler or residual odors, rather than the actual presence of drugs. Second, police dog handlers work in departments that are often funded through forfeiture funds, giving them a direct financial incentive to ‘police for profit’ rather than pursue the neutral administration of justice. These are two serious concerns the Court should not ignore as it hears this case.”
Because it is the government’s burden to prove probable cause when conducting a warrantless
search, IJ’s amicus brief argues that it must introduce evidence of the reliability of the drug-sniffing dog and corroborate the “alert” with independent police work, just as the government is required to do when relying on confidential informants. Evidence of the dog’s reliability includes, at minimum, the dog’s training records, the dog’s prior performance in the field, and the experience of the police dog’s handler.
For a copy of the Institute for Justice’s amicus brief in Florida v. Harris, visit:http://www.ij.org/images/pdf_folder/amicus_briefs/fl-v-harris-amicus.pdf.
The same day, the Supreme Court will also hear argument in another dog-sniffing case. In Florida v. Jardines, the Supreme Court will consider whether a dog sniff at the front door of someone’s home is a search under the Fourth Amendment, requiring probable cause. The Supreme Court’s rulings in both of these cases could have drastic consequences for innocent property owners.
“The Harris case has serious implications for civil forfeiture,” said IJ Senior Attorney Scott Bullock. “Relying solely on a positive alert by a dog to establish probable cause will seriously erode property rights and lead to greater forfeiture abuse. Although dogs can serve as valuable investigative tools, they should not be the sole means to establish probable cause for a search. Watering down the probable cause standard in this way would vastly expand the power of law enforcement to seize, forfeit, and profit from the property of innocent owners, even when there is no evidence of criminal wrongdoing.”
Bullock said, “Given that more lax procedural requirements apply to civil forfeiture than criminal forfeiture, law enforcement often pursues the civil forfeiture avenue. Indeed, 80 percent of persons whose property was seized by the federal government for forfeiture were never even charged with a crime.”
By allowing law enforcement to keep forfeiture proceeds, civil forfeiture creates systemic abuse.
“Incentives matter,” Sheth said. “Just as private citizens are motivated by self-interest, so too are government officials. Even the most well-intentioned law enforcement officers attempt to maximize the size and budget of their agency, increase their salaries, and gain power and prestige. Because, in contrast to private citizens, government officials can use force to achieve their ends, it is a constant threat that those in positions of power will use that force to serve their own self-interest at the expense of the larger public. This concern reaches its zenith when government officials stand to benefit themselves by seizing private property.”
As a direct result of federal and state law incentivizing law enforcement officials to seize property under civil forfeiture, there has been an explosion of forfeiture revenue. The U.S. Department of Justice’s Assets Forfeiture Fund—the largest of the federal government’s forfeiture funds—more than tripled in less than a decade, growing from $500 million in FY 2003 to $1.8 billion in FY 2011. State law enforcement agencies have been getting more and more money through the federal equitable sharing program, which pays state agencies with up to 80 percent of the forfeiture proceeds for referring civil forfeitures to federal authorities. Not only do state agencies directly benefit from forfeitures under equitable sharing, but forfeitures conducted under their own state laws also are on the rise. In Florida, law enforcement officials receive 85 percent of the funds generated from civil forfeitures under state law. In a mere three-year period from 2001 to 2003, Florida raked in more than $100 million in forfeitures under state law and anywhere from $16 million to $48 million per year in the 2000s through equitable sharing.
Chip Mellor, president and general counsel for the Institute for Justice, said, “Modern civil forfeiture laws represent one of the most serious assaults on private property rights today and this abuse must end. The Institute for Justice greatly curtailed eminent domain abuse over the past decade. We are now working to fight forfeiture abuse through the same advocacy in courts of law, in the court of public opinion, as well as through strategic research and activism to stop these abuses of private property rights.”