In his dissenting opinion in Illinois v. Carballes, Justice Souter remarks that an “infallible dog is a creature of legal fiction.” Therefore, he posits, conducting a dog sniff during a routine traffic stop constitutes an illegal search unless it is backed by a warrant. The significant risk of false positives and the ensuing illegitimate search is an unacceptable threat to the Fourth Amendment. In Souter’s opinion, the imperfection of the tool renders it unconstitutional without a warrant.
In State v. Jackson, the Washington Supreme Court ruled that placing a GPS device on a car requires a warrant. The court acknowledges that the GPS device “provides a technological substitute for traditional tracking” which is both more reliable and more resource-efficient than the nearly impossible task of “maintaining uninterrupted 24-hour surveillance for approximately two and a half weeks.” However, it is the very ease and efficiency of using the GPS device which makes it so problematic. In the court’s opinion, the perfection of the tool renders it unconstitutional.
These two seemingly contradictory theories highlight the importance of maintaining the presumption that any act other than routine observation constitutes a search and seizure, thus requiring a warrant. Acts that are border-line at best, and hinge upon the perfection or imperfection of the tool used, most likely constitute searches and necessitate warrants. It should come as no surprise that the convoluted legal reasoning necessary to rationalize the expansion of police power often doubles back on itself and creates logical contradictions not easily resolved.
In the digital age, as technology improves, it becomes increasingly tempting to allow intrusive and sweeping searches on the grounds that no rules are technically broken. But this is where it is helpful to step outside of the complex legal framework and look objectively at the cases. A dog sniff is a search because it involves using a police instrument (a dog) to ascertain the contents of an individual’s hidden possessions. Similarly, attaching a GPS device to a car appears to be more significant than mere police “tailing” as it entails a constant and precise record of that car’s whereabouts through aid of an electronic device. A dose of common sense is often more useful than the most sophisticated and complicated legal arguments. In reviewing conflicts between technology and privacy, the spirit of the Fourth Amendment must be preserved above all else.
great post! though its quite a leap to say that because of these two seemingly contradictory theories, we must adopt a theory of the 4th Amendment that relies on a notion of "routine" or "traditional" observation. as criminals become more technologically savvy, are you suggesting that we prohibit cops from following suit?
ReplyDeleteI agree with you that it is dangerous to prohibit the police from using updated technology. My argument is not that we impede general police action and searches with warrants, but rather that a conservative approach be taken in allowing warrant-less searches. We must be increasingly proactive in requiring warrants for actions that require the use of new technology, as that new technology often poses an intensified and unprecedented risk to Fourth Amendment rights.
ReplyDeleteI'm not sure that the dog sniff cases and the GPS case you mention are completely at odds. I'd characterize the dog sniff cases as being about the scope of the search and the accuracy of the technology: what does it detect other than the presence of contraband? The more perfect such a technology (i.e. the fewer false positives), the more acceptable it is under the Fourth Amendment. The court's concern with GPS seems to me to be more about efficiency rather than accuracy. The more efficient the technology becomes (i.e. the more people it can keep track of at one time), the more suspect it becomes from a Fourth Amendment perspective. Can you reconcile the dog sniff and GPS cases by thinking about them in terms of the amount of non-criminal information the search reveals (the more non-criminal information, the more suspect under the Fourth Amendment)?
ReplyDeleteAlso, consider whether requiring a warrant is always less intrusive in every instance of police activity. For example, if you're stopped for speeding and the police for some reason suspect you might be carrying drugs, wouldn't you prefer that they quickly run a drug-dog around your car and send you on your way rather than detain you for the several hours (or more) it may take to obtain a search warrant? This links back to the question of whether the 4th Amendment protects an individual right or a collective right. What do you think?
I agree with your first point about the scope of the search. The narrow nature of the dog sniff vs. the breadth of the GPS device was something I had not thought of until it came up in class, and this difference does seem to drive the Court's opinions in these two cases. However, I would still maintain that there is a certain danger in allowing the warrantless search of an individual, even if using an instrument which (ostensibly) only reveals criminal information. By relying on the police to choose and utilize an instrument with a narrow scope, we are entrusting a significant portion of Fourth Amendment protection to the government. Recall Powell's refusal to consider the authorities' self-imposed limitations in Katz: reliance on the police to exercise self-restraint seems to defeat the purpose of the warrant requirement. After all, what is to stop the police from mis-representing a "search tool" as having a narrow scope when in fact it yields much more extraneous information?
ReplyDeleteWhile I understand your second point about the inconvenience of detainment while waiting for a warrant, I think it remains important to avoid conflating convenience and privacy. My guess is that individuals transporting legal but unpopular political or religious paraphernalia would gladly trade convenience for privacy. They would much rather wait several hours for the police to attempt (and likely fail without probable cause of any criminal wrongdoing) to obtain a warrant rather than be subjected to an immediate search by suspicious authorities.