William,

I would agree completely with your assessment right up to the part where the agent made the thinly-veiled threats regarding the vehicle search. Given that neither the pilot flying the aircraft nor the passenger matched the description of the suspect they were looking for, why ask to search the plane?

That was clearly a fishing trip, and in my mind completely unnecessary once it became apparent neither of the plane’s occupants were of interest in the matter at hand.

Agents often make the implication that you will somehow become of greater interest and increase suspicion on yourself if you refuse to allow a search, or that “it will go easier on you” if you cooperate. These are, in fact, lies. The truth is your status as a suspect in the eyes of the law does not change if you exercise your constitutionally-protected rights. Indeed, proof that police used your choice to exercise your rights as evidence of wrongdoing is grounds for dismissal in court. Further, aside from making his/her job easier, cooperation with an investigator will change nothing when it comes time to pursue charges if the authorities discover contraband.

The accuracy of drug-sniffing dogs is coming more and more under fire in the courts of late, despite a recent (2005) Supreme Court ruling that an alert by a detector dog constitutes probable cause. Unfortunately, it seems the court either ignored or was not made aware of factual studies and logic in its ruling. The reality is some dogs are better than others, and even the best dog with the most sensitive nose is only as good as his handler. There is a complete lack of standardization and/or testing when it comes to dog and handler training, which means dogs and handlers trained by one agency might be much better than those supplied by another. Additionally, there is mounting evidence that the dogs (surprise!) are strongly influenced by their handlers’ demeanor and behavior. In other words, if the handler is sure there are drugs present, the chance of an alert by the dog greatly increases.

There are many other problems with using a detector dog alert as probable cause which you can read about here.  In fact, this investigation by the Chicago Tribune of data supplied by suburban Chicago police departments pegs detector dogs’ accuracy below 45%.

Why am I so concerned about this issue? Because the “probable cause” generated by a detector dog alert can cause a great deal of trouble even if a subsequent search turns up no evidence of illegal activity. In at least one case a citizen’s property—including $17,500 found during the detector dog-triggered search—was confiscated under Indiana state forfeiture law based entirely on a detector dog alert. Forfeiture law is a natural outgrowth of the 1970 RICO (Racketeering Influenced & Corrupt Organization) statues, which was a law created to allow government to go after mob profits. It eventually led to the Comprehensive Crime Control Act of 1984, which lowered the bar for civil forfeiture. To seize property, the government only has to show probable cause to believe that it was connected to drug activity, which is the same standard cops use to obtain search warrants. It was intended to motivate law enforcement to seek civil forfeiture, and it’s worked spectacularly. Indeed, many departments count on forfeiture as part of their funding. The problem for us ordinary folk is even if the owner of seized property isn’t charged with a crime, the property can still be held until the owner “proves” the property wasn’t used as part of criminal drug activity.

Obviously, this can lead to all kinds of problems when we’re talking about expensive assets like an airplane, which is why tactics such as threats to bring out detector dogs are as infuriating as they are successful in acquiring suspect cooperation. Many, including me obviously, believe these tactics, in conjunction with civil asset forfeiture laws, give law enforcement way more power that it should have when it comes to civil rights.

If it were me, and I had the time – since I know I have nothing to hide – I would force their hand, make them bring out the dogs and go through the motions. The only way we’ll ever get law enforcement to change the way the courts view the use animals in this regard is to generate enough data proving the inaccuracy of detector dogs. Only such data can lead to a ruling that the use of detector dogs impinges on Constitutional rights.

There is a good write up on this in the last LOBO News which you can download and read here.

-- Mark

Seems pretty standard to me.  They checked out a tip that proved to be bogus.  I don't see any rights violations here or anything out of the ordinary.

The main lesson IMO is that, while there are plenty of cops who abuse power, for the most part if you behave in a civilized manner and realize they are just trying to do their job, most of them will treat you fairly.  That seems to be what happened here.