The United States Supreme Court is moving toward allowing more and more suspicionless searching under the Fourth Amendment. In Illinois v. Caballos, for example, the Court held that an officer may conduct a dog sniff of the outside of a car after a traffic stop. In dissent, Justice Ginsburg argued that random dog sniffing is pretty much A-OK after this decision, writing:
[Caballos] clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green.
The Canadian Supreme Court, however, takes a different view and does not share this disrespect for individual privacy and autonomy. The Court considered two cases (Kang-Brown and A.M.) where trained drug sniffing dogs sniffed backpacks in a high school and bags in a bus depot - in both cases, without reasonable suspicion. The Court held the searches violated Canadians' right to be free of unreasonable searches and seizures as protected by the Charter of Rights. I am not a student of Canadian law, and I'm not sure the degree to which Parliment may adopt legislation that empowers police to engage in these searches. But the decisions make clear that this Court views dog sniffs as intrusive searches - a significantly different perception of the matter than that shared by the U.S. Supreme Court.
Some may argue that Canada faces less serious threats - particularly with respect to terrorism. But fears of terrorism and widespread drug use are also handy tools for those who prefer a highly interventionist criminal justice state. If Justice Ginsburg is right in her analysis - and I suspect she is - and the Courts and legislatures continue their embrace of policing über alles, this Land of the Free will become discernably less so.
I am watching with sadness the slow dilution of 4th Amendment protection, from National Security Letters to inventory searches. Yet, dog sniffing does not bother me. Ask yourself this -- if a trained dog sitting at a traffic stop near Disney World signals its owner that a car contained traces of nitroglycerine or other explosive, would you find that different? It is the same legal issue. How about if what is discovered is drugs far more potent than pot? Again, it is the same legal issue. Or, would you have a problem if an officer with a highly sensitive snout smelled the pot in a car stopped for a ticket. Should the fact that a dog sniffed it out make a difference?
I don't believe recreational use of pot does anyone any good, and have never indulged myself, but I am for its legalization, at least at home or in other semi-private environments. That anyone ever would spend a minute in jail for smoking it is offensive to me. But, that issue should not be mixed up with 4th amendment issues and I believe that sometimes happens with this issue.
Thanks for the post.
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