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Advantage 1: Separation of Powers

Judicial and Congressional deference have become widespread.
Lankford, 7/15. (James Lankford. Rep. James Lankford was first elected to the United States Congress on November
2nd, 2010. James has also coordinated mission and community service projects in Belize, Malawi, England, Wales, and Germany as
well as many areas of Oklahoma. He serves on the Budget, Transportation & Infrastructure, and Oversight & Government Reform
Committees, where he is the Chairman of the Subcommittee on Technology, Information Policy, Intergovernmental Relations and
Procurement Reform. "Judicial Deference To Agencies Expands Executive Power And Increases Regulatory Burdens." Townhall. 7-152015 Web. Accessed: 8-9-2015.

It is emphatically the province and duty of the Judicial Department to say what the
law is declared Chief Justice John Marshall in the landmark case of Marbury v. Madison. For centuries this
statement has stood as one of the most famous in American jurisprudence. It was a declaration of the role and duty of the judicial
branch within our constitutional structure.

The Constitution provides for three separate and distinct

branches of government, each having a check on the other, thus allowing, as James Madison wrote, for ambition to
counteract ambition. As our government has grown and the issues we face have become
more complex, the lines separating the branches have blurred. While it used to be
that Americans were subject to federal laws passed by Congress, today the majority
of rules that govern their daily lives have been promulgated, interpreted, and
administered by federal agencies in the executive branch. So much for all legislative
power shall reside in Congress. The regulatory burden on everyday Americans is astounding .
Last year, according to the Competitive Enterprise Institute, federal agencies issued
nearly 16 regulations for every law passed by Congress, costing businesses an estimated
$1.88 trillion in lost economic activity. Federal courts are tasked with upholding constitutional principles when the political branches
fail to do so. When the law is ambiguous or silent on an issue, it is the responsibility of Congress to clear up or add to its language,
not the courts or an agency. The courts should adhere to the natural reading of the law and require government agencies to do the
same. In 2013, in City of Arlington v. FCC, the Supreme Court cautioned that judges ought to refrain from substituting their own
interstitial lawmaking for that of an agency. Yet this is exactly what was done by the Court in the recent King v. Burwell case
regarding Obamacare. In Burwell, the chief justice wrote that the principle of Chevron deference (which holds that courts should
defer to agencies interpretation of statutes when the language is ambiguous, provided the interpretation is reasonable) did not
apply. Had Congress wished to assign that question [of whether Obamacare tax credits were available on federal exchanges] to an
agency, Chief Justice Roberts wrote for the majority, it surely would have done so expressly. Unfortunately, in this instance the

precedent for the Court substituting

another opinion for that of Congress was set by the Supreme Court in Chevron USA, Inc.
v. Natural Resources Defense Council , Inc. (1984), and Auer v. Robbins (1997). Because of these
decisions, federal courts have increasingly deferred to agency interpretation, both
of their governing statutes and their own regulations. On its face, this may seem like an
Court decided to give deference to its own interpretation. Prior to Burwell,

understandable position for a court to take. Agencies, after all, are experts in a particular field and have technical expertise that

In practice, however, excessive deference has fundamentally

changed how federal agencies regulate and how Congress writes law this is a
tragic deviance from the constitutional structure of our three branches of
government. Instead of simply carrying out the directives of Congress, agencies
now look for ambiguities in the law knowing full well that courts will defer to their
interpretation. Consider EPA v. EME Homer City Generation , a case decided by the Supreme Court
last year. Congress, under the Clean Air Act, required states to develop plans to keep polluters
within their states from sending pollution downwind to other states. Not finding any state
plans satisfactory, the EPA simply ignored the statutory directive for states to create
their own plans and issued the Transport Rule. This rule imposed a plan on 27 upwind
states disproportionate to the actual pollution each state emitted, causing those
states to shoulder more than their fair share of the burden. Citing Chevron
deference, the Court upheld the EPAs rule. The majority claimed that the EPA was not required to give
courts often find difficult to scrutinize.

states a second opportunity to create their own plan despite a completely new regulatory requirement, nor was the EPA required to
assign a burden in proportion to each states pollutant levels.

The agency in essence wrote a new section

of the law, and the courts allowed it to. Sadly, this is just one of many examples of
agencies overreaching under the assumption that judicial deference will uphold
their regulations, leading to costly and time-consuming litigation. When agencies choose to expand laws written by
Congress to pursue their own agenda, knowing that the courts will likely not check their power, judicial deference
becomes little more than a blank check for agencies to exercise legislative and
judicial authority. Such deference diminishes We the People to They the Regulators. It also makes the
Constitution irrelevant and the voice of the people affected by the regulations
ignored. Relieving the extraordinary regulatory burden on the American people begins by fixing this constitutional imbalance by
reconsidering the proper degree of deference that courts should afford agency decisions. It also requires Congress to clearly state in
each statute that it is their intent that agencies and the courts not expand the text beyond its natural reading. Finally, the courts
have an obligation to restrain in a manner prescribed by Congress the agencies from writing new law from their desk.
Lawmaking may be slow, but we have checks and balances for a reason. While what the Court did in Burwell is a step away from
Chevron, its a step in the wrong direction. The courts should not grant blanket deference to agencies, but neither should courts
substitute their own opinion for that of Congress. When the law is ambiguous or silent on an issue, it is the responsibility of Congress
and Congress alone to write a clearer and more complete statute.

High false alert rates mean drug dogs authorize searches that
violate the Fourth Amendment. This is de facto an executive
overreach of the judicial branch.
Sullum, 13. (Jacob Sullum. Sullum is the author of books acclaimed by the Wall
Street Journal, The New York Times, and the Washington Post. Sullum is the author
of two critically acclaimed books: Saying Yes: In Defense of Drug
Use (Tarcher/Penguin, 2004) and For Your Own Good: The Anti-Smoking Crusade and
the Tyranny of Public Health (Free Press, 1998). Saying Yes has been praised by both
sides of the political spectrum. National Review called it "a highly effective
debunking," and Mother Jones described it as "a healthy dose of sober talk in a
debate dominated by yelping dopes."For Your Own Good also was widely praised by
reviewers, who called it "compelling" (The Wall Street Journal), "meticulously logical"
(The New York Times), and a "cogent and thorough...must-read" (The Washington
Post). "This Dog Can Send You to Jail." Reason. 1/31/13. Web. Accessed: 8-8-2015.
Robert J. Burns, a 55-year-old retired nurse who lives in St. Louis, was returning from
a trip to the West Coast last October when his white Nissan pickup truck was pulled
over on Interstate 40 near Amarillo. Burns was carrying a 12-foot aluminum fishing
boat on top of the truck, and he had been struggling against high winds that kept
pushing him toward the shoulder. The sheriffs deputy who stopped him thought he
might be drunk. He asked me to step out and come back to his car, Burns says,
and thats when I noticed the dog in the back seat, a yellowish Lab. I explained
that I hadnt been drinking and my getting on the shoulder of the road was strictly
from the wind. He said that he was going to write me a warning, and I said, OK,
thats fine. He asked me if I had any drugs in the car. I said, No, sir, I dont do
drugs, and I dont associate with people who do. He asked me would I mind if he
searched my vehicle, and I said, Well, yes, I would mind if you searched my
vehicle. But thanks to the U.S. Supreme Court, the deputy did not have to take no
for an answer. In the 2005 case Illinois v. Caballes, the Court declared that the use
of a well-trained narcotics-detection dogduring a lawful traffic stop generally does
not implicate legitimate privacy interests. So the deputy was free to walk his dog
around Burns truck. He got out with this dog and went around the car, two or three

times, Burns says. He came back and said the dog had passively alerted on my
vehicle. Burns, who is familiar with drug-detecting dogs from his work as an M.P. at
Edwards Air Force Base in the 1970s, was puzzled. Properly trained police dogs are
supposed to indicate the presence of drugs with a clear, objectively verifiable
signal, such as sitting down in front of an odors source or scratching at it. Yet the
dog never sat down, the dog never scratched, the dog never did anything that
would indicate to me that it thought there was something in there. The deputy and
another officer who arrived during the stop nevertheless went through Burns truck
for half an hour or so, reaching up into the boat, perusing his cargo, looking under
the seats and the hood, examining the gas tank and the undercarriage. They found
no trace of drugs, although they did come across the loaded pistol that Burns
mentioned to them once it was clear they planned to search the truck. They were
cool with the gun, Burns says. If it had been California, God knows what would
have happened. He was so relieved that he barely minded the delay and
inconvenience, which stretched a brief traffic stop into more than an hour. Im not
a lawyer, and Im not a super-libertarian, Burns says. Once I realized that the
pistol was not going to be an issue, man, they could have spent all day going over
that car and under that car. My only concern was that one of the guys might have
slipped something in to cover up for the fact that they didnt find anything. Thats
one way of looking at it. But even if you are neither a lawyer nor a super-libertarian,
you might wonder 1) how often this sort of thing happens, 2) how it came to be that
police can get permission from a dog to rifle an innocent mans belongings, and 3)
whether that state of affairs is consistent with the Fourth Amendments guarantee
against unreasonable searches and seizures. The answers, in brief, are 1) fruitless
searches based on dog alerts happen a lot more often than commonly believed, 2)
dogs acquired this authority with the blessing of credulous courts mesmerized by
their superhuman olfactory talents, and 3) this dog license is hard to square with
the Fourth Amendment, unless it is reasonable to trust every officers
unsubstantiated claim about how an animal of undetermined reliability
reacted to a person, a suitcase, a car, or a house. All of these issues come together
in two cases the U.S. Supreme Court heard a few weeks after Bob Burns was pulled
over. Florida v. Harris raises the question of how a judge knows that a dogs alert is
reliable enough to justify a search. Florida v. Jardines asks whether police need a
warrant to use a drug-sniffing dog at the doorstep of a home. These cases, which
will be decided by this summer, give the Supreme Court an opportunity to
reconsider its heretofore unshaken faith in dogs, or at least limit the damage caused
by the amazing canine ability to transform hunches into probable cause. A Creature
of Legal Fiction The foundational text of the courts canine cult is [in] U.S. v. Place,
a 1983 decision involving an airport search that found a kilogram of cocaine in a
suitcase to which a dog had alerted. The Supreme Court unanimously concluded
that the Drug Enforcement Administration (DEA) violated the Fourth Amendment by
keeping the bag for 90 minutes before presenting it to a dog. But instead of
stopping there, Justice Sandra Day OConnor, in a majority opinion joined by five of
her colleagues, gratuitously ventured into an issue that had not been addressed by
the parties to the case and did not need to be resolved for the Court to decide
whether the seizure and search were legal. OConnor opined that a canine sniff by
a well-trained narcotics detection dogdiscloses only the presence or absence of

narcotics and does not expose noncontraband items that otherwise would remain
hidden from public view. Because of this specificity, OConnor concluded,
exposure of respondents luggage, which was located in a public place, to a trained
caninedid not constitute a search within the meaning of the Fourth Amendment.
Two decades later, when the Court extended this principle to cars in Caballes,
dissenting Justice David Souter noted that OConnors conclusion rests not only
upon the limited nature of the intrusion, but on a further premise that experience
has shown to be untenable, the assumption that trained sniffing dogs do not err. In
reality, Souter said, the infallible dogis a creature of legal fiction. Souter cited
examples of dogs accepted as reliable by courts that had error rates of up to 38
percent. He added that dogs in artificial testing situations return false positives
anywhere from 12.5 to 60 percent of the time. If anything, Souter gave drugsniffing dogs too much credit. A 2011 Chicago Tribune analysis of data from
suburban police departments found that vehicle searches justified by a dogs alert
failed to turn up drugs or drug paraphernalia 56 percent of the time. In 1979 six
police dogs at two public schools in Highland, Indiana, alerted to 50 students, only
17 of whom possessed contraband (marijuana, drug paraphernalia, and cans of
beer), meaning the false positive rate was 66 percent. Looking at the performance
of an Illinois state police K-9 team during an 11-month period in 2007 and 2008,
Huffington Post reporter Radley Balko found that the dog sniffed 252 vehicles and
alerted 136 times, but 74 percent of the searches triggered by those alerts did not
find measurable amounts of illegal drugs. Similarly, a 2006 study by the New South
Wales Ombudsman in Australia, an independent agency analogous to the U.S.
Government Accountability Office, looked at more than 10,000 searches of people
triggered by dog alerts and discovered that 74 percent of them found no illegal
drugs. More-recent data from New South Wales indicate a n even higher error rate:
80 percent in 2011. Those numbers look almost respectable compared to the results
of a 1984 operation in which Florida state police stopped about 1,330 vehicles at
roadblocks and walked dogs around them. If one dog alerted, another was brought
in, and vehicles were searched only if both dogs indicated the presence of illegal
drugs. That happened 28 times, but those searches yielded just one drug arrest. In
other words, even when two dogs both signaled the presence of drugs, they were
wrong 96 percent of the time. What is going on when dogs alert and no drugs are
found? Police and prosecutors usually claim these are not really false alarms
because the dog must have detected otherwise imperceptible drug traces left on
clothing, cars, or personal possessions. Its a convenient excuse, says Lawrence
Myers, a veterinarian and neurophysiologist at Auburn University who is an expert
on dogs olfactory capabilities. While dogs can indeed smell traces of drugs that are
no longer visibly present, he says, no one knows how big that reality is. When
police use drug residue as an all-purpose explanation for what appear to be
erroneous alerts, Myers says, the first term that comes to mind involves a male
bovine and the ingestion of grass. Consider how Christopher Jbara, a U.S. Border
Patrol agent, explained an unsuccessful dog-triggered search observed by a Tucson
Citizen reporter in 2008. He said the car had most likely been contaminated on one
side of the border or the other and it was likely the driver was not aware, the
Citizen reported. He said the cars windshield had been washed by a window
washer on the street before crossing the border, and the water used to clean it

could have been contaminated with bong water. New South Wales Police Inspector
Chris Condon tells a somewhat more plausible story. In response to the 2011
numbers indicating that his departments dogs were wrong four times as often as
they were right, he told The Sydney Morning Herald that 80 per cent of indications
by the dogs result in either drugs being located or the person admitting recent
contact with illegal drugs. The implication is that in most cases where people were
searched and had no drugs, they had recently smoked marijuana (by far the most
common drug found in successful searches) or been around pot smokers, which is
why they smelled suspicious to the police dogs. But that supposition is impossible to
confirm, and it is not even clear what Condon means by recent contact. More to
the point, the likelihood of actually finding evidence of a crime is the relevant
consideration (in Australia as well as the United States) in determining when police
may search someone, meaning a dogs alert can justify a search only if it indicates
that drugs are currently present. They Can Say Whatever They Want to Say The
issue of what counts as a false alarm is central to Florida v. Harris. The defendant,
Clayton Harris, was pulled over twice in 2006 by Officer William Wheetley of the
Liberty County Sheriffs Office, once for an expired tag and once for a
malfunctioning brake light. On both occasions, after Harris declined to let Wheetley
search his pickup truck, the officer walked a German shepherd named Aldo around
the vehicle. On both occasions, Wheetley reported, Aldo alerted by getting excited
and sitting down in front of the drivers side door handle. And on both occasions,
Wheetley searched the truck without finding any substance that Aldo was trained to
detect. But during one of the stops, Wheetley found 200 pseudoephedrine tablets,
along with other chemicals and supplies used to make methamphetamine, which
led to Harris arrest. Harris pleaded guilty to possession of a listed chemical with the
intent to unlawfully manufacture a controlled substance, a second-degree felony
punishable by up to 15 years in prison, but reserved the right to challenge the
legality of Wheetleys search. Since Wheetley did not find any illegal drugs in the
truck and Aldo is not trained to detect pseudoephedrine, what are we to make of
the alert Wheetley reported? He speculated that Aldo reacted to traces of meth left
by Harris hand, which might be true. Then again, Aldo might have smelled drug
residue left by someone elseperhaps, as Harris lawyer suggested, an addict
looking for unlocked vehicles with stuff to steal. The dogs alert does not tell us who
left the odor, or even which drug it was. Police dogs generally are trained to detect
several substances, and they alert the same way to all of them. Russ Jones, who
worked as a K-9 officer and narcotics detective in San Jose, California, for 10 years
and is now a member of Law Enforcement Against Prohibition, notes that the drugresidue excuse is a double-edged sword for police, because it undermines the case
for using dog alerts to justify searches. Youre telling me that my car can be
searched because the guy who changed the tires at the tire shop smokes marijuana,
and his hands tightened up the lug nuts and put the hub cap back on? Jones says.
Suppose the UPS guy uses amphetamine or cocaine, and he drops off a book that I
ordered from If a dog smells it, that gives you the right to search my
home? Traces of drugs on the outside of Harris truck are not the only possible
explanation for the alert Wheetley reported. Perhaps Wheetley, who said Harris
seemed nervous and restless, was so sure the guy was up to no good that he
misinterpreted Aldos behavior. If a dog handler wants to see the alert, says Jones,

he sees it. Alternatively, Jones says, because [the handler] feels the guy is guilty,
he just says the dog alerted and uses that as a pretext to search. Myers recalls a
case on which he worked as a defense consultant where an officer claimed a dog
alerted as he walked it around a suspects car. In the dash-cam video of the stop,
the dog was not visible, but the officer was. When I had him questioned about how
long it took the dog to alert, he said a few seconds, Myers says. So there should
have been at least a two-second pause in front of the car. Nope. There was no
pause. Jeff Weiner, a prominent Florida defense attorney who frequently deals with
drug-sniffing dogs, says he commonly sees videos in which someone will stand in
front so you cant see the dog, and then youll hear them say, Oh, the dog just
alerted. And then theyll step away. Weiner adds that many police departments
have stopped recording K-9 teams at work because they realized that the dogs
dont alert when the cops say they alert. Without video, he says, they can say
whatever they want to say, and theres no way to challenge it. Assuming Aldo
really did alert to Harris truck, he might have been reacting to Wheetleys
suspicions. If someone is acting quite twitchy and nervous, says Myers, that
evokes suspicion on the part of the handler, which evokes certain behaviors that
may cause the dog to alert.Ive done frame-by-frame analysis of video tapes, and
its interesting when the handler stops before the dog does. You think it might have
been a cuenot necessarily intentional. A 2011 study led by the University of
California at Davis neurologist Lisa Lit, reported in the journal Animal Cognition,
shows how powerful a handlers cuing of his dog can be. Lit and her colleagues had
18 handlers walk their police dogs through four rooms where they were told drug or
explosive scents might be hidden but where in fact there were no target substances
to be found. Each team went through each room twice, for a total of 144 sweeps,
and generated 225 false alerts. The alerts occurred most frequently near markers
that the handlers were told indicated the presence of scents; they were even more
likely at those spots than at unmarked locations where the researchers had hidden
Slim Jims and new tennis balls as distractions. Human more than dog influences
affected alert locations, Lit and her colleagues concluded. This confirms that
handler beliefs affect outcomes of scent detection dog deployments. Searching for
Ham Sandwiches A few of the handlers in the Lit study admitted they had
intentionally pointed their dogs to the marked locations. But for the most part they
seem to have communicated their expectations subconsciously, as observers did
with Clever Hans, the famous German horse who supposedly could answer
arithmetic questions by tapping his hoof. Although it has been more than a century
since the psychologist Oskar Pfungst demonstrated that Clever Hans was reacting to
the body language of his trainer and audience, the lessons of that episode do not
seem to have penetrated most police departments. Myers and Jones say dogs
should be tested in double-blind situations, where neither the handler nor
the observer verifying alerts knows whether or where drugs have been
hidden. But such tests are the exception rather than the rule. In weekly
maintenance training, Myers says, the handler likewise should not know where the
drugs are. But typically if a cop says, I train the dog every week, hes hiding
things and then going around and finding the things hes hidden. Putting something
out, you as the handler, then taking the dog through, you are going to seriously
skew the training; youre going to cue. You cant help it; you know exactly where the

damned thing is. Even when a handler[s] does not know exactly where the drugs
are, his behavior can encourage the dog to alert regardless of what the animal
actually smells. Jones says bad handling practices he commonly sees as a
consultant include excessive verbal encouragement (Go find it, boy!) and giving
rewards (praise, toys, dog treats) for alerts whether or not they are accurate. In a
2011 traffic stop that resulted in a fruitless car search and provoked a lawsuit,
Collinsville, Illinois, police officer Michael Reichert walked his German shepherd,
Macho, around a car and claimed he alerted in the front. Neither Reichert nor the
dog can be seen on the dash-cam video at that point, but Reichert can be heard
repeatedly urging Macho on and praising him lavishly. Dogs that are rewarded for
unconfirmed alerts may begin responding to the wrong stimuli. A dog might just be
interested in something, which could be seen as a kind of alert by the handler,
says Myers, so he rewards him for it. And pretty soon hes going to be searching for
ham sandwiches. As that example suggests, distracting smells, such as the tennis
balls and Slim Jims in the Lit study, also contribute to false alerts. A 13-year-old girl
who was strip-searched as a result of a mistaken dog alert during a 1979 inspection
of her junior high school in Highland, Indiana, apparently attracted the animals
attention because she had been playing earlier that day with her own dog, which
was in heat. The Sydney Morning Herald interviewed a college student who was
searched at a train station after a police dog sat down next to him; the cops found a
package of dog treats in his pocket. Bob Burns remembers an incident from his
years as an Air Force M.P. when a dog alerted to a locker that contained not drugs
but a wastebasket with a tuna can at the bottom that an officer had hidden to avoid
having to clean it for a room inspection. The dog was just hungry, Burns says.
There was a lot of embarrassment all around. Sometimes the right smell comes
from the wrong thing. Many dogs trained to detect cocaine actually react to methyl
benzoate, a volatile byproduct of black-market cocaine that is also an ingredient in
perfume, solvents, and insecticide. A girl whose purse was searched due to a dog
alert during a 1978 sweep of her high school in Goose Creek, South Carolina, turned
out to be carrying a small bottle of perfume. Similarly, acetic acid, which is what
dogs smell when they smell heroin, is found in vinegar, various food products, and
some kinds of glue; the same odor can be emitted by prescription drugs when they
are exposed to air. Piperonal, a smell that dogs associate with MDMA, is used in
artificial flavors, perfume, and mosquito repellant. Dogs also may have trouble
distinguishing the smell of marijuana from the odors of fir and juniper trees. Given
all these potential sources of error, how does a judge know when a dogs
alert is reliable enough to justify a search? In Harris case, the Florida Supreme
Court concluded that the search of his truck was illegal because the evidence
presented to demonstrate Aldos reliability was inadequate. The court wanted more
information about Aldos training and certificationan important issue because
Florida, like most states, has no uniform standards for drug-detecting dogs.
The court also wanted more details about Aldos performance on tests (really
good, according to Wheetley). And it wanted to know his record in the field, a
question Wheetley could not answer because he does not keep track of erroneous
alerts. After all, who would be interested in such information? A Search Warrant on
a Leash Challenging the reversal of Harris conviction before the U.S. Supreme
Court, the state of Florida (joined by the Obama administration) argued, in effect,

that judges should automatically accept a police dog as reliable. The handlers
themselves are going to be in the best position to know the dogs and evaluate their
reliability, Gregory Garre, the lawyer representing Florida, told the Court in
October, and they have a strong incentive to ensure the dogs are reliable. So
according to Garre, if a cop trying to justify a search vouches for the reliability of a
dog whose alert supposedly justifies that search, there is no reason to question him.
Garre argued that the most important thing in judging a dogs reliability is
successful completion of proficiency testing. How does a judge know a dog has
successfully completed proficiency testing? Because the police say so. When
training is done by actual police departments, Garre said, this Court ordinarily
would presume regularity. And what constitutes regularity when there are no
uniform standards? We would ask whether or not the dog successfully completed
training by a bona fide organization, Garre said. We dont think its an appropriate
role for the court to delve into the contours of the training.You would have to
accept iton its face. And why wouldnt you? After all, Justice Antonin Scalia
observed, if the reasonableness of a search depended upon some evidence given
by a medical doctor, the court would not go back and examine how well that doctor
was trained at Harvard Medical School. Then again, Harvard Medical School, unlike
a police departments dog training program, is accredited, based on uniform
national criteria, by the American Association of Medical Colleges, and its graduates
must satisfy objective, transparent tests to be licensed and certified in their
specialties. Furthermore, unlike police dogs, doctors can talk, which means they can
testify and be cross-examined regarding their qualifications and the reasons for
their conclusions. Scalia seemed genuinely flabbergasted not only by the idea that a
dog might be inadequately trained but also by the suggestion that police might
exaggerate a dogs reliability. Why would a police department want to use an
incompetent dog? he asked Glen Gifford, the assistant public defender
representing Harris. What incentive is there for a police department? Gifford
patiently explained that the incentive is to acquire probable cause to search when
it wouldnt otherwise be available. It should be obvious why a police officer might
value a dog that alerts promiscuously, giving him license to search anyone he
deems suspicious. Its a search warrant on a leash, Myers says. Its such an
enormous back-door entry into search and seizure without a warrant. A brief filed
by the Institute for Justice in Harris highlights another motive: If a dogs alert
justifies a search, it can also justify seizure of property allegedly tainted by illegal
drugs. There are countless examples of police seizing large sums of cash based on
nothing more than a positive dog alert , the brief notes, even though contamination
of currency with cocaine and other drugs appears to be pervasive. Since police
departments typically share the proceeds from civil forfeiture, they have a direct
financial interest in dogs that facilitate it. Yet few of the justices seemed inclined to
elaborate on the distinction between a well-trained narcotics detection dog,
entrusted with the power to authorize searches and seizures, and any old dog
grabbed from the pound by a police department and presented as such. Jeff Weiner,
the Florida defense attorney, says, I only hope the Court will realize how incredibly
nave they have been and how they have given law enforcement a green light to do
away with the Fourth Amendment merely by uttering the magic words, My dog
alerted. Judges around the country commonly accept a dogs alert, by itself, as

sufficient basis for a search, but the Supreme Court has never explicitly said it is,
although passing comments in a couple of decisions can be read that way.
Furthermore, the Court has always resisted precisely defining probable cause, the
standard for issuing a warrant (or for upholding a car search, which can be
conducted without a warrant but is supposed to meet the same test). Probable
cause, the Court has said, means there is a fair probability that evidence of a
crime will be discovered. It is not clear how reliable a dog must be to satisfy that
standard. A 4 percent chance of finding contraband based on a dogs alert, as in the
Florida roadblock operation, presumably would be too low. What about a 20 percent
chance, as in the latest data from New South Wales, or a 44 percent chance, as in
the Chicago Tribune study? Who determines when a dogs reliability in alerting has
reached a critical failure number? Justice Sonia Sotomayor asked during the oral
arguments in Harris. Im deeply troubled by a dog that [accurately] alerts only 12
percent of the time.That seems like less than probability. Gifford observed that
in the lower courts, once you get below 50 percent, probable cause is much less
likely to be found. The 2006 Australian study found that the accuracy of 17 police
dogs used to sniff out drugs on people ranged from 7 percent to 56 percent. This
wide variation underlines the importance of assessing the ability of each dog-andhandler team on an individual basis, rather than accepting blanket assurances that
all dogs and handlers have been properly trained. Frankys Nose Is Not Technology
While the Supreme Court seemed reluctant to require greater skepticism of such
claims, the justices were more receptive to concerns about using dogs to identify
homes containing drugs. In fact, Scalia, the justice who was most clearly hostile to
questions about police dogs professional credentials in Florida v. Harris, was the
one who was most indignant about bringing them to peoples doorsteps without a
warrant in Florida v. Jardines. On the morning of December 6, 2006, based on an
unverified Crime Stoppers tip received a month earlier, Miami-Dade Police
Detectives William Pedraja and Douglas Bartlet approached the Princeton, Florida,
home of Joelis Jardines, where the tipster had said marijuana was growing. They
were accompanied by several DEA agents and Franky, a chocolate Labrador
retriever. Bartlet brought Franky up to the entrance of the house, where he sniffed
around for a minute or two before sitting down at the front door. After Bartlet
announced that Franky had alerted to the house, Pedraja approached the front door
and claimed he could smell marijuana, although Bartlet said he did not. Based on
Frankys alert, Pedraja obtained a search warrant that police executed later that
day, finding 179 marijuana plants, growing equipment, and Jardines escaping out
the back door. Charged with trafficking in more than 25 pounds of cannabis, a firstdegree felony punishable by up to 30 years in prison, Jardines successfully argued
that the evidence against him should be suppressed. The Florida Supreme Court
concluded that the search of Jardines home was illegal because Frankys inspection
of the area near the front door was itself an illegal search. Since the U.S. Supreme
Court has said that using a dog to check luggage at the airport or a car during a
traffic stop does not count as a search, you might think that Frankys sniffing at
Jardines doorstep would not qualify as a search either. But during oral arguments
the justices seemed inclined to agree that homes are different. Jardines lawyer,
Howard Blumberg, argued that when a police officer goes up to the front door with
a narcotics detection dog he has physically trespassed, because there is no

consent to do that, onto a constitutionally protected area, the curtilage of the

homethat is, the area immediately surrounding it. That argument appeared to be
crafted with Scalia in mind. In U.S. v. Jones, the 2012 decision in which the Court
ruled that tracking a vehicle by attaching a GPS device to it requires a warrant,
Scalias majority opinion emphasized the physical trespass required to install the
device. If youfollow the test set forth in Jones and apply it to what happened
here, Blumberg said, it is a trespass. Scalia signaled that he was receptive to this
approach even before Blumberg got up to speak. Police are entitled to use
binoculars to look into [a] house if the residents leave the blinds open, he told
Gregory Garre, who represented Florida in this case as well as Harris, but theyre
not entitled to go onto the curtilage of the house, inside the gate, and use the
binoculars from that vantage point.Why isnt it the same thing with the dog?It
seems to me crucial that this officer went onto the portion of the houseas to which
there is privacy and used a means of discerning what was in the house that should
not have been available in that space.Police officers can come there to knock on
the door[but] when the purpose of the officers going there is to conduct a search,
its not permittedHes going there to search, and he shouldnt be on the curtilage
to search. Scalia also wrote the majority opinion in Kyllo v. U.S., the 2001 case in
which the Court held that using a thermal imager to measure the heat radiating
from a home (as evidence of grow lamps) requires a warrant. Justice Ruth Bader
Ginsburg read Garre a passage from that decision, which she suggested applies to
drug-sniffing dogs as well: We think that obtaining by sense-enhancing technology
any information regarding the interior of the home that could not otherwise have
been obtained without physical intrusion into a constitutionally protected area
constitutes a search, at least where, as here, the technology in question is not in
general public use. Garre responded by arguing that Frankys nose is not
technology, since he is merely availing himself of God-given senses. But in its
natural state, Frankys nose does not tell police when molecules of certain chemical
compounds are floating through the air; that requires human intervention, based on
technical knowledge, aimed at turning a descendant of wolves into a law
enforcement tool. The dog per se is not a technology, says Myers, but the dog is
part of a technology that has been applied to a particular use. The main point,
when it comes to expectations of privacy, is that Franky, like a thermal imager,
enables police to find evidence they could not detect with their own unaided senses.
They can thereby obtain information about what is happening inside a home that
they otherwise could get only by entering it. Dogs Are Not Magic But dogs do not
perform this function inerrantly. The notion that a dog sniff is not a search and the
notion that a dog sniff justifies a search are both based on overblown notions of
canine capabilities, a fact that makes the implications of those ideas all the more
troubling. A cop already has the authority to stop cars for minor (and possibly
imagined or invented) traffic violations that people routinely commit. If you give him
a dog he can deploy during any stop to justify a search, a dog whose alerts may be
imagined, invented, or triggered by deliberate or subconscious cues, he now has
the ability to search cars at will. In Caballes, the decision that gave police this
ability, Justice Souter warned that an uncritical adherence to Place [which held that
a sniff is not a search] would render the Fourth Amendment indifferent to
suspicionless and indiscriminate sweeps of cars in parking garages and

pedestrians on sidewalks. During the oral arguments in Harris and Jardines,

Justices Sotomayor and Ginsburg likewise worried aloud about police taking dogs
from door to door in an apartment building or from house to house on a street.
Garre, Floridas lawyer, argued that limited resources and community hostility
would discourage such operations. But they are already happening. In 2011, for
instance, The Roanoke Times reported that police in Pulaski, Virginia, had been
using dogs to randomly search for drugs in apartment complexes for a couple of
years. Last spring the Fargo Housing Authority in North Dakota announced plans
for similar sweeps. Students as young as 6 have been randomly subjected to dog
sniffs at public schools throughout the country for decades. Such olfactory dragnets
would be disturbing enough with dogs that are 100 percent accurate. But with
actual dogs, which could be wrong most of the time or even nine times out of 10,
they are little more than pretexts for police to search wherever and whenever they
please. Dogs can be a very good and useful tool, Myers says. But people have
gotten both lazy and superstitious about that use. Dogs are not magic.

Unchecked executive discretion risks escalation in times of

conflict-it encourages pre-emption and rash decision making
Holmes, 2009 Holmes, Stephen. "The Brennan Center Jorde Symposium on
Constitutional Law: In Case of Emergency: Misunderstanding Tradeoffs in the War on
Terror." California Law Review, Inc (2009): n. pag. Web. 28 June 2015
When faced with a serious threat to national security, the most aggressive response
will not always be the most effective response. In a bullfight, the bull loses the contest not
because it is insufficiently aggressive, but rather because the matador, through provocative gestures, uses the
wounded beast's aggressive impulses and impaired vision against it, repeatedly luring it into futilely and

Any system that defends unmonitored

executive discretion exposes itself to the danger that the executive
officials who happen to be in power at the time will feel that inaction is
psychologically intolerable or, by sheer bad luck, will have a bias toward
aggressive action that, while psychologically satisfying (not to mention electorally advantageous), in
no way corresponds to the requirements of the situation. n109 [*346] Because those who
exhaustingly charging a phantom target. n108

attacked the United States violated an absolute international ban on terrorism, American authorities may have been
tempted to avenge the injury - an eye for an eye - by violating an equally absolute international ban on torture.
After suffering a severe blow inflicted by an avowed enemy, the surviving victims of an attack are often obsessed
with reestablishing an image of themselves as active rather than passive. They have to "do something" without
giving too much thought to the specific consequences of the actions they undertake. This suggests, once again,
that cruelly coercive interrogation may have been embraced less for the tactical information it promised to disgorge
than for its independent psychological appeal. All of its practical consequences were not necessarily coolly
considered. Such speculations are admittedly impossible to prove or disprove. But they are plausible enough to
justify skepticism about the claim that harsh interrogation was embraced solely for the pragmatic reason alleged,
namely to extract intelligence to prevent a follow-up nuclear sneak attack against the United States. Electoral, as
opposed to national-security, considerations may also have contributed to the embrace of interrogation techniques

The lack of genuine metrics of success in the war

on terror makes it inherently difficult to prove to voters that their government has
undertaken the most effective course of action. Such politically unsustainable
uncertainty may, as mentioned, pressure policymakers into seeking or fabricating
pseudo-metrics. This is especially true when American policymakers could not demonstrate that their actions
that departed sharply from preexisting rules.

are eliminating more terrorists than they are producing. But the Bush administration and its supporters could
always point out that Amnesty International, Human Rights First, the ACLU, and other liberal-humanitarian
organizations were screaming about torture. These organizations' vehement expressions of outrage strongly [*347]

suggested that the Bush administration was going to extreme lengths - pulling out all the stops - to protect the
country. The pernicious idea of a liberty-security tradeoff, once again, lent a spurious plausibility to the mind-game
being played.

Advantage 2: Police Militarization

Law enforcement has become increasingly militarized.
Wedler, 7/10. (Carey Wedler. "New SWAT Documents Detail the Brutal Reality of
U.S. Police Militarization." Global Research. 7-10-2015 Web. Accessed: 8-8-2015.
Massachusetts SWAT teams made headlines last year when they refused to grant a
public information request to the ACLU, claiming they were private companies
and, therefore, exempt from such inquiry. The ACLU subsequently sued, and last
month, it received access to the documents it requested. The documents confirm
that broad overreach, unnecessary and overblown tactics, and an
eagerness to attack are increasingly present in law enforcement establishments
around the country. The NEMLEC, or Northeastern Massachusetts Law Enforcement
Council, encompasses multiple SWAT teams across that region of the state.
According to the documents it tried to suppress, NEMLEC conducted 79 SWAT raids
from August 2012 to June 2014. Though the NEMLEC (along with SWAT teams
around the country) claims SWAT teams are only used for active shooters, armed
barricaded subjects, hostage takers, and terrorists, the data reveals a different
story. Though the NEMLEC touts its operations as reserved for critical situations,
only one of the 79 incidents actually involved a terrorist attack: SWAT teams were
deployed to assist in the aftermath of the 2013 Boston Marathon bombing. In that
same 2012 to 2014 time period, there were no active shooter situations, no
hostage situations, and only 10 cases of barricaded subjects. According to The
Intercept, half of the remaining cases were for everyday policing activities, including
executing warrants, dealing with expected rioting after a 2013 Red Sox World
Series game, and providing security for a Dalai Lama lecture. That leaves 37 of 79
raids that were either drug-related, initiated by local police, or responses to suicidal
individuals. The use of SWAT teams for drug raids has been widely criticized as
superfluous and outside the duties of SWAT. Professor Pete Kraska of Eastern
Kentucky University, who specializes in police militarization [said], told The Intercept
that It is really significant to remember that SWAT teams prior to the 1980s drug
war were confined strictly to reactive, dangerous situations,But in our research
today we find that over 80 percent of the time police departments are using SWAT
teams for proactive cases. These deployments are generally targeted at low-level
drug dealers and usually theyre just doing it for collecting evidence not
necessarily to even arrest a well-known, armed, dangerous drug dealer. Of the 21
drug raids conducted, only 5 yielded actual contraband, according to the NEMLEC
reports. They averaged 36 officers and more than half were conducted in the middle
of the night, while 14 were granted judicial authorization for no knock entry
meaning SWAT agents were allowed to break the door open to enter. These methods
are exceptionally controversial and have resulted in countless cases of needless
violence, injury, and deathfor both subjects of raids and the officers themselves.
Further, other uses of SWAT teams are unwise at best and dangerous at worst.
Associate Professor of Criminology at Merrimack College, Tom Nolan, said, Its
certainly counter-productive to have a fully-armed militarized SWAT team respond to

potentially suicidal suspects who are looking for ways out like suicide-by-cop
situationsI dont know why you couldnt just have someone respond who knows
negotiation strategy techniques, without the tanks and the body armor. Nolan is
also a former lieutenant with the Boston Police Department. Additionally, while
SWAT teams often stress the extreme dangers of their jobs, of the 33 search or
arrest warrant raids conducted from 2012-2014, only four encountered firearms
calling into question the justification for such massive police operations. In one
case, a disabled man in a wheelchair was accused of shooting at a womans car
over a parking space dispute. A 28-person SWAT team was called to his home,
bringing along with it a Bearcat (armored vehicle) as well as tasers, long arms, a
shotgun, 40mm less-lethal rounds, shields and battering rams. When they were let
into the mans home by someone he knew, they found him struggling to get out of
bed and gave him the opportunity to get dressed and remove his catheter. The
ACLU report confirms past analyses that indicate police militarization and SWAT
teams are too heavily armed, too easily enabled, and all but exempt from

Civil asset forfeiture funds police militarization.

OHarrow and Tan, 14. (Robert O'Harrow Jr., Shelly Tan. "Asset seizures fuel
police spending." Washington Post. 10-11-2014 Web. Accessed: 8-7-2015.
Police agencies have used hundreds of millions of dollars taken from Americans
under federal civil forfeiture law in recent years to buy guns, armored cars and
electronic surveillance gear. They have also spent money on luxury vehicles,
travel and a clown named Sparkles. The details are contained in thousands of
annual reports submitted by local and state agencies to the Justice Departments
Equitable Sharing Program, an initiative that allows local and state police to keep up
to 80 percent of the assets they seize. The Washington Post obtained 43,000 of the
reports dating from 2008 through a Freedom of Information Act request. The
documents offer a sweeping look at how police departments and drug task forces
across the country are benefiting from laws that allow them to take cash and
property without proving a crime has occurred. The law was meant to decimate
drug organizations, but The Post found that it has been used as a routine source
of funding for law enforcement at every level. In tight budget periods, and even
in times of budget surpluses, [police] us[e]ing asset forfeiture dollars to purchase
equipment and training to stay current with the ever-changing trends in crime
fighting helps serve and protect the citizens, said Prince Georges County, Md.,
police spokeswoman Julie Parker. Brad Cates, a former director of asset forfeiture
programs at the Justice Department, said the spending identified by The Post
suggests police are using Equitable Sharing as a free floating slush fund. Cates,
who oversaw the program while at Justice from 1985 to 1989, said it has enabled
police to sidestep the traditional budget process, in which elected leaders create
law enforcement spending priorities. All of this is fundamentally at odds with the
U.S. Constitution, said Cates, who recently co-wrote an article calling for the
programs abolition on The Posts editorial page. All of this is at odds with the rights

that Americans have. Of the nearly $2.5 billion in spending reported in the forms,
81 percent came from cash and property seizures in which no indictment was filed,
according to an analysis by The Post. Owners must prove that their money or
property was acquired legally in order to get it back. The police purchases comprise
a rich mix of the practical and the high-tech, including an array of gear that has
helped some departments militarize their operations: Humvees, automatic
weapons, gas grenades, night-vision scopes and sniper gear. Many departments
acquired electronic surveillance equipment, including automated license-plate
readers and systems that track cellphones. The spending also included a $5 million
helicopter for Los Angeles police; a mobile command bus worth more than $1
million in Prince Georges County; an armored personnel carrier costing $227,000
in Douglasville, Ga., population 32,000; $5,300 worth of challenge coin medallions
in Brunswick County, N.C.; $4,600 for a Sheriffs Award Banquet by the Doa Ana
County (N.M.) Sheriffs Department; and a $637 coffee maker for the Randall County
Sheriffs Department in Amarillo, Tex. Sparkles the Clown was hired for $225 by
Chief Jeff Buck in Reminderville, Ohio, to improve community relations. But Buck
said the seizure money has been crucial to sustaining long-term investigations that
have put thousands of drug traffickers in prison. The money I spent on Sparkles the
Clown is a very, very minute portion of the forfeited money that I spend in fighting
the war on drugs, he told The Post. About 5,400 departments and drug task forces
have participated in the Equitable Sharing Program since 2008. Justice spokesman
Peter Carr said the program is an effective weapon to fight crime but should not be
considered an alternative funding source for state and local law enforcement. It
removes the tools of crime from criminal organizations, deprives wrongdoers of the
proceeds of their crimes, recovers property that may be used to compensate
victims, and deters crime, he said in a statement. Any funds received through the
equitable sharing program are meant to enhance and supplement, not supplant or
replace an agencys appropriated budget and resources. Money for gear, training A
local or state police agency can seize cash or property under federal law through
the Equitable Sharing Program when a federal agency such as the Drug
Enforcement Administration or Immigration and Customs Enforcement agrees to
adopt the seizure under federal law. Federal agencies generally are allowed to keep
20 percent or more of the seizure after an adoption. Your property is guilty until
you prove it innocent In the wake of Sept. 11, 2001, an aggressive brand of
policing called highway interdiction, which involves authorities seizing money and
property during traffic stops, has grown in popularity. Thousands of people not
charged with crimes are left fighting legal battles to regain their money. In
September, The Post reported that police across the country became more
aggressive in their use of federal civil asset forfeiture laws after the Sept. 11,
2001, terrorist attacks. Officials at Justice and the Department of Homeland Security
encouraged a technique known as highway interdiction to help in the fight against
drugs and terror. There have been 61,998 cash seizures on highways and elsewhere
since 9/11 without search warrants or indictments and processed through the
Equitable Sharing Program, according to an analysis of Justice data obtained by The
Post. Equitable Sharing participants must follow rules contained in a 50-page
Equitable Sharing guide that require the proceeds of seizures to be used by law
enforcement agencies for law enforcement purposes only. Permissible uses include

overtime pay, training, building construction and improvements and equipment

everything from file cabinets and fitness gear to automatic weapons,
surveillance systems and cars. They also can use proceeds to buy food and
drinks at conferences or during disaster operations. Police generally may not pay
ongoing salaries or otherwise support annual budgets. One exception allows for
departments to pay salaries of newly hired officers for one year or officers assigned
to a drug task force as a replacement so long as the replacement officer does not
engage in the seizure of assets or narcotics law enforcement as a principal duty.
The Justice Department has about 15 employees assigned to overseeing
compliance. Five employees review thousands of annual reports for discrepancies.
Justice employees also use analytical tools to search for spending patterns. Several
attorneys review all sharing requests for $1 million or more, Carr said, adding that
the locals also do their own audits. The annual reports from local and state police
are required to help promote public confidence in the program and to protect
against waste, fraud and abuse, the guidelines say. But the forms provide few
details about what is actually purchased, according to documents and interviews.
That is in part because the department leaves it up to local officials to decide
how to categorize their spending. There is little room to provide line-item detail.
Justices inspector generals office has conducted 25 audits on spending since 2008,
an average of four a year, examining more than $18 million in Equitable Sharing
spending, roughly three-quarters of 1 percent of the money spent during that time.
Justice has challenged millions of dollars in spending as unsupported or
unallowable. One audit examined about $3.4 million in Equitable Sharing funds that
the Oklahoma Highway Patrol spent from July 2009 to June 2012. The audit found
$1.9 million in unallowable and unsupported expenditures relating to salaries,
overtime pay, construction, fees paid to contractors and the use of two Ford F-150
pickup trucks by non-law enforcement personnel. Oklahoma authorities did not
return calls seeking comment. Auditors found the Mesa County, Colo., Sheriffs
Office paid thousands for projectors, scanner equipment and other items that were
not intended for law enforcement. They also paid for 20 lawyers in the Mesa County
prosecutors office to attend a conference at the Keystone ski resort. Auditors
questioned more than $78,000 in spending. The Mesa Sheriffs Office also did not
respond to calls from The Post. Trading cards and BMWs One task force used the
money for a subscription to High Times, a magazine for marijuana enthusiasts, at
$29.99 for a year. Several departments bought custom-made trading cards,
complete with photos and data about their officers. Some, including police in
Chelsea, Mass., share them with children in their communities. We have found that
this is a great way to build trust and foster long-lasting relationships with the youth
in our community who get to know officers on a first-name basis, said Chelsea
Police Chief Brian Kyes. Ten agencies have used the asset forfeiture funds to pay
their fees for the Defense Departments excess property initiative, better known as
the 1033 program, which enables local and state police to buy surplus militarygrade equipment at cut rates. The equipment includes automatic weapons, nightvision gear and clothing. Police in Sahuarita, Ariz., paid $4,300 to outfit a Humvee
obtained through the 1033 program. The New Bedford, Mass., Police Department in
2012 paid $2,119 for shipping costs for M-16s from the military. Dozens of sheriff
and police offices paid a total of more than $100,000 for keepsakes known as

challenge coins and lapel pins that they could share with one another and with
local residents. Scores of departments spent money on vehicles. Many of them were
typical police cruisers, but dozens were new and used sports and luxury cars,
including at least 15 Mercedes, a dozen Mustangs, a handful of BMWs and two
Corvettes. Others bought a variety of armored cars. Among them was the police
department in Douglasville, Ga., and the sheriffs office in Douglas County, Ga.,
which teamed up several years ago to buy an eight-ton, $227,000 BearCat (Ballistic
Engineered Armored Response Counter Attack Truck). Douglasville Deputy Chief
Gary E. Sparks said they have used the vehicle a few times in barricade situations.
But mostly it has been deployed for officer down and SWAT team exercises. Its
better to have it and not need it than need it and not have it, he said. Police in
Ferguson, Mo., also participate in Equitable Sharing. Since 2008, the department
reported using seizure proceeds to buy $18,000 in weapons and protective gear,
$71,000 in computers and communications gear, and about $43,000 in electronic
surveillance equipment. Some of the money was seized in partnerships with other
agencies, the annual reports show. Jurisdictions in the Washington region have used
the federal asset forfeiture program as well. Virginia State Police spent $33 million
on buildings and improvements and $11 million on computers and communications
gear. A state police spokeswoman said the funds came from money forfeited by
Purdue Frederick Company, the maker of OxyContin, to settle allegations that the
company played down the drugs addictive properties. The D.C. Metropolitan Police
Department was a leader in spending on informants and undercover drug
purchases, reporting about $3.3 million under that category. The department
declined a request to provide details. Prince Georges police spent $382,000 on
license-plate readers, $56,000 to paint two aging helicopters and an undisclosed
amount on a cell site simulator that can surreptitiously track cellphones. Parker,
the Prince Georges police spokeswoman, said the cellphone-tracking system is only
used under court order and that the department follows best practice policies
when spending forfeiture funds. Fairfax County police have spent $1.3 million on
weapons and protective gear, $561,000 on buildings and improvements and
$208,000 on electronic surveillance gear. The department declined to share details
about the spending. The Justice Department audited Fairfaxs spending in 2009 and
2010 and found the department had complied with the guidelines at that time. Our
financial stewardship of our Seized Account Funds is in compliance with all Federal
rules and laws, State rules and laws, County rules and laws, and we undergo audits
of these accounts by local and federal agencies, Col. Edwin C. Roessler Jr., the
Fairfax police chief, said in a statement. Additionally, we are subjected to internal
audit processes to review all requests for expenditures to ensure purchases are preapproved for compliance. Steady money for Ga. town The Post analysis found that
since 2008, more than 500 departments and drug task forces have reported
receiving the equivalent of 20 percent of their annual spending plans at least once.
Nearly 100 have done so in at least three of the past six years. The local
department that makes the most consistent use of Equitable Sharing funds per
capita is in Braselton, Ga., a town of about 8,000 people along Interstate 85
northeast of Atlanta. It has reported receiving the equivalent of 20 percent or more
of its budget from the Justice program in five of the past six years, documents show.
The Braselton Police Departments approach to Equitable Sharing offers insights

about the latitude the Justice Department gives local and state departments to
spend seized proceeds. It also underscores how little Equitable Sharing participants
are required to disclose to Justice each year. According to the towns annual reports,
police in Braselton have spent $79,000 on weapons and protective gear since 2008,
$139,000 on travel and training, $134,000 on salaries, $224,000 on computers and
communications gear, $875,000 on a category characterized on the Justice form as
other, and $905,000 on buildings and improvements. Their spending included
$806,000 for the purchase and modification of vehicles. In interviews, Assistant
Chief Lou Solis said that not all the reported spending went to items for the town
police. He said that Braselton uses its membership in the Equitable Sharing Program
to buy things for law enforcement partners, such as the Georgia State Patrol. The
federal guidelines allow the formation of task forces and the participants to decide
how to split the seizures among themselves, with Justices approval. Most of
Braseltons seizure proceeds came as a result of its participation in an Atlanta-based
DEA drug task force that relies heavily on local police. Braselton has one officer
assigned to the task force, Solis said. Braselton police recently paid $6,000 for
copiers for a nearby DEA office. The DEA says, Hey man, we need a copier, Solis
said. In some instances, town police help out on whisper stops after receiving
informal tips about smugglers from the DEA, he said. Some of the seizures are made
by the state patrol on nearby I-85, with help from Braselton officers, he said. State
police have sometimes partnered with Braselton on seizures in exchange for
pledges from town police to provide cars and equipment for the state police. For
example, Solis said, Braselton police recently bought 27 M-4 assault rifles, at about
$2,000 each, for state police with proceeds from Equitable Sharing. Braselton also
paid almost $8,000 in program funds for radar, lights and a tag reader for the state
police. The deals with Braselton enabled state police offices to receive the direct
benefit of seizure proceeds rather than have the money go through the state
patrols general fund, according to Solis and Capt. Kermit Stokes, a state patrol
official. Braselton police also used seizure proceeds to build an enclosed shooting
range used by local, state and federal authorities, including the Department of
Homeland Security, which also contributed funding, Solis said. Its legit. Were not
buying stuff just to buy stuff, he said, adding, We spend the money if we have
it. ... Its pretty cool. Were not only able to help us, were able to help others. In
every instance, planned purchases are submitted to town authorities before being
approved by Braseltons police chief, he said. Every request from Georgias state
patrol is accompanied by a formal letter, as required by the Justice program, he
said. Its checked and its double-checked, Solis said about the spending. Its
audited. When town police help out, other agencies sometimes promised to include
them in a DAG-71, the federal form that specifies how sharing should occur. So
many seizures have occurred in recent years, leading to so much sharing among
local, state and federal authorities, that it has become common for one officer to tell
another, Were going to DAG you in, Solis said. After The Post brought the
transactions to Justices attention, a department official told Braselton to stop using
Equitable Sharing funds to buy items for other departments, said Carr, the Justice
spokesman. Such transactions were not explicitly prohibited previously, but a new
interim guidance for the program was issued this summer, Carr said. Braselton
Police Department is now aware that this is not permitted and has assured the

department it will comply with the new guidance, Carr said. He added that other
departments had made similar transactions in recent years. Braselton Police Chief
Terry Esco said he was not aware of the interim guidance but is happy to comply.
We just never received the e-mail, he said.

Drug dogs are the primary method of obtaining probable cause

for civil asset forfeiture.
Wilson, 13. (Don Wilson. "The Institute for Justice." Institute for Justice.
10/20/2013. Web. Accessed: 8-9-2015.
A March 2010 report from the Institute for Justice, Policing for Profit: The Abuse of
Civil Asset Forfeiture, [22] shows just how widespread police profit from civil
forfeiture has become. The report, which grades all 50 states and the federal
government based on how well their asset forfeiture laws protect private property
rights, gives Texas a D- because the Texas statute does almost nothing to protect
innocent owners. The report demonstrates that forfeiture in Texas has skyrocketed
from $18,983,274 in total assets seized in 2001 to $49,179,252 in 2008. Over the
seven-year period studied by the report, Texas law enforcement agencies seized
$225,592,873nearly a quarter billion dollarsin currency and property under civil
forfeiture.[23] The report contains many findings about the breadth and depth of
the forfeiture abuse problem. Among them: Data show that Texas law enforcement
agencies rely heavily on forfeiture funds. In a random sample of 52 Texas law
enforcement agencies, plus the top 10 forfeiture-earning agencies, forfeiture
revenue amounts, on average, to 14 percent of agency budgets. For just the top 10
forfeiture money-makers, forfeiture dollars equal about 37 percent of agency
budgets. Even though drug use in America has remained relatively stable since the
early 1980s, drug arrests and the use of asset forfeiture have increased
considerably. Contrary to the claims of forfeiture advocates, data suggest that
forfeiture is not typically used to pursue high-level targets and major criminal
organizations. For instance, in Virginia, one-half of all currency forfeitures between
2001 and 2006 involved amounts less than $1,288. When state laws make forfeiture
harder and less profitable, law enforcement engages in more of what is known as
equitable sharingthat is, the process by which state and local law enforcement
agencies turn over forfeiture cases to the federal government, which then returns as
much as 90 percent of the value of what is forfeited back to state and local law
enforcement agencies. Equitable sharing is an easy way for law enforcement
agencies to circumvent state-imposed safeguards against the abuse of forfeiture.
Moreover, the researchers found that the profit motive and the innocent owner
burdentwo large problems with Texas laware significant factors in determining
how much equitable sharing an agency receives. An average-sized agency in a state
with a 100-percent profit motive will take in $30,000 more in equitable sharing than
an agency in a state with no profit motive. The difference for agencies in states
where owners are presumed innocent versus those where owners are presumed
guilty is $27,600. Drug sniffing dogs are notoriously unreliable when it comes to
cold hard cash. Famously, in 1985, the Miami Herald asked 11 prominent citizens to
supply a $20 bill for drug trace analysis. Ten of the 11 bills tested positive for drugs,

including ones provided by Janet Reno, Jeb Bush and a former Miss America. A 1987
study by the Drug Enforcement Agency found that one-third of all money at the
Federal Reserve Building in Chicago had traces of cocaine and recommended that
trace analysis of currency for general enforcement or seizure be stopped. Despite
their unreliability in the currency context, law enforcement agencies routinely use
drug sniffing dogs to prove that currency was involved in illegal drug

The impact is structural violence Police have increasingly

killed Americans because of their militarized structure.
Rucke, 13 (Katie, MintPress staff writer and investigative reporter, US Police
Have Killed Over 5,000 Civilians Since 9/11 11/6/13 MintPress News LAO)
Statistically speaking, Americans should be more fearful of the local cops than
terrorists. Though Americans commonly believe law enforcements role in society is to protect them and ensure peace and
stability within the community, the sad reality is that police departments are often more focused on enforcing laws, making arrests

As a result of this as well as an increase in militarized policing techniques,

Americans are eight times more likely to be killed by a police officer than
by a terrorist, estimates a Washingtons Blog report based on official statistical data. Though the U.S. government does
not have a database collecting information about the total number of police involved shootings each year, its estimated
that between 500 and 1,000 Americans are killed by police officers each year. Since
9/11, about 5,000 Americans have been killed by U.S. police officers, which is
almost equivalent to the number of U.S. soldiers who have been killed in the line of duty in Iraq.
As Mint Press News previously reported, each year there are thousands of claims of police misconduct. According to the
CATO Institutes National Police Misconduct Reporting Project, in 2010 there were 4,861 unique
reports of police misconduct involving 6,613 sworn officers and 6,826 alleged victims. A big element in the police
and issuing citations.

killings, Prysner says, is racism. A big majority of those killed are Latinos and Black people, while the police officers are mostly
White, he said. Its

a badge of honor to shoot gang members so [the police] go out and

shoot people who look like gang members , Prysner argued, giving the example of 34-year-old Rigoberto
Arceo, who was killed by police on May 11. You cannot have a police force that is investigating and
punishing itself, Prysner said, adding that taxpayer money should be invested into the community instead of given to
police to buy more guns, assault rifles and body armor.

The United States Federal Government should mandate that
police cannot use a drug dog to search without having
probable cause.

Drug dogs are very inaccurate.
Balko, 8/4. (Radley Balko. Radley Balko blogs about criminal justice, the drug war
and civil liberties for The Washington Post. He was previously a senior writer and
investigative reporter at the Huffington Post. He is the author of "Rise of the Warrior
Cop: The Militarization of America's Police Forces," and his work has been cited by
the U.S. Supreme Court and the Mississippi Supreme Court. He also writes about the
music and culture of Nashville, Tennessee, where he lives. A graduate of Indiana
University, Radley has also been a senior editor at Reason magazine, a policy
analyst at the Cato Institute and an opinion columnist for "Federal
appeals court: Drug dog thats barely more accurate than a coin flip is good
enough." Washington Post. 8/4/2015. Web. Accessed: 8-7-2015.
U.S. v. Bentley is
just the latest in a series of rulings in which the federal courts refuse to consider the
possibility that police departments may be manipulating the dogs to authorize
unlawful searches or at the very least that police agencies arent ensuring that
the dogs are being trained to minimize the possibility, even though that would be
easy to do. The problem with drug-sniffing dogs is not that dogs arent capable of
sniffing out drugs; its that weve bred into [them] domestic dogs a trait that trumps that
ability a desire to read us and to please us. If a drug dog isnt specifically trained to
compensate for this, it will merely read its handlers body language and confirm its
handlers suspicions about who is and isnt hiding drugs. This has been confirmed by tests of K9
units that have shown that controlled tests designed to fool handlers are much more
likely to trigger false alerts than controlled tests designed to fool the dogs. The fact that
mine-sniffing dogs tend to be more accurate than their drug-sniffing cousins further
illustrates the point handlers not only have fewer preconceptions about where mines
are located, but they also have an incredibly strong incentive for the dogs to be
accurate about finding them. But even here, the dog-handler bond can become problematic, which is why some detection
experts are turning to rats. The problem here is that invasive searches based on no more than a
government officials hunch is precisely what the Fourth Amendment is
supposed to guard against. Unfortunately, the way the U.S. Supreme Court has ruled on this issue not only
doesnt account for the problem, but also has given police agencies [have] a strong incentive to ensure
that drug dogs arent trained to act independently of their handlers suspicions. A
dog prone to false alerts means more searches, which means more opportunities to
find and seize cash and other lucre under asset forfeiture policies. In fact, a drug dogs
alert in and of itself is often cited as evidence of drug activity, even if no drugs are found ,
thus enabling police to seize cash, cars and other property from motorists. For example, Ive interviewed dog trainers who
have [said] told me that drug dogs can be trained to alert only when there are
measurable quantities of a drug to ignore so-called trace or remnant alerts that arent cause for
arrest. But these trainers say that police agencies dont want dogs trained to ignore remnant
odors, because any alert is an authorization for a more thorough search. In 2013, the
Supreme Court made things worse in Florida v. Harris. In that case, the court
unanimously ruled that mere certification of a drug dog was enough to establish a
The U.S. Court of Appeals for the Seventh Circuit issued a troubling ruling about drug dogs last week.

presumption that a drug dog is reliable, regardless of the reputation of the

certifying organization, regardless of whether that organization understands and
appreciates the importance of training dogs to ignore their handlers suspicions, and
regardless of the dogs performance in the real world. In U.S. v. Bentley, we see just
how damaging the Harris decision really was. Lex, the drug dog that searched Bentleys car , had a 93
percent alert rate. That is, when Lex was called to search a car, he alerted 93 percent of the time. He was
basically a probable cause generator. His success rate was much lower, at 59 percent.
That is, the police actually found drugs just six of the 10 times Lex told them they would. That means that four of every
10 people Lex alerted to were subjected to a thorough roadside search that
produced nothing illegal. It gets worse. Even a dog that was well trained initially can be
conditioned to pick up bad habits once its in the field. This is exactly what was happening with Lex. It
turns out that Lexs handler gives the dog a reward every time he alerts, regardless of
whether that alert is accurate. Lex isnt getting rewarded for filtering innocent motorists from guilty ones.
Hes being trained to authorize a search, each and every time hes called to duty. The Seventh Circuit found all of this troubling,
even conceding that the reward policy was a terrible way to promote accurate detection. And yet according to the three-judge
panel that heard the case, none of this was enough to amount to a violation of the Fourth Amendment. Following the Supreme
Courts prescription in Harris, the opinion notes that that the dog had passed tests in controlled settings and cited testimony about
the dogs reliability. But that testimony came from the dogs handler. And theres no further explanation of what those tests in
controlled settings meant. Were they conducted by the police department? By the handler? Did they include tests designed to fool
the handler as well as tests designed to fool the dog? The head of the agency that trained the dog also provided testimony about
the quality of his groups training, but of course hed say that. He also expressed concern about Lexs high alert rate and relatively
low accuracy rate, and about the fact that Lex actually had failed two simulated vehicle searches. Yet the opinion points out that in
the past, the Seventh Circuit found no problem with a drug dog whose accuracy rate was 62 percent. Lexs was only slightly lower.

the U.S. Court of Appeals for the Fourth Circuit gave its okay to a
dog with a success rate of 43 percent, or less accurate than a coin flip. This even
lower number jibes with a 2011 Chicago Tribune investigation of suburban Chicago
police dogs that found a success rate of just 44 percent. That review also found that
with Latino drivers, the accuracy rate plunged to just 27 percent, more evidence
that the dogs are merely reflecting the biases and presuppositions of their handlers .
Other studies have shown false positive rates of up to 80 percent. With success rates that low, its hard not to
conclude that drug dogs are nt tools to determine probably cause, but basically a search warrant
on a leash. In Bentley, it turns out that the dog was correct. The suspect was found to be transporting a large supply of
Moreover, the court notes that

cocaine. But guilty people tend to bring the appeals that set precedents because guilty people have a lot more to lose. A false drug
dog alert that turns up nothing wont result in an arrest. To get a court to rule that search illegal, the victim would need to file a civil
rights lawsuit. Thats a lot of hassle and expense for someone to endure to get compensation for a wrongful 45-minute search on the
side of the road. And thats assuming they can find an attorney to take the case. Civil rights suits take a long time to resolve and are
very difficult to win. At worst, a false alert may lead to the wrongful seizure of a motorists cash, car or other property. Here, theres
more incentive to go to court the motorist wants his money back. But here too, other incentives cut against legal action. First, the
cost of hiring an attorney and going to court can often exceed the value of the property that was seized. It can also take months,
sometimes years. And even if a motorist does succeed in getting his property returned, its another huge step and another round of
litigation, expense and risk of failure to get the courts to declare that the stop itself was a constitutional violation. Most people are
just happy to have their property back. The point here is that it might be tempting to shirk at the injustice of this ruling: Maybe the
dog was a ruse to let cops search this guy, but that search led to a huge stash of cocaine. Whats the problem? The problem is that

this ruling gives wide latitude to police agencies in the Seventh Circuit to use drug dogs as
a[n] end-run around the Fourth Amendment. And that affects everyone, not just drug dealers. That
means more latitude for forfeiture, and more potential for the sort of corruption and
legalized highway robbery weve seen reported countless times over the past few years. Even if no property is
seized, a roadside search can be a humiliating and time-consuming experience. The cops will typically go through everything you
own, including bags, suitcases, pockets, purses and so on. Sometimes theyll tear out the upholstery of your vehicle. Theyll scatter
your belongings along the side of the highway. The opinion in Bentley cautions against a race to the bottom when it comes to drug
dog accuracy, but its hard not to think that were already there. Remember, Lex was called out only when the police suspected
someone was in possession of drugs. If we assume that cops are at all skilled at detecting drug runners, wed already expect a fairly
high percentage of stops in which the drug dog is called out to produce illegal drugs. If the drug dog is still wrongly implicating four
of every 10 people, its actually quite a bit worse than a coin toss. The dog really isnt filtering out innocent people at all (an

consider that Fourth Circuit drug dog that

was wrongly implicating nearly six in 10 people , thus subjecting more than half the motorists it sniffs to a
assertion already backed by Lexs 93 percent overall alert rate). Now

wrongful search. First, this means that the police themselves in that jurisdiction were already pretty bad at identifying potential drug

we can at least assume that the police there were good enough that the pool of
people who get a dog sniff will include a significantly higher percentage of drug
offenders than the overall pool of drivers. (Id imagine that even the average citizen could pull this off.)
Assuming that much, its hard to imagine a drug dog doing much worse than a false alert
rate of 60 percent. To get to a false alert rate of 70 or more percent, as the Chicago
Tribune found with Latino drivers in the suburbs, youd almost have to
intentionally train the dog to make mistakes. The Supreme Court originally gave its imprimatur
to drug dog sniffs because when used properly, the dogs finely tuned sense of smell can
detect drugs and their absence with incredible precision . But that caveat when
used properly is critical. If a drug dog isnt eliminating any innocent people, if its validating the suspicions of
offenders. But

the police nine out of ten times resulting in searches for which up to half or more of the suspects are innocent, then descriptors such
as finely tuned and incredible precision no longer apply. And neither does the Fourth Amendment.

Law enforcement needs probable cause to confiscate assets.

Smith, 7/30. (David B. Smith. "A Comparison of Federal Civil and Criminal
Forfeiture Procedures: Which Provides More Protections for Property Owners?"
Heritage Foundation. 7-30-2015 Web. Accessed: 8-9-2015.
Although Congress intended that the government have to prove criminal forfeiture beyond a reasonable doubt, and although that
burden was originally applied by the courts, the courts later decided that because forfeiture is part of the sentence in a case, the
burden of proof should logically be by a preponderance of the evidence, the normal burden on the government at sentencing. In so
holding, the courts simply ignored congressional intentas if it did not matter.[20] Those decisions were embodied in Rule 32.2 in
2000. In civil forfeiture cases covered by the CAFRA reforms, the governments burden of proof is by a preponderance of the
evidence as well. However, in the many Customs cases exempted from the CAFRA reforms (see 18 U.S.C. 983(i), the Acts
Customs carve-out provision), the pre-CAFRA and blatantly unfair burden of proof codified in 19 U.S.C. 1615 still applies. Under

the government merely has the burden of

showing probable cause for the forfeiture and may use otherwise inadmissible hearsay evidence to do so.
Then the property owner has the burden of proving by a preponderance of
the evidence (no hearsay allowed for the owners case) that the property is not subject to
forfeiture. A number of courts had concluded that this absurd allocation of the burden of proof violated due process, but the
that statute, which dates back to colonial times (1740),

issue has not received the attention it deserves since the enactment of CAFRA in 2000, despite its continuing presence in Title 19
and in 26 cases carved out of the CAFRA reforms.