Legal Commentary

Drug Dogs and School Parking Lots

By TChris

Campus police at the Fort Wayne (TX) Independent School District are miffed that school administrators would not let them search a teacher's SUV after a high school parking attendant claimed to smell "the odor of marijuana" coming from the SUV, and after the police, responding to that information, had two drug dogs sniff around the SUV, resulting in "alerts" from both dogs. The police claim this gave them probable cause to search the SUV, but school district administrators ordered them not to search it because "there was no evidence of workplace misconduct."

The police have a point. They apparently search students' cars routinely when drug dogs alert, even in the absence of "school misconduct" by the students. Why should a different policy apply to teachers?

Unsurprisingly, however, the larger question has eluded the police, the school district administration, and the reporter who covered this story. [more ...]

The linked story does not say whether the parking attendant smelled the odor of burning or of unburned marijuana. The odor of burning marijuana might suggest that the teacher was coming to work stoned, which one might think was "evidence of workplace misconduct." It seems more likely that the odor was of unburned marijuana, a smell that isn't particularly easy to identify when it comes from inside a vehicle. Was the parking attendant someone who had a grudge against the SUV's driver? Maybe the teacher gave him poor grades in high school (and maybe that's why he's now employed as a parking attendant). Speculation aside, the dubious claims of a parking attendant to be able to discern the odor of unburned marijuana doesn't make it probable that the vehicle actually contained marijuana.

The story does not say that the police were able to smell anything; hence their reliance on drug dogs. And there's the real story. The drug dogs "alerted," but why? Because they smelled marijuana, or because they were reacting to nonverbal cues from their handlers? Dogs can't testify, and while K-9 handlers will swear that their dogs have a miraculous ability to detect whatever odor they've been trained to detect, when you watch the dogs on film it's often obvious that the dogs only react because their handlers point, or pat the car, or bring them back to the same spot over and over. Does a dog that "alerts" actually smell something, or is the dog doing what it thinks its handler expects it to do?

The telling fact in the story is this:

A Sugar Land Police Department spokesman said their Special Crimes Unit conducted a drug search of a vehicle at the request of a Fort Bend ISD police officer, apparently of the same SUV parked at Kempner. Nothing was found and no arrest was made.

Oops. No drugs in the SUV. Bad dogs!

As they always do, the police explained this result by pointing out that the teacher "easily had time to dispose of [the marijuana] from the time the campus K-9 search was called off and the time Sugar Land officers stopped the vehicle." Maybe, but the teacher was presumably unaware of the campus K-9 search and therefore had no incentive to "dispose of" the drugs. An equally credible explanation is that there were never any drugs in the SUV to begin with.

This highlights another problem with dog sniff searches. When a search following an "alert" turns up nothing, the police confidently proclaim that there must have been drugs in the car at one time, and that's what the dogs are smelling. But if sniffing dogs can't tell the difference between the odor of drugs presently in a vehicle and the odor of drugs that were once in a vehicle, how does an "alert" make it probable that drugs are presently in the vehicle?

The big story here is the fallibility of drug dogs and the time the police waste conducting drug dog "sniff searches" of vehicles parked in school parking lots. The police should spend their time (and our tax money) investigating real crimes, not ambiguous odors.

Full post as published by TalkLeft on January 22, 2009 (boomark / email).