On Oct. 31, the U.S. Supreme Court will consider Florida v. Harris, a case that could make it easier for police to seize your cash, cars or other property merely because a drug-sniffing dog “alerts” authorities that your property may have had contact with drugs. No drugs need to be found to lose what is rightfully yours. Likewise police and prosecutors don’t have to accuse you of a crime, let alone convict you of any wrongdoing, to make you forfeit your property. All they need is for a police dog to signal (by barking or sitting) that it supposedly detects the presence of drugs and then the burden of proving your property innocent shifts to your shoulders. And, as if that wasn’t bad enough from a civil liberties perspective, the very law enforcement agencies that seek to take your property can use the proceeds from the sale of those goods to fund their departments, giving them a direct financial incentive to abuse this authority.
Anyone who cares about the neutral administration of justice and is concerned about the threat of policing for profit should care about this case.
The case of Anthony Smelley demonstrates why the Supreme Court should rein in this power. Mr. Smelley was a college student who had received an insurance settlement. As he drove from Illinois to Missouri with $17,500 in cash on him to buy a car for his aunt, the Indiana police pulled him over for supposedly making an unsafe lane change on the freeway. A police dog was called to inspect his car and it signaled the supposed presence of drugs in the car. Although a thorough search uncovered no drugs and Mr. Smelley was never charged, the police confiscated his cash.
Mr. Smelley then found himself trapped under the weight of civil asset forfeiture laws, in which the American tradition of innocent until proven guilty is turned on its head. If the government has mere “probable cause” that your property is involved in a crime, they can take it, and the only way to get your property back is to sue the government and prove yourself innocent—waging an expensive battle against government lawyers. Unless the Supreme Court rules otherwise, the notoriously unreliable “alerts” of drug-sniffing dogs will give authorities the probable cause they need to seize your property. After a year-long battle, Mr. Smelley ultimately got his money back — without interest — and leaving him saddled with lawyer’s bills.
He is by no means alone. At the federal level, fewer than 20 percent of forfeitures lead to charges against property owners — leaving huge numbers of innocent property owners victims of the civil forfeiture system. And as one recent University of California study documented, “false positives” are common with drug-sniffing dogs. The study showed that dog handlers can give subtle signals, by accident or intention, that cause the dog to signal the presence of narcotics. Dogs also sometimes signal on their own in the absence of contraband, out of habit to please their masters. Where law enforcement agency budgets depend on forfeiture revenues, the hope or expectation of seizures can easily lead to miscuing of dogs and the abuse of innocent property owners. Alarmingly, 40 percent of 800 law enforcement executives recently surveyed said that civil forfeiture revenues had become “a necessary supplement” to their budgets.
In the town of Henry, Tenn., for instance, revenue from forfeitures was the justification for instituting a new K-9 police program. The program would be a money-maker for the city, the police chief explained to the city council, since a drug-sniffing dog would allow the city to rake in more cash and other property through seizures from motorists whose vehicles were inspected. Rather than focusing on public safety, the police and the city prioritized the revenue opportunity.
Civil forfeiture laws that give police and prosecutors a financial stake in the property they seize should be repealed. Until that happens, the Supreme Court can protect innocent property owners by declaring that an unreliable “alert” by a drug-sniffing dog — absent any other evidence — does not give authorities the probable cause they need to take your property.
Larry Salzman is an attorney with the Institute for Justice.