Defending the Dog

Abstract

This short essay makes the uneasy case for the narcotics dog. Those in favor of U.S. drug enforcement presumably need no convincing, but this Article intends to address the concerns of skeptics who worry about unjust drug enforcement, or who believe that criminalization is just plain bad policy. Dogs are just the first generation of a new set of law enforcement tools that can help us divorce criminal investigation from the bias and discretion that comes with traditional policing.

Part I presents the results of new survey research showing that Americans are much more likely to believe police dogs violate the right to privacy when they are used to detect drugs than when they are used to detect dead bodies. Instincts about privacy and criminal procedure are influenced by the unpopularity of drug enforcement policies. Parts II and III make two counterintuitive arguments in defense of the narcotics dog: (1) in criminal investigations, random error is more equitable than human error; and (2) we should increase the detection and enforcement of crimes that may be over-penalized in order to draw public attention to arbitrary punishment. Those opposed to the criminalization of drugs rely at their peril on the Fourth Amendment to fix a problem embedded in substance rather than the investigation process. The Article concludes with some thoughts about the features of an ideal narcotics dog program.

Keywords: Fourth Amendment, Drugs, Narcotics, Drug-sniffing dogs