editorial comment The War on Drugs has more allies than the constitution does on the bench. As we cannot eat judges, paraphernali is looking up for its next trip to Vietnam......

Local law enforcement is declaring the recent U.S. Supreme Court decision that a trained dog’s cold, wet nose does not infringe on man’s inalienable right to privacy a crucial victory in the "War on Drugs."

"The ruling basically at present communicates to us a stamp of approval," said McAllen Police Chief Victor Rodriguez.

"Had this ruling gone the other way, it could have severely impacted us."

On Jan. 24, Justice John Paul Stevens overturned the Illinois Supreme Court’s ruling, writing that "a dog sniff conducted during a concededly lawful traffic stop … does not violate the Fourth Amendment."

Basically, a sniff is not a search.

It’s a ruling that has tremendous implications for the Rio Grande Valley — one of many drug corridors though which narcotics traffickers transport loads of illegal substances coming from Mexico and South America into the United States.

Although millions of pounds of marijuana and other high-demand drugs are stopped at the border or at the checkpoints by U.S. Customs and Border Patrol agents each year — during fiscal year 2004, CBP officers seized nearly 2.2 million pounds of drugs with a street value of about $2.62 billion — inevitably some drugs still manage to hit the streets.

Valley law enforcement is on the front lines to stop it.

"We believe that the decision is a victory for law enforcement because we believe dogs are a great tool," said Sgt. Martin Garza, spokesman for the Mission Police Department. "They make our jobs a lot easier."

"It’s a tool for us. It helps us out a lot," said Texas Department of Public Safety trooper Johnny Hernandez. "We use it everyday, as much as we can."

To justify use of a K-9, an officer must have "reasonable, articulable suspicion," and the sniff can only take place on the exterior of the vehicle after a motorist is lawfully stopped for a traffic violation, such as running a red light or speeding. Consent or search warrants are still generally required to search inside a vehicle, but a dog’s alert to the narcotics gives an officer probable cause to get that warrant. According to the U.S. Police Canine Association, "reasonable suspicion is a much lower standard than probable cause" — "a more likely than not standard."

Rodriguez said the reasonable suspicion can be established in three ways: by the behavior of the driver or passengers in a vehicle, by evaluating the circumstances of the traffic stop — such as, did the car just roll off the levy at 3 a.m. with its headlights off? — and by using the senses of sight and smell.

"Reasonable suspicion is not profiling," Garza said. "It has nothing to do with the color of skin or race of a person."

While local police departments note that not every traffic stop generates reasonable suspicion and, thus, a dog will not be used every time, some people, including two Supreme Court justices, feel that the ruling provides no stopping point for excessive use of man’s best friend.

According to a press release from the American Civil Liberties Union of Illinois, the organization feels drug-sniffing dogs will be abused and used to search parked cars, pedestrians and buildings without individualized suspicion.

Multiple calls to the ACLU of Texas went unreturned. The Washington and New York offices did not provide any more comment than the press release. The case that went to the Supreme Court originated in Illinois.

However, the law enforcement officers interviewed expressed that being in public domain nixes any expectation of privacy.

"If a dog can get in and out, there is not an expectation of privacy," Rodriguez said. He noted that dogs can search school lockers, the U.S. Border Patrol is granted authority under law to use a canine at checkpoints, and the McAllen Police Department currently uses canines to check suspicious packages and luggage at mail shipping operations, the bus station and the airport.

"It’s free air. You breathe it. The dogs breathe it," DPS trooper Hernandez said.

Reasonable suspicion is subjective; hence why some people have problems with it as part of a law. Some wonder: could an officer search every vehicle he or she stops?

"I don’t think (dog searches are) abused. They aren’t going to be put on every car. There are 28 dogs in the state, 25 deployed in key locations," Hernandez said. In 2003, DPS did 2,880 vehicle searches in the entire state.

"Does that sound like abuse to you?" he asked. He said he did not have the number of total traffic stops done by DPS in the state.

"This (ruling) should not suggest that we are going to do more than we already do," Rodriguez said.

The court’s dissent, written by Justice David H. Souter, also expresses that dog searches are intrusive and can reveal lawful private items when the dogs are wrong.

"The infallible dog…is creature of legal fiction," the dissent reads. "In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times."

The use of a K-9 changes the character of a traffic stop, it continues. Trained dog sniffs could seem to be as intrusive as thermal-imaging devices that police once used to detect heat coming from marijuana-growing lamps inside peoples’ homes, it notes. Thermal-imaging was declared unconstitutional in 2001.

Despite such strongly articulated sentiments, the dissent does have one loophole, if it may be called that.

Justice Ruth Bader Ginsberg wrote in a footnote that these same invasions of privacy are not so when it comes to explosives, dangerous chemicals or biological weapons: "Suffice it to say here that what a reasonable search depends in part on demonstrated risk. Unreasonable sniff searches for marijuana are not necessarily unreasonable sniff searches for destructive or deadly material if suicide bombs are a societal risk."

The McAllen Police Department recently acquired a bomb-sniffing dog, the only one of its kind in the Valley. But Rodriguez puts the bomb dog on the level of the department’s five narcotics dogs.

"The dogs are very significant to what we do — for officer safety, the war on drugs and homeland security," he said.

Although this ruling only affects the U.S. Border Patrol in a minor way — when they assist other agencies with a traffic stop by allowing the department to use one of their dogs — Marcos Garcia, a supervisory agent and K-9 coordinator for the McAllen sector, said he feels good that the high court is on the side of law enforcement.

"With the good comes the bad. But the Supreme Court ruling — what its intentions are are great. If there’s nothing there, the dog’s not going to alert … If it gets more drugs off the street, I’m for it," he said.

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Cari Hammerstrom covers law enforcement and general assignments for The Monitor. You can reach her at (956) 683-4424.

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