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    Stanford Law Review: How the War on Drugs Distorts Privacy Law

    In the Stanford Law Review, Jane Yakowitz Bambauer, Visiting Assistant Professor at Brooklyn Law School, has an article concerning privacy issues: “How the War on Drugs Distorts Privacy Law.” Here’s an excerpt from the introduction:

    The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.

    Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,” a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches. […]

    This Essay presents new qualitative research based on the facts of Florida v. Jardines. The results suggest that Americans are more resistant to new police tools and new models of investigation when we are skeptical about the underlying substantive criminal laws. Intuitive reactions to the “war on drugs” put scholars and courts at risk of overlooking the value of new investigatory tools. Emerging technologies can simultaneously improve crime detection and reduce law enforcement discretion (and, hence, potential abuse). If used properly, these tools can lead to more equitable enforcement of criminal laws without significantly burdening privacy.

    The Essay concludes by proposing how Fourth Amendment analysis can be reconfigured to accommodate both the old model of individualized suspicion and new suspicionless models designed to decrease discretion. It argues that courts should require three elements before determining that use of a new tool does not constitute a search: (a) low error—the screen significantly outperforms the accuracy rates of traditional probable cause warrants; (b) uniform application—all citizens are equally likely to be screened; and (c) negligible interference—the tool itself should not cause adverse effects. The drug sniff in Jardines fails on all three of these factors and would not be allowed under this rubric, but future law enforcement technologies might not.

    Found via Concurring Opinions.

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