A Stitch in Haste

The first best way for law enforcement to circumvent the Fourth Amendment is to claim that a search isn't really a search. Because if a search is really a search, then you need probable cause (or a warrant based on probable cause) for anything seized in the search to be admissible in court. This is the so-called exclusionary rule.

The alternative, of course, is to dumb probable cause down such that almost anything constitutes it. Here are two recent examples of "anything and everything is probable cause" --

ITEM: Man's best friend continues to morph into liberty's worst enemy --

While drug- and bomb-sniffing dogs are a familiar part of law enforcement, canines specialized in detecting dollars have labored in relative obscurity.
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Currency smuggling, officials say, is becoming more serious as financial regulators around the world tighten controls on bank accounts and wire transfers.

"The dogs are trained to detect dollars, no other currency," said instructor Sue Hunsaker, "and they are trained to find bulk, quantities of more than 500 bills. We don't want them to bother regular travelers."

So now dogs are sniffing for currency. Because currency is illegal, like smuggled narcotics? Because currency is dangerous, like explosives? No, because now the mere possession of money is, apparently, probable cause that a crime has been committed. Because of course no upstanding citizen carries money and therefore has no reasonable expectation of privacy in containers that might contain money. And we all know that dog sniffs are always infallible, right? (Via CrimLaw.)

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ITEM: Perhaps next they'll train the dogs to sniff for condoms --

The first hint that VIP Sauna might not be a legitimate massage business is the heavily fortified metal door leading into the establishment, said Detective Clark Luntsford of the Boone County Sheriff's Department.

Not to mention the multiple locks on the door and outdoor surveillance cameras at the business, a battered A-frame at 5210 N. Highway 763. Luntsford said the real tip-offs, however, are the "house fee" -- $40 for a half-hour massage and $60 for an hour massage -- and the trash bag full of unused condoms, a grab bag for customers. "Normal massage parlors don't keep condoms in bulk," he said.
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Boone County [Missouri] Prosecuting Attorney Kevin Crane said shutting down such businesses isn't as easy as it might appear. "We have to have the proof," he said.

What a hassle, needing "proof."

Again, apparently condoms are now sufficient probable cause to search a business. Or at least condoms behind a big metal dock with locks. (Via Market Power.)

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These skirmishes in the War on Probable Cause are not unlike what happened with the atrocious Supreme Court eminent domain ruling, Kelo v. New London, No. 04-108 (2005), in which the Fifth Amendment's "public use" requirement was deemed inconvenient, so it was simply redefined into such a weak concept as to become a non-concept (and therefore a non-limitation).

The same thing is happening here with the Fourth Amendment's probable cause requirement: If you don't like the limitations, then ignore them. If you can't ignore them, then water them down until they don't stop you anymore.

You don't need a police dog's nose to know that stinks.