A Stitch in Haste

The warrantless wiretap scandal has pushed another Fourth Amendment issue off the radar screen, namely New York City's random suspicionless searches at subway entrances and on buses.

Any argument that those searches are permissible presumes that they are in fact effective — a ludicrous presumption of course given the way the program is structured. A useless search can never be reasonable — and can therefore never be constitutional.

Keep that in mind when reading this:

Dogs are acclaimed for detecting minuscule amounts of myriad compounds. Their noses are 100 times to 10,000 times more sensitive than human noses, depending on the scent. And they can identify particular odors within a complex mixture — which should be useful for detecting explosives, since many are a potpourri of scents.
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There's nothing wrong with using dogs to walk the subways to deter crime and make people feel better. But their noses can't be relied on there. "I wouldn't want to be the one who put it out to the public that the emperor has no clothes," the head of a large urban bomb squad told me. But "dogs do not function in the way everyone thinks." It is, quite simply, "bullshit," he says, to think that dogs can walk through subway cars, or sniff people entering turnstiles, and detect whether they've brought explosives along for the ride.

In other words, every single penny being spent on training dogs and dog handlers to patol public transportation — the TSA alone is spending $2.7 million per year — is being wasted.

Unless, of course, you subscribe (as the author of the piece does) to the same doctrine of "it is better to feel safe than to be safe" that the apologists for New York City's worthless and intrusive bag search program try to invoke.

"Who cares whether the sniff dogs actually work? So what -- at least we'll feel safe."

"Who cares whether random bag searches will actually thwart a terrorist plot? So what -- at least we'll feel safe."

"Who cares whether there's yet another erosion of the Fourth Amendment? So what -- at least we'll feel safe."

Well, some of us still care.

Having won the early legal rounds over their worthless (and therefore unconstitutional) random bag search program, the NYPD is taking the next illogical step in (the illusion of) protecting the subway system:

The police department has deployed the "first class" of K-9 units devoted exclusively to the subway, the city's top transit cop said Monday.
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"The biggest issue here is deterrence," said Lt. John Pappas, commanding officer of the Transit Bureau K-9 Unit. "The overall mission is counterterrorism and to fight crime."
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Police officials are being coy about the dog's [sic] abilities -- whether they are explosive sniffers or drug sniffers or both -- but say the training of each animal is extensive.

Some hasty stitches:

--Sniff dogs are not generalists: they are trained to sniff either for drugs or for explosives, but not both. So the fact that the police are "being coy" about which it is obviously means both: that some dogs are explosives sniffers and some are drug sniffers. And drug sniff dogs help in the War on Terror -- how?

--As for the explosives sniff dogs: How exactly are they going to help deter terrorists either? This is foul thought experiment that I abhor, but it's necessary: let's think like a terrorist for a moment. If your purpose is to blow up the subway system and kill as many people as possible, then you are going to do it during rush hour and on the most congested lines -- which is exactly when the sniff dogs won't be around, because it would be impractical if not impossible. Does anyone really believe that the NYPD is going to try to cram an 85-pound sniff dog onto a packed 4 train traveling between Grand Central and Union Square at 8:30 in the morning? Of course not. Deterrence factor: zero.

--Alternatively, if the terrorists prefer simply to inflict economic damage by causing multiple explosions all across the system, then they will do it late at night and at remote stations -- again, precisely where the NYPD will never deploy their sniff dogs. Deterrence factor: zero.

--Going back to "dogs on subway cars" (or, for that matter, dogs on subway platforms): One of the last great unanswered search-and-seizure questions is whether a dog sniff of a person can ever be a reasonable search consistent with the Fourth Amendment. There is a fundamental difference between a dog sticking his snout into your bag and sticking his snout into your crotch. Such a search would violate traditional notions -- including traditional constitutional notions -- of a "zone of privacy" and the right to one's own bodily dignity. The Court rarely finds a Fourth Amendment exception that it won't embrace, but even they would likely balk at this suspicionless affront to law-abiding people. (For an excellent discussion of police over-reliance on sniff dogs, see Justice Souter's dissent in the horribly decided dog sniff case Illinois v. Caballes, 543 U.S. 405 (2005), or this post.)

Much of the NYPD's approach to subway security has been anchored on a patently absurd premise: That it is better to feel safe than to be safe (or to acknowledge that perfect safety is simply not possible). The erosion of civil liberties for warm-fuzzy-feeling theatrics ought not be tolerated.