December 18, 2001

By Josh Richman

Dublin Tri-Valley Herald

Random sweeps of BART trains with a drug-sniffing dog led to about a dozen marijuana citations and an arrest this week, but they also have some civil libertarians howling mad.

BART Police officers and U.S. Customs Service agents began walking a drug-trained Labrador retriever through the trains Wednesday. When the dog smells drugs on a person, she stops, sits down and points with her nose, alerting officers to make a search.

"It's unconstitutional," said San Francisco attorney John G. Heller, who has helped the American Civil Liberties Union of Northern California fight cases of similar random sweeps in public schools. "A dog sniff is a search of a person under the Fourth Amendment, and you can't do that unless you have some particularized suspicion a person has contraband on them.

"Above and beyond that, I think it sends a terrible message at a time our civil liberties are already under siege," he said. "I'm certainly looking forward to challenging the program on BART if there are passengers interested in pursuing such a challenge."

BART Police Commander Wade Gomes said passengers haven't lodged "any complaints at all. In fact, most of them are happy to see the dogs. Some say, 'You might consider getting some bomb-sniffing dogs.'"

The dog sweeps started Wednesday, nabbing three people with small amounts of marijuana on East Bay trains at Richmond, Hayward and San Leandro; they were given citations and released. But John Patrick Mallon, 37, of Concord, was found on a Pittsburg/Bay Point train at the Walnut Creek station with 13 bags of marijuana. He was booked into Contra Costa County's Martinez Detention Facility for possession of marijuana for sales.

More marijuana citations were handed out Thursday. Gomes said Friday it's a good start, although not quite what they'd hoped for.

"We didn't detect any large amounts," he said -- the sweeps didn't catch the "kilos of cocaine or large amounts of heroin" that federal, state and local police have said could be moving via BART.

It's tough luck for people caught with small amounts of marijuana, Gomes added: "A narcotics-sniffing dog can't discriminate among narcotics. He's going to alert on any kind ... no matter what the amount is."

Other law enforcement agencies are worried about the new San Francisco International Airport BART station opening late next year. Police worry it will be "a new gateway to the Bay Area via rapid transit, so (drug) couriers could get off planes and go directly to trains," Gomes said.

"It's a noble cause but you've got to do it without violating constitutional rights," Heller retorted, adding there's a high percentage of "false positives" in which dogs point officers to people holding no drugs at all. "So you have this situation arising where passengers might be subjected to a follow-up search -- a pat-down or other search of their person -- based on an unreliable dog alert. That adds to the constitutional concern."

Gomes said BART Police will evaluate this week's sweeps and take public input before deciding whether to do it again.

They might work with other law enforcement agencies, he said, and if the sweeps prove fruitful enough, perhaps they'll eventually try to get their own drug-sniffing dog.