December 21, 2001

Oakland Tribune

FOR those BART passengers who have long complained that the transit system's service has gone to the dogs, tangible proof emerged last week when BART police and U.S.  Customs Service agents began random onboard sweeps using drug-sniffing dogs. 

While the narcotics-sensitive canines have proven a hit with most commuters, their accusatory noses have caused civil libertarians to pick a bone with the dog dragnet's constitutionality, particularly as our country is already in a period when civil liberties are under pressure from the war on terrorism. 

The dog sweeps yielded a limited catch in one day's hunt on East Bay trains - -- three people with small amounts of marijuana with another secreting a more significant multi-bagged stash of pot -- and a clutch of token marijuana holders were cited on a successive day.  But the dogs failed to uncover the bonanza of kilos of cocaine, heroin and even more marijuana that some law enforcement officials suggested might be there for the nabbing on the rails. 

After talking to other law enforcement agencies, BART police became persuaded that the new San Francisco International Airport BART station, scheduled to open late next year, could become a prime conduit for off-the-plane drug smugglers and dealers.  While last week's dog sweeps produced few drug busts, they do serve as a trial run for what might prove a much bigger narcotics-busting task once the SFO BART station opens. 

A more immediate concern, however, is the possible violation of constitutional rights that the dog sweeps represent.  Legal experts have pointed out that searches are permissible under the Fourth Amendment only if there is a concrete suspicion that individuals have contraband on their persons.  But the drug-sniffing dog patrols let loose last week operated in quasi-random fashion and will remain questionable until targets that are anticipated -- such as drug-toting suspects deplaning at SFO -- start stepping aboard BART trains at Millbrae next year. 

Another nagging problem with the dog sweeps is that they are not infallible, as not every person drug-sniffing dogs lead police to will actually be in possession of narcotics.  These "false positives" could lead to follow-up searches such as pat-downs, adding to the potential for constitutional transgressions. 

"It's a noble cause, but you've got to do it without violating constitutional rights," said John Heller, a San Francisco attorney who has assisted the American Civil Liberties Union of Northern California in civil rights cases. 

Since the Sept.  11 terrorist attacks upon our nation, the American public has become more tolerant of encroachments upon civil liberties in the name of counter-terrorism -- more than 60 percent of those polled have consistently approved of the Bush administration's controversial counter-terrorism bill passed by Congress -- and, in the scheme of things, may consider the drug-sniffing dog sweeps as harmless as a flea to civil liberties.  Any dog, though, will tell you through its frantic scratching that even a flea can be an irritant. 

Care must be taken that legitimate drug-possession investigations don't morph into illegal searches and seizures.  We certainly feel that government officials have a greater potential for infringing civil liberties under the new domestic counter-terrorism procedures than BART police do with drug-sniffing dogs.  Nevertheless, sometimes even man's best friend needs to be kept on a leash.