The Dream Is Over? Seasons in Fitness and Sports

There is a time for everything,
    and a season for every activity under the heavens:

2     a time to be born and a time to die,
    a time to plant and a time to uproot,
3     a time to kill and a time to heal,
    a time to tear down and a time to build,
4     a time to weep and a time to laugh,
    a time to mourn and a time to dance,
5     a time to scatter stones and a time to gather them,
    a time to embrace and a time to refrain from embracing,
6     a time to search and a time to give up,
    a time to keep and a time to throw away,
7     a time to tear and a time to mend,
    a time to be silent and a time to speak,
8     a time to love and a time to hate,
    a time for war and a time for peace.

Ecclestiastes 3:1-8

For many of us, this is an ordinary Friday; not so for the small subset of people interested in marathon swimming. Today, my friend Avishag Kofman-Turek, whom I met through our mutual interest in swimming the Sea of Galilee, completed an amazing athletic feat: swimming the North Channel from Ireland to Scotland.

Throughout the day, since the wee hours of the morning, I followed the GPS feed and rooted for Avishag’s safe and successful crossing. It is a huge endeavor. The water is frigid and required many months of difficult acclimation, not to mention a considerable increase in practice yardage (I should say, mileage.)

While witnessing this accomplishment, I was busy reading and completing assignments for four courses: Modern Jewish Thought, Intro to Buddhism and Buddhist Studies, How to Read the Book of Job, and Buddhism in the West. Recently, I’ve embarked on my own marathon swim, an intellectual one; I’m pursuing rabbinical ordination at the International Institute for Secular Humanistic Judaism and a masters degree at the Graduate Theological Union’s Center for Jewish Studies. I’ve been keeping this on the down-low during the application process, but if you peek here you’ll see a familiar face. It’s a feat no less solitary than marathon swimming, nor is it going to be easy (I continue to work full time as a law professor and be a full-time devoted mom to my son – I just sleep a lot less and have eliminated idle Internet time from my schedule) but it looks a lot less heroic, as it entails nothing photogenic: just sitting in front of my laptop, reading and writing.

It’s been ages since I trained for, and participated in, a real marathon swim. I know exactly when the last time was: the Thames Marathon in 2016. It was beautiful and serene and a good way to go about semi-retirement from marathon swimming. I still swim in the bay once in a while, and I did crank out a 5k without much effort in Kona last year, but nothing like the distances I used to put in week after week when I was training for big things like the Sea of Galilee or the Tampa Bay Marathon. In the last year, I shifted my efforts into multisport and lifting, partly to combat perimenopause and its discontents, but in the four months since my dad’s illness everything came to a grinding halt and the grief has made it very hard to work out at all, let alone swim a meaningful distance. I’m experiencing a really rough somatic reaction to breathing while swimming, perhaps because dad died of a rare lung disease and struggled to breathe before he was intubated. The lack of exercise and some emotional eating resulted in putting on some weight, and while a couple of months of careful whole food/veg juice diet and vigorous exercise will do the trick, I’m just not feeling it as a pressing priority. I am making an effort to eat healthy things, take good supplements, and move every day (I commute by bicycle, lift in my garage, and take walks in the neighborhood). But it really is an effort.

I did feel a little melancholy today reflecting on Avishag’s amazing swim. Not a sense of envy at her success, but rather a bit of wistfulness about how I don’t seem to be able to muster the kind of gumption and perseverance I used to have about dramatic athletic feats. I take some comfort in the wisdom of Ecclesiastes, echoed in this awesome Rich Roll podcast about periodizing one’s life. Now’s the time to take good care of myself without embarking on big health-and-fitness goals, make sure I’m well nourished when I go to teach and study, and invest in my new academic pursuits. Thing is, I’m not getting any younger, and while swimming is something you can continue to do and improve in throughout your life, I doubt I’ll be able to pull off big marathon swims out of the blue when I’m in my 60s and 70s without putting the requisite time now. But none of this matters if I just don’t have it in me at the moment.

The dream is over,

What can I say?

The dream is over

Yesterday

I was the dream weaver, but now I’m reborn

I was the walrus, but now I’m John

And so, Dear Friends, we’ll just have to carry on;

The dream is over.

John Lennon, “God”

Searching Cars with Dogs and the Big (?) Trespass Comeback (?): Idaho v. Dorff

As I was preparing to teach the first Fourth Amendment class, I got an email from our appellate advocacy team: would I be willing to be on a panel about Idaho v. Dorff, an Idaho Supreme Court case that has been granted cert by SCOTUS recently? I read the whole decision – you can do the same here at this link – and honestly, I’m not sure how much of a big deal this is. Here’s the back story:

On a night in August 2019, a patrol officer from the Mountain Home Police Department initiated a traffic stop on a vehicle. The patrol officer reported witnessing the driver “make an improper turn,” “cross three lanes of traffic and then fail to use [his] turn signal.” Two men were in the vehicle: Kirby Dorff, the driver, and Mitchell Hall, a passenger. After the patrol officer stopped the vehicle in a grocery store parking lot, Dorff told the officer that he did not have a valid driver’s license or proof of insurance in the vehicle. During the time the patrol officer was speaking with Dorff and Hall, a K-9 officer arrived on scene with his drug dog, Nero.

The K-9 officer circled Dorff’s vehicle twice with Nero. Nero never entered the interior compartment of the vehicle.However, as Nero circled the vehicle, Nero directed his nose close to the vehicle’s seams (nearly touching the vehicle in many instances); entered the wheel well areas with his snout; and reached for the vehicle’s undercarriage with the same. On Nero’s second pass, body-camera footage from the on-scene officers shows Nero made two potential contacts, and one explicit contact, with the vehicle’s exterior surface: first, on the rear passenger side of the vehicle (briefly as he jumped up); second, on the front passenger side of the vehicle (again, briefly as he jumped up); and third, on the front driver side of the vehicle—this time planting his front paws to stand up on the door and window as he sniffed the vehicle’s upper seams. During this time, the K-9 officer made upward gestures, purportedly “[p]resenting areas for [Nero] to sniff.”The K-9 officer later testified that Nero alerted during his explicit contact with Dorff’s vehicle, i.e., after Nero stood up and put his front paws on the front driver side door and window.

Following Nero’s alert, on-scene police officers searched Dorff’s vehicle.In it, they found a pill bottle, folded papers, and a baggie—all containing white residue that later tested positive for methamphetamine.The officers also found “[a] purple container filled with a green leafy residue” in the trunk.

This led them to more searches and more evidence, all of which would fall apart if the initial search was unreasonable. Which, of course, Dorff claims it was. Here’s the footage from the search – you be the judge:

Exhibit A
Exhibit B

Fourth Amendment enthusiasts in the crowd may recall that, in 1967, the Warren Court replaced the trespass test with a subjective-objective privacy test: police action is a “search” or a “seizure” if it violates the target’s reasonable expectation of privacy. Anyone seeking to suppress evidence has to show that they had a subjective expectation of privacy in the premises/effects, and the court must find that it’s an expectation society accepts as reasonable. But in 2012, the Roberts Court held that they had never completely abandoned the trespass doctrine. Following up on this logic, the Idaho Supreme Court digs deep into 18th century British Law (I read 20 pages of Blackstone blathering so that you don’t have to) and found that the touching of the car with the dog’s paws is “intermingling,” which constitutes trespass to chattel, and is thus a “search.” Okay.

I have two thoughts about this. The first one is that, watching the videos, I think one could make a plausible case that the dog-on-car-door action in this case was a search even under the reasonable expectation of privacy test. The video is truly worth a thousand words. First of all, not to put too fine a point on it, Nero is a big-ass dog. It reminds me of Dr. Mortimer’s immortal words: “Mr. Holmes, they were the footprints of a gigantic hound!” And Nero was leaning on the window for a good six seconds, wasn’t he? That’s clearly visible in Exhibit B. I think the extent to which this was a menacing, intrusive situation can be sensitive to the size of the dog and to the length of the intrusion. Seeing Nero slobber in my car window would definitely make me feel like some boundary between me and the world has been intruded.

The second thought has to do with Nero’s handler, who seems to be motioning upwards and even, if I’m not mistaken, saying “up” at some point. This is related to my general disgruntlement about how our exploitation of animals extends law enforcement activities. The Fourth Amendment applies only to state action, which raises the question – what is Nero, exactly? A cop? An instrument of a cop? A civilian police employee or volunteer? Some animal rights theorists are pursuing animal personhood in the form of labor rights for police dogs. Is the determining factor whether Nero is his own agent, or following his handler’s command? Or is the extent to which his whole life revolves around being useful to humans in detecting drugs determinative in making anything he does into state action, regardless of whether he is responding to a command at that particular moment?

I talked about this with some eminent Fourth Amendment eggheads, who do not think this case will be a big deal in the long run. First of all, the Supreme Court granted cert but will likely not reverse and it just not that interested in Fourth Amendment issues. And second, this case can easily be limited to its facts. I’m not so sure. Consider the fact that the Golden State Killer was caught, in part, through removing DNA from the exterior of his car. Would that behavior now require a warrant? Does this mean we now treat every vehicle–not just vehicles located in the home’s driveway–as a protected constitutional zone?