Supreme Court: Alert by a Trained or Certified Drug Dog Normally Provides Probable Cause

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Yesterday, the Supreme Court decided Florida v. Harris, holding that when a trained and certified drug dog alerts on a vehicle, that normally provides probable cause to search the car, even if there are no records proving that the dog has previously performed well at detecting drugs in the field. I mentioned Harris in my Supreme Court preview, here, and in a long prior post about the reliability of drug-sniffing dogs, here, so I have been awaiting the opinion.

Facts. The case arose when a Florida K-9 officer executed a routine traffic stop on the defendant’s truck. The defendant appeared nervous and there was an open beer can in the vehicle, so the officer asked for consent to search. The defendant refused. The officer walked his drug dog around the vehicle and the dog alerted. The officer searched based on the alert; he found no drugs but did find 200 pseudoephedrine pills, 8,000 matches, and other ingredients for manufacturing methamphetamine. The defendant was arrested and charged based on possession of those ingredients. Later, while the defendant was out on bail, the officer stopped him again for a traffic violation, the dog alerted again, and the officer searched again, but found nothing of interest in the vehicle.

Motion to suppress. In court, the defendant moved to suppress the pseudoephedrine and other items found in the initial search. The state showed that the dog had completed a 120-hour police-run training course; that the dog had previously been certified by a private dog training and testing outfit, though this certification was not required by law; and that the officer and the dog undertook various refresher training from time to time, during which the dog performed well.

The defendant argued that while the dog may have been trained in drug detection, his certification had expired and his performance in the field was poor, as reflected in his two alerts on the defendant’s narcotics-free vehicle. Thus, the defendant maintained, the dog’s alerts did not provide probable cause to search. The officer admitted that he did not keep complete records of the dog’s field performance, but argued that the dog likely alerted to the defendant’s vehicle based on a residual odor of methamphetamine.

Lower court rulings. The trial court denied the motion and, after the defendant pled no contest and appealed, an intermediate appellate court affirmed. The Florida Supreme Court reversed, ruling that records reflecting how often the dog “alerted in the field without illegal contraband having been found” were necessary to determine whether the dog’s alert provided probable cause.

Supreme Court ruling. The United States Supreme Court granted certiorari and again reversed. The Court unanimously held that:

  • Probable cause must be assessed using common sense and under the totality of the circumstances
  • Requiring a checklist of particular evidence, such as a dog’s field performance records, is the inconsistent with a totality-of-the-circumstances approach
  • Field performance data is imperfect because it may understate a dog’s false negatives (as the dog’s failure to alert usually will result no search being conducted and so no drugs will be found even if they are present) and may overstate a dog’s false positives (because, for example, a search based on an alert may fail to reveal drugs that are present but well hidden)
  • Controlled testing of dogs is a “better measure” of their reliability, so if the state can show that a dog performs well at detecting drugs in a controlled setting, and a defendant fails to contest that showing, that is enough to show that the dog’s alert provides probable cause
  • The defendant may contest such a showing by contesting the training and testing standards, by presenting fact or expert witnesses, or by contesting the particular alert (for example, by showing that the officer cued the dog to alert)
  • In this case, the state’s evidence about the dog’s training and proficiency in finding drugs amply supported a finding of probable cause, and the defendant’s response was focused on only two alerts, which may have been explained by residual odors and were, in any event, hindsight

Further litigation? I suspect that the Court’s opinion will spark litigation about drug dogs, because it provides a framework for presenting and analyzing challenges to dog alerts. And the Court’s opinion leaves plenty of questions unanswered. For one thing, it refers to training or certification conducted by a “bona fide” organization without explaining how to know whether an organization is “bona fide.” How extensive must the organization’s testing be? How realistic? How much experience must the organization have? My understanding is that the field of drug dog training and testing isn’t regulated or standardized, so there may be great variability between programs.

Further reading. Perhaps along similar lines, professor Orin Kerr’s reaction to the opinion is that “the Court . . . said there is no particular test [for probable cause] and then created a particular test: Certification from a ‘bona fide’ organization . . . or ‘recent[] and successful[]’ completion of a training program creates a presumption of probable cause.” SCOTUSBlog’s summary of the case is here. The Washington Post covers it here.

The Court has not yet ruled on the other drug dog case it heard this Term, Florida v. Jardines, involving the use of a drug dog to sniff the front door of a residence. Stay tuned.

4 comments on “Supreme Court: Alert by a Trained or Certified Drug Dog Normally Provides Probable Cause

  1. I think additional training must be required for the dog to perform its job well. The skills of the dog like us human must be updated from time to time.

  2. What difference does training make when all cops have to do is say that the dog alerted or give a signal for the dog to sit or otherwise react in a way that the cop alleges constitutes an alert? When a citizen refuses consent ” requests” cops get angry and are even more determined to search, and can anyone really believe that at that point the cops will load Fido up and leave? Nonsense. There are many video’s taken from dashcams and private camera’s ( the ones that did not get illegally seized and deleted) of just such dog searches. the dog very badly wants his treat or reward for making the handler happy, and is itching to find a way to perform to the handlers satisfaction. Cops, as we all know, have absolutely no scruples about ” getting the job done” without any care for the law.

    dogs are not perfect, most cops do not note false alerts, and most dog cops testify that the dogs are perfect, never falsely alert, and that when nothing is found that the subjects simply had removed the contraband prior to driving and the search. Experiments done recently prove beyond any doubt that the dogs react to the handlers belief that a package contains drugs, and will alert due to subtle suggections from the handler.

    The 4th Amendment means zilch when both cops are willing to make the dog alert and when the dogs are trained to alert when the handler influences them in subtle ways. It is a nightmare for civil rights for an animal to become an automatic warrant generator by giving PC to a supposed alert. cops learn fast: If a driver refuses consent, simply make the dog alert..after all, everyone must be guilty if they do not roll over and relinquish all of the rights guaranteed by the Constitution.

    Once at a drivers license checkpoint, a cop asked me if he could ” quickly ‘ search my car just so that ” he could do his job and make sure there were no guns or drugs ‘ in it, and I refused. When he asked if I had something to hide, I said ” No, I have something to protect “…” What is that ‘, he said…I said : ” The Constitution of the United States ‘ which I fought in Vietnam for.” He just looked away, hopefullt shamed, and motioned me to pass..

    Never ever give consent to a search, if for no other reason to let cops know that the blood of countless patriots means far more than their desire to reduce the population to cowering and subjugated weaklings ready to abandon our rights in the interest of petty pot busts.

    • Amen Richie! The cops may enforce the law, but a lot of us have protected the law that they enforce. We fought hard to protect the Constitution, the leos should work just as hard to make sure that their collars honest.

  3. Recently a federal judge threw out charges because of lies and perjury by the cops

    “Within two minutes, Graham County Detective Matthew Cox had released Beck, a drug dog, to sniff around the car. When Cox told Smith that the dog had alerted to the presence of drugs, Smith asked Wilson and Raymond to exit the car, according to court documents.

    The only problem was that the dog did not, according to video taken from a camera on one of the patrol cars, alert. In fact, he was not even trained to recognize prescription drugs, so there is no way oxycodone could have elicited an alert.

    “It is undisputed that Beck never gave his trained indication,” the court opinion reads.

    However, Detective Cox continues to hold his job with Graham County, and Sheriff Mickey Anderson said he has no plans to make any change to that arrangement.

    “I don’t know about that,” he said of the judge’s opinion. “I wasn’t there at the case. I think he [Cox] got misconstrued somehow.”

    MISCONSTRUED? How can a camera misconstrue? A federal judge ruled that the cop lied, that the cops perjured themselves on a search warrant affidavit, and violated the 4th Amendment, but the Sheriff obvioulsy thinks all that is Ok as long as his officers don’t get caught, and even when they do thinks it is no big deal. No officers were sanctioned whatsoever. Perjury charges should be filed as they would if you or I perjured ourselves. Cops constantly lie about dog alerts and now most will make sure that their dash cams are pointed away from the scene…sickening example of police misconduct : http://smokymountainnews.com/news/item/12625-no-repercussions-for-officers-involved-in-dismissed-drug-case

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