Wednesday, October 31, 2012

SCOTUS Considers When Dogs Can Authorize Searches

SCOTUS Considers When Dogs Can Authorize Searches:
Tomorrow the Supreme Court is scheduled to

two Florida cases that cast doubt on the routine use of
drug-sniffing dogs to generate probable cause for searches. The
cases give the Court an opportunity to reconsider what has until
now been an excessively deferential approach to a law enforcement
tool that is far less dependable than commonly believed.

Florida v. Harris
raises the question of how much
evidence is needed to establish that a dog is reliable enough for
its "alert" to justify a vehicle search. The case involves Clayton
Harris, whose pickup truck was pulled over twice in 2006
by Officer Todd Wheetley of the Liberty County Sheriff's
Office, once for an expired tag and once for a malfunctioning brake
light. On both occasions Wheetley walked a German shepherd named
Aldo around Harris' truck, and on both occasions he reported that
Aldo indicated the presence of illegal drugs by "becoming excited
and then sitting" near the door handle on the driver's side.
Wheetley searched the car both times without finding any substances
Aldo was trained to detect. But during the first stop, he found 200
pseudoephedrine pills in a plastic bag, eight boxes containing
about 8,000 matches, a bottle of muriatic acid, two bottles of
antifreeze, and coffee filters holding iodine crystals. Charged
with possessing pseudoephedrine with the intent of using it to make
methamphetamine, Harris unsuccessfully sought to have the evidence
suppressed, then entered a no-contest plea while reserving the
right to appeal the legality of the search. Last year the Florida
Supreme Court
that the search was invalid because the state had not
shown Aldo's alert was enough to establish probable cause.
One difficulty in assessing this issue is that "probable cause"
has never been precisely defined. In the context of a drug search,
the Supreme Court has
it amounts to a "fair probability" or a "substantial
chance" that contraband will be discovered. That does not mean a
reliable dog must be right 100 percent of the time. But how high an
error rate is acceptable? In a 2005 dissent,
Justice David Souter cited examples from court cases of dogs with
error rates of up to 38 percent, adding that "dogs in artificial
testing situations return false positives anywhere from 12.5 to 60%
of the time." Last year a Chicago Tribune study
found that vehicle searches justified by a dog's alert failed to
find drugs or drug paraphernalia 56 percent of the time. While that
error rate might seem surprisingly high, the Court might
nevertheless deem a 44 percent chance of finding drugs "fair" or
In Aldo's case, there is no field performance record to check,
because police did not keep track of his errors. (After all, why
would anyone be interested in those?) The state argues that Aldo's
two unverified alerts to Harris' truck can be explained by traces
of meth that Harris left when opening the door. In other words, the
alerts were not, strictly speaking, false positives, because the
dog really did smell meth, just not enough to be visible. Along
with the possibility that drugs were hidden so cleverly that the
cops could not find them, this "residual odor" explanation is a
common excuse for apparent errors by drug-sniffing dogs. But it
tends to undermine the argument that an alert provides probable
cause. While it makes sense that a meth cook (and meth user) would
have traces of the drug on his hands, such odors might also be left
behind by passengers, passers-by, or even previous owners of the
vehicle. If a car once carried a pot smoker or its trunk once
contained several pounds of cannabis, for how long could
marijuana's ghost be detected by a dog? Depending on how persistent
and common residual odors are, they could play havoc with the
argument that a dog sniff reveals nothing but the presence or
absence of contraband.
In addition to residual odors, a fruitless search based on a
dog's supposed alert might be due to other distracting smells, poor
training, poor handling, a police officer's subconscious cues,
misinterpretation of the dog's behavior, or even outright lying
about what the dog did. Given all the potential sources of error,
the Florida Supreme Court said, "the fact that a drug-detection dog
has been trained and certified to detect narcotics, standing alone,
is not sufficient to demonstrate the reliability of the
dog," especially since there are no uniform standards for
certification. In addition, "the State must present evidence of the
dog's training and certification records, an explanation of the
meaning of the particular training and certification, field
performance records (including any unverified alerts), and evidence
concerning the experience and training of the officer handling the
dog, as well as any other objective evidence known to the officer
about the dog's reliability." Then a judge can decide, based on
"the totality of the circumstances," whether the dog's alert
amounts to probable cause.
The state of Florida, of course, disagrees, arguing that
certification and a handler's confidence in a dog are enough to
establish its reliability. The state's
Supreme Court brief
claims that "no one is in a better position
to evaluate the reliability of a well-trained dog's alert than the
trained K-9 officer who has spent countless hours training and
working with that dog." That's one way of looking at it. But a
skeptic might point out that, aside from whatever emotional
attachment the officer may have to this dog with which he works so
closely, he has a strong incentive to believe (or at least claim)
the dog is reliable, since that belief allows him to search people
he suspects are carrying drugs and makes the evidence collected
during such searches admissible—assuming courts agree with the
officer's assessment, which they generally do. It is long past time
for judges to examine such assertions more critically.
The other drug dog case,
Florida v. Jardines
, poses the question of whether a
warrant is required for a canine inspection of a home's exterior
(which can then be used to obtain a search warrant for the home).
In cases involving
traffic stops
luggage at airports
, the Supreme Court has said the sniff of "a
well-trained dog" does not count as a search within the meaning of
the Fourth Amendment, based on the theory that it does not reveal
anything people have a right to conceal. Does a different analysis
apply to a home, given the traditionally stronger privacy
protections in that setting? The question of a dog's reliability
should matter here too, since 1) the idea that a sniff is not a
search rests on an unrealistically sanguine view of the average
police dog's abilities, and 2) a mistaken alert to a house results
in a much more serious invasion of privacy than a car or suitcase
search. If courts are putting their faith in "certified" dogs that
are wrong most of the time, the upshot could be a lot of legally
unjustified home invasions.
Previous coverage of these cases
. Radley Balko got inside "The Mind of a Police Dog" in a
2011 column.