Dogs, Drugs and the 4th Amendment
A pair of K-9 decisions from the Supreme Court brings both good and bad news for law enforcement.
I’ve got good news, and bad news. Two cases from Florida have brought the U.S. Supreme Court to two different conclusions regarding K-9 searches in 2013. One is an affirmation of existing practice, but the other breaks new ground and imposes new limits.
First, the good news.
Florida v. Harris
Clayton Harris was driving his truck in Liberty County, Florida, with expired license plates. A sheriff’s deputy stopped him and, during the normal duration of the traffic stop, brought out a K-9 named “Aldo” and walked him around the outside of the truck. Aldo alerted to the door handle on the driver’s side. In a search of the truck, the deputy found 200 pseudoephedrine pills and other methamphetamine precursors.
Harris was arrested and charged with possession of chemicals with intent to manufacture narcotics. After his suppression motion was denied by the trial court, he pleaded guilty, while reserving the right to appeal the denial of his suppression motion.
The Florida Supreme Court ruled that the suppression motion should have been granted. That court created a rigid set of requirements that a dog and handler would have to meet to support a finding of probable cause, including exhaustive training and certification records, field performance records, and records on how often the dog alerted without any drugs being found. The state appealed this decision to the U.S. Supreme Court, which unanimously reversed.
The court first pointed out that the “probable cause” determination is not supposed to be reduced to a rigid set of rules, but is to be a common sense evaluation of all the circumstances, to consider whether the facts show a “fair probability” that a search will reveal contraband. The high court criticized the approach taken by the Florida Supreme Court, saying the following:
“We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. The Florida Supreme Court flouted this established approach to determining probable cause. To assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist, whose every item the State must tick off. That is the antithesis of a totality-of-the-circumstances analysis. No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause.”
The Supreme Court noted that no purpose would be served in collecting and reporting evidence of a dog’s “false hits,” because that might only mean the drugs were so well hidden that officers failed to find them, or that the dog was alerting to the residual scent of drugs that had recently been removed. And the court said that no specific list of training certifications could be required for a finding of probable cause. Said the court,
“If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.”
The Supreme Court said that K-9 evidence should be evaluated by the same probable-cause standards as other forms of proof: “The question — similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.”
When the Supreme Court applied this test to the evidence of Aldo’s performance, it reached this conclusion: “Because training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that showing, we agree with the trial court that the deputy had probable cause to search Harris’s truck.”
Now, the bad news.