This week, the United States Supreme Court reversed the Florida Supreme Court in a unanimous — and pointed — opinion correcting the Florida court’s application of the probable cause standard. In essence, the court said that “police do not have to extensively document a drug-sniffing dog’s reliability in the field to uphold its work in court,” according to the Associated Press article here on Police1.
In Florida v. Harris, the Supreme Court rejected a “rigid checklist” of specific criteria that a prosecutor must show to offer evidence from a search following a detector dog sniff.
The Supreme Court particularly criticized the Florida rule focusing on a detailed performance history for the individual detector dog.
The Case Itself
Clayton Harris was driving a truck with expired license plates in Blountsville, Florida, when he was stopped by a Liberty County deputy sheriff. Harris was breathing rapidly, shaking and was exceedingly nervous as the deputy spoke to him. Harris had an open beer can in the cab of the truck.
The deputy believed that Harris might be under the influence of drugs, so he asked Harris to consent to a search of the pickup truck.
Harris refused.
The deputy deployed his detector dog, Aldo, to sniff the exterior of the truck. Aldo gave a positive response at the driver’s side door handle. The deputy searched Harris’s truck and found precursor chemicals — 200 pseudoephedrine tablets, 8,000 matches, muriatic acid, and iodine crystals — for cooking methamphetamine.
Harris admitted that he was a meth cook and that he had recently cooked a batch at his Blountsville home, and was charged with unlawful possession of pseudoephedrine.
While Harris was out on bail, the same deputy/detector dog team stopped Harris for another traffic violation. Aldo again gave a positive final response and the deputy searched the truck. No evidence was found in that search.
Harris challenged the reliability of the detector dog.
The Florida Supreme Court agreed with Harris that the prosecution had not gone far enough to show that Aldo was reliable.
The court noted:
“We conclude that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.”
Many state and federal courts across the nation have ruled that proper training and certification are sufficient predicates for supporting probable cause to search following a dog sniff with a positive response.
Principles of Probable Cause
The United States Supreme Court unanimously held that the Florida Supreme Court “flouted” well-established principles of probable cause. The Supreme Court chided the Florida justices for applying the “antithesis” of decades of Fourth Amendment jurisprudence.
The Court noted that the Florida court “made matters worse” when it created an “inflexible checklist” for the prosecution to satisfy in order to establish that a detector dog’s positive final response provided probable cause to search a vehicle.
The Court held that “if a bona fide organization has certified a dog after testing his reliability in a controlled setting” or “if the dog has recently and successfully completed a training program,” a trial court should presume that the dog’s positive final response provides probable cause to search.
Justice Kagan wrote:
“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.”
The result in Harris was not unexpected. One can argue that the Supreme Court merely applied clearly-established law that probable cause is a “common-sensical standard.”
Though the case may be viewed as a victory for detector dog teams — and it certainly is such — there is much to be learned from a careful reading of the Harris opinion. The defendant still may vigorously cross-examine the dog handler and may call witnesses, including expert witnesses, to challenge the dog’s reliability.
Detector dog certification and training remain critical in establishing the dog’s reliability. Handlers must consider whether their detector dog team certification is from a “bona fide” certifying organization and whether the certification is consistent with generally-accepted standards.
Single-blind testing — where the handler and dog are tested without knowing whether target substances and odors are present or not — may well become a threshold question in assessing the validity of the certification trial.
Regular maintenance training, documented in adequate records, is also vital to a presumption of probable cause. Though Aldo and his handler had not completed a recent certification trial, there was abundant evidence of regular weekly training.
In the Harris case, the Supreme Court pointed to a recent training program that evaluated Aldo’s proficiency in locating the odors of controlled substances as substituting for formal certification following a trial.
The Court noted that the dog’s history in the field “may sometimes be relevant.” One occasional challenge to field reliability is expressed as handler cuing or whether a dog is “prompt dependent.”
Single-blind testing in a rigorous certification trial, conducted at prescribed intervals, by a reputable certification organization will go far to defeating such claims.
Looking Ahead...
The Supreme Court decision in Florida v. Harris reaffirms the value of detector dog teams as drug interdiction tools and gently reminds courts across the nation of the time-honored principles of probable cause to search.
At the same time, detector dog handlers, trainers, and the entire police service dog world should accept the case as an invitation for continuous improvement in training, record-keeping, and certification (Florida v. Harris, 2013 WL 598440 (U.S. 2013)).
The Supreme Court also heard arguments last fall in another Florida detector dog case, Florida v. Jardines. The Court is considering the question of whether the approach of a detector dog at the exterior of a home constitutes a search under the Fourth Amendment.
Court watchers are waiting to see how the Court applies precedent from Kyllo v. United States (holding that use of thermal imaging on the exterior of a home constitutes a search), as well as applying what Justice Alito called a “500-year history” of permitting officers to walk up to the front door and knock — with a dog at the officer’s side. A decision in that case is expected soon.
