The Supreme Court will hear a case this fall from Florida that challenges the use of drug-sniffing dogs to perform warrantless searches outside someone’s home to establish probable cause to enter the home and executive a full search of the premises. The case is Florida v Jardines.
The Miami-Dade Police Department got an unverified tip that marijuana was being grown in the home of Joelis Jardines in 2006. An officer took his drug-sniffing dog to the house and walked him around the outside and the dog “alerted” to the presence of drugs. The dog’s alert was then used to establish probable cause for a search warrant, which was issued and the police did find marijuana growing in the house. Jardines moved to have the evidence suppressed on the grounds that the use of a drug-sniffing dog was, in and of itself, a search under the 4th Amendment and that the police must first establish probable cause before conducting such a search.
The Florida trial court agreed and suppressed the evidence. The state appeals court overturned that decision and the Florida Supreme Court overturned the appeals court, ruling in favor of Jardines. The state of Florida then appealed to the SCOTUS, which agreed last week to hear the case. The Rutherford Institute filed an amicus brief in the case that points to studies showing that drug-sniffing dogs have an extremely high error rate, thus making them useless in establishing probable cause.
A new double-blind study recently sent shock waves throughout the law enforcement community,shaking pre-existing beliefs that dog alerts are generally reliable. Over the span of two days, 18 trained and certified drug detection canines and their handlers took part in a meticulously prepared experiment to study the influence of handler bias on narcotics detection dogs’ performance.
Experimenters told the human handlers that drugs might be present at the testing site, but in fact, there were no contraband drugs in any of the test areas. Thus, any alerts would be false alerts, and zero alerts would be considered a perfect score. Each team completed two five-minute searches in each of four search areas. The results were astonishing. The correct response rate was only 15% (21 clean runs); the error rate was 85% (123 runs). Only one dog of the 18 trained drug detection dogs did not falsely alert.
The Davis Study concluded that the enormous number of false alerts confirmed researchers’ hypothesis that handler beliefs influenced the reliability of the trained drug detection dogs. In general, a dog’s performance is not solelydependent on olfactory acuity. Context matters, and the interaction between training paradigm and the nature of the detection problem are cognitive factors that can impact performance. Dogs may thus be conditioned to respond to unintentional human cues. Human cues that direct dog responses without formal training include pointing, nodding, head turning, and gazing. Moreover, in the Davis Study, three handlers admitted to intentionally overly cueing their dogs to alert at certain locations.
Courts must understand that even highly trained dogs will respond to both intentional and unintentional handler cues. This inevitability taints the objectivity of the alert performance and imbeds bias in the dog’s decision-making and reasoning abilities. Other studies suggest that dog behavior is also affected by handler gender, personality and attentional cues such as eye contact and human eye, head and body orientation.
Justice Scalia may be the key to the outcome and he actually has a fairly good record when it comes to 4th Amendment issues. For example, he wrote the opinion in Kyllo v United States that the use of thermal imaging equipment outside the home to detect the use of grow lamps for marijuana was a search under the 4th amendment and required that probable cause be established before using it, rather than allowing the police to use that technique to establish probable cause to get a search warrant. Clarence Thomas was also on the right side of that one, along with Justices Ginsburg and Breyer. Justice Kennedy was on the wrong side.
And by the way, the Obama administration is, as it has been in every 4th amendment case I know of, firmly on the wrong side. They’ve filed a brief supporting the state of Florida and urging the court to overturn the ruling and allow such searches without a warrant.