The Supreme Court handed down its ruling in Florida v Harris, a case challenging the use of drug dogs to establish probable cause. The early date of the ruling suggested that it was a lopsided decision and that would indicate that it went the wrong way, and that is exactly the case. In a 9-0 ruling authored by Justice Sotomayor, the justices essentially concluded that a drug dog’s “alert” was presumed to establish probable cause.
In this case, the Florida Supreme Court had set some fairly strict standards for when a drug dog’s alert would be considered presumptively valid. Here is the description of the Florida ruling from the syllabus of the SCOTUS opinion:
At a suppression hearing, Wheetley testified about his and Aldo’s extensive training in drug detection. Harris’s attorney did not contest the quality of that training, focusing instead on Aldo’s certification and performance in the field, particularly in the two stops of Harris’s truck. The trial court denied the motion to suppress, but the Florida Supreme Court reversed. It held that a wide array of evidence was always necessary to establish probable cause, including field performance records showing how many times the dog has falsely alerted. If an officer like Wheetley failed to keep such records, he could never have probable cause to think the dog a reliable indicator of drugs.
But the court rejected that position, saying in essence that a drug dog that has a valid certification should be presumed to be accurate and therefore able to establish probable cause for a full vehicle search, but that the defense can challenge that with specific pieces of evidence.
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…
A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged.
So the burden of proof is on the defendant to prove that this particular drug dog is often wrong and therefore there should be no presumption of probable cause in the case. That’s backwards, of course. The burden of proof should always be on the government to show that the evidence they claim to have is valid.
One wonders if the overwhelming evidence that drug dogs in general are unreliable, that they alert a huge percentage of the time even if there are no drugs present, both in controlled tests and in the real world, would be considered adequate evidence against a specific alert by a specific dog. It certainly should be. This text suggests that it would not, since the court seems to conclude that even evidence of a specific dog’s inaccuracies in actual traffic stops is not evidence of that dog’s inaccuracy.
The Florida Supreme Court flouted this established approach by creating a strict evidentiary checklist to assess a drug-detection dog’s reliability. Requiring the State to introduce comprehensive documentation of the dog’s prior hits and misses in the field, and holding that absent field records will preclude a finding of probable cause no
matter how much other proof the State offers, is the antithesis of a totality-of-the-circumstances approach. This is made worse by the State Supreme Court’s treatment of field-performance records as the evidentiary gold standard when, in fact, such data may not capture a dog’s false negatives or may markedly overstate a dog’s false positives. Such inaccuracies do not taint records of a dog’s performance in standard training and certification settings, making that performance a better measure of a dog’s reliability. Field records may sometimes be relevant, but the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.
For example, in a survey of drug dogs used by police departments in suburban Chicago published last year, the Chicago Tribune found that when a police dog alerted to the presence of drugs during a traffic stop, a subsequent search turned up narcotics just 44 percent of the time. In stops involving Hispanic drivers, the dogs’ success rate dropped to 27 percent.
This raises some interesting questions: Why are drug dogs more likely to submit an innocent motorist to the indignity of a thorough roadside search if the motorist happens to be Hispanic? Are drug dogs racist? Do they racially profile? Of course not. But their handlers probably do.
Consider another study conducted by Lisa Lit, a neurologist and former dog handler at the University of California-Davis. Lit brought 18 dog/handler teams currently operating in law enforcement agencies to an empty church. Each team conducted eight searches, each lasting about five minutes. If they were accurate, none of the dog/handler teams should have alerted in any of the searches. There were no drugs or explosives anywhere in the church.
But Lit had set some traps. The handlers were told that each search could have as many as three “target scents” — drugs for the drug dog teams, or explosives for the explosive dog teams. The handlers were told that in some cases hot packages were indicated by a piece of red paper. These red paper packages were designed to trick the handlers. Lit also set a trap for the dogs: Some of the packages contained unwrapped sausages.
The results were striking. The dogs falsely alerted in 123 of the 144 total searches. Because some dogs falsely alerted more than once in the same search, the total number of false alerts was 225. The dogs correctly completed the search without an alert just 21 times, for a success rate of 14.5 percent.
But here’s the more interesting part: The dogs were about twice as likely to falsely alert at the packages designed to trick their handlers than they were at the packages stuffed with sausages.
But the Supreme Court doesn’t seem to care about such studies. As long as the dog was certified, and thus presumably did well in the testing phase of the certification program, then highly inaccurate results in the real world don’t seem to matter. But who does the certification? Either a private company that likely trains and sells the dogs to the police or the police departments themselves, both of which have a clear vested interest in maintaining the fiction that drug dogs are accurate and reliable.
This is a terrible ruling, one that makes a mockery of the 4th Amendment. And as usual, the Obama administration was on the wrong side.