Supreme Court Analyzes Major Fourth Amendment Issues in Dog-Sniff Cases
Written by Richard G. Schott, J.D.   

On October 31, 2012, the U.S. Supreme Court heard oral arguments in two separate cases from Florida, each presenting a different constitutional issue involved in law enforcement agencies’ use of drug-sniffing canines. The fact that the Court granted certiorari for both cases in the same term and entertained oral arguments for them on the same day caused some pundits to comment that the Court had “gone to the dogs” or had experienced a “dog-day afternoon.” These cases, however, because of the underlying issues involved, were no laughing matter to the law enforcement community.

One of the two cases involved whether probable cause—a bedrock Fourth Amendment concern—existed at the time law enforcement action (the dog sniff) was taken. The second examined whether a search under the Fourth Amendment even had occurred when a drug-sniffing dog alerted to the presence of contraband outside a homeowner’s front door. Clearly, these two cases have the potential to greatly impact how departments employ drug-sniffing canines.

Florida v. Harris

On February 19, 2013, the U.S. Supreme Court decided the first of the two dog-sniffing cases. In Florida v. Harris a Liberty County, Florida, Sheriff’s Department K-9 officer on patrol with his German shepherd trained to detect certain narcotics pulled over Clayton Harris because the license plate on his truck had expired. When the deputy noticed that Harris was “visibly nervous” (could not sit still and was shaking and breathing rapidly) and had an open can of beer in his truck, he asked for consent to search the vehicle. When Harris refused, the deputy had the German shepherd, Aldo, perform a “free-air sniff” outside the truck. When Aldo gave a positive alert to the presence of drugs, the deputy concluded that he now had probable cause to search the vehicle, even without Harris’ consent. Although the search did not reveal any of the drugs Aldo was trained to detect, it produced 200 loose pseudoephedrine pills; 8,000 matches; hydrochloric acid; antifreeze; and a coffee filter full of iodine crystals, all necessary for making methamphetamine. Subsequently, Harris was charged with possessing pseudoephedrine for use in manufacturing methamphetamine. Ironically, while Harris was free on bail, the same deputy (again accompanied by his canine partner) pulled Harris over for a traffic violation. Again, Aldo performed a sniff and alerted to the presence of contraband. The deputy again searched Harris’ vehicle based on the alert, but located nothing of evidentiary value.

Both dog-sniff cases set forth straightforward guidance for canine handlers.

Harris moved to suppress the evidence recovered in the first search on the grounds that the dog alert indicating the presence of narcotics did not provide the deputy with probable cause, which, in turn, had allowed the search. His argument was based not on the quality of training received by Aldo and his handler but on Aldo’s certification and performance in the field—particularly, the two stops of Harris’ “seemingly narcotics-free” truck. At the hearing to settle the issue, testimony revealed that Aldo’s certification (which Florida law did not require) had expired the year before the relevant stop involving Harris and that Aldo’s handler did not keep complete records of Aldo’s performance in the field. Rather, only records of alerts resulting in arrests were maintained.

After the Florida trial and appellate courts concluded that the dog alert provided probable cause to believe there was evidence in Harris’ truck (which, in turn, allowed the search), the Florida Supreme Court reversed the decision, troubled both by what was and was not presented during the suppression hearing. First, according to Florida’s highest court, “…the fact that a dog has been trained and certified is simply not enough to establish probable cause.” Rather, that court mandated a rigid checklist approach to satisfying probable cause in such cases, stating: “[T]he state must present…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.” The Florida high court was especially concerned with the need for “evidence of the dog’s performance history” and “how often the dog has alerted in the field without illegal contraband having been found” because that data could help reveal such problems as a handler’s conscious or unconscious tendency to “cue [a] dog to alert” and a “dog’s inability to distinguish between residual odors and actual drugs.” Because of the rigidity of its test, the Florida Supreme Court mandate would dictate that “an officer…who did not keep full records of his dog’s field performance could never have the requisite cause to think ‘that the dog is a reliable indicator of drugs.’”

Read the full article here.

Source: FBI Law Enforcement Bulletin

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