A dog's "sniff is up to snuff" wrote Justice Kagan in an
unanimous decision by the Supreme Court that gives law enforcement greater
authority to use drug sniffing dogs to establish probable cause for a
search. See
Florida v. Harris, No. 11-817 (Feb. 19, 2013).
The case centered upon a drug-sniffing German shepherd named Aldo and a
defendant named Clayton Harris. Mr. Harris was pulled over by Florida
police officer William Wheetley for an expired license plate. According
to the police officer, Mr. Harris was nervous and shaking and refused
to give consent for the officer to search his vehicle. Officer Wheetley
then brought out Aldo, who gave an alert to drugs on the driver's
side door handle. Using the dog's alert to establish probable cause,
the police officer searched the truck. The search did not uncover any
of the drugs that Aldo was trained to detect, but Officer Wheetley did
find about 200 pseudoephedrine pills and other ingredients used to make
methamphetamine. After receiving his Miranda warnings, Mr. Harris admitted
that he regularly made and used methamphetamines.
While out on bail, Officer Wheetley again pulled over Mr. Harris's
vehicle. This time it was for a broken brake light. Aldo again alerted
for drugs on the driver's side door handle. However, a thorough search
uncovered no drugs.
Mr. Harris pled no contest to the methamphetamine charges but retained
his right to appeal based on the original search.
The Florida Supreme Court held that the search of Mr. Harris's truck
was unconstitutional because the State was unable to provide evidence
of Aldo's "hits" and "misses" in the field, which
would point to the dog's reliability.
"A sniff is up to snuff when it meets that test. And here, Aldo's
did." – Supreme Court Justice Elena Kagan
The Supreme Court, in a unanimous decision, overturned the Florida Supreme
Court's decision holding that the state does not need to establish
the dog's field history to establish probable cause. It may be enough
to establish a dog's reliability with evidence that the dog has satisfactorily
completed a training program or been certified by a bona fide organization.
"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," Justice
Kagan wrote. "A sniff is up to snuff when it meets that test. And
here, Aldo's did."
What does this decision mean for the average citizen's 4th Amendment
rights? If a person refuses a police officer's request to search his
or her vehicle, in many cases, the police officer then becomes more suspicious.
A drug sniffing dog can then be brought in and if it alerts, the police
can search. But how reliable is a drug sniffing dog? What if the dog passed
a training class but now always alerts even when there are no drugs? Can
the dog "sense" when its handler wants it to alert? How can
the dog be cross-examined?
As the New Jersey Today and the New Yorker cited, some studies indicate
that even trained dogs and experienced handlers are rarely accurate. A
2011 study published in Animal Cognition involved a number of tests, some
of which were designed to fool the dog and some to fool the dog handler.
The dogs in these tests falsely alerted 123 out of a total of 144 times.
When the test was designed to fool the dog handler, the dog was actually
twice as likely to falsely alert.
As the Animal Cognition study shows,
dogs are greatly influenced by their handlers. If an officer believes drugs are present,
he may cue his dog —consciously or unconsciously—to alert.
Another Florida dog case will be decided soon by the Supreme Court. In
that case, a chocolate Labrador named Franky alerted for drugs after sniffing
on the doorstep of a private home. The search uncovered marijuana growing
inside. At oral arguments, several justices questioned whether using drug
sniffing dogs outside of a residence could infringe on the expectations
of privacy that people have in their homes. Stay tuned to see if a canine's
sniff is up to snuff even inside your private home. (Florida v. Jardines).