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.
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).