February 21, 2013
These dogs are trained to recognize the smell of specific narcotics and subsequently alert a police officer through a distinctive set of behaviors when one of those recognized drug scents is detected.
But, when the dog alerts the officer, how do we know if the dog has truly detected the drugs that it has been trained to?
On Tuesday, the Supreme Court addressed that very issue in the Florida v. Harris ruling.
Harris began on June 24, 2006, when the defendant, Clayton Harris, was stopped by a police officer for an expired license plate.
Upon approaching Harris, the police officer noted that he was “visibly nervous, unable to sit still, shaking, and breathing rapidly.”
The officer then asked for consent to search the vehicle, which Harris refused. After that, the officer retrieved his police dog, Aldo, a German shepherd trained to detect certain narcotics (methamphetamine, marijuana, cocaine, heroin, and ecstasy),” and walked the dog around Harris’s car to conduct a “free air sniff” (the dog does not sniff inside of the car, but the air around the car).
During the course of this sniff, Aldo alerted the officer that he smelled drugs on the car’s driver’s-side door handle. This alert primarily served as the basis for the officer’s belief that he had probable cause to search the vehicle, which he thereafter did.
The search didn’t turn up any of the drugs that Aldo had been trained to detect, but the officer did find large quantities of ingredients used in making methamphetamine, which (after proper Miranda warnings) Harris admitted that he regularly “cooked” and that he could not go “more than a few days without using” it.
But that wasn’t the end of Harris’s dealings with Aldo. Later, when Harris was out on bail, the same police officer stopped him again and conducted another free air sniff around the car with Aldo. Once again, Aldo alerted the officer that he smelled drugs on the car’s driver’s-side door handle. This time, however, the officer discovered nothing of interest.
Harris later moved to suppress the evidence of the meth ingredients found in his truck on the ground that Aldo’s alert was insufficient to provide the officer with probable cause for a search.
At the motion hearing, the officer testified about both his and Aldo’s training in drug detection, including about different certifications and field training.
On cross-examination, however, the officer revealed that he did not keep complete records of Aldo’s actual performance in the field, but only of Aldo’s alerts that resulted in an arrest. The officer also defended Aldo’s alert of Harris’s seemingly narcotics-free vehicle, saying that Harris probably transferred the odor of methamphetamine to the door handle, and Aldo responded to that “residual odor.”
Hot Doc: Florida v. Harris
The motion was denied by the trial court, and the denial was affirmed on appeal, but the Florida Supreme Court reversed, finding the officer lacked probable cause, specifically because the officer lacked strong “evidence of the dog’s performance history,” including records showing “how often the dog has alerted in the field without illegal contraband having been found.”
The U.S. Supreme Court reversed, finding the Florida high court’s prescriptions to be “an inflexible set of evidentiary requirements” and that “a probable-cause hearing focusing on a dog’s alert should proceed much like any other,” that is, with each party presenting its evidence to the court, and the court weighing such evidence.
Instead of the Florida Supreme Court’s requirements relating to a drug-sniffing dog’s reliability, the U.S. Supreme Court held that the state must only produce “proof from controlled settings that a dog performs reliably in detecting drugs.” If the defendant is unable to rebut that showing, “then the court should find probable cause.”
The Court further addressed the seeming “false alerts” by Aldo of Harris’s car, stating that “Aldo likely responded to odors that Harris had transferred to the driver’s-side door handle of his truck,” and further commented that, rather than the incidents evidencing mistakes on Aldo’s part, it instead demonstrated a particularly high level of skill by the dog.
I’m no expert in methamphetamine and the science behind, and so I have no idea whether meth odor would linger on a car door handle for days or possibly weeks such that it were still discernible by a drug-sniffing dog.
But I do know that it’s unlikely that your average layperson would be able to recognize the “distinctive set of behaviors” that a drug-sniffing dog exhibits when it provides the alert that it has detected drugs.
And I also know that it’s difficult to ascertain whether the probable cause determination was made by law enforcement after the search had been conducted and the contraband found.
Because of the subjective nature of dog-sniffing cues, this ruling may well make it even more difficult to verify that an officer had probable cause prior to the search.
Unfortunately, this also means that the “probable cause” safeguard imposed by the Fourth Amendment is further weakened by this ruling.