Scooby Can Search For Snacks (Drug Dogs)

Whitfield

Whitfield Hyman contributed while studying at the University of Arkansas School of Law.

Last Halloween the Supreme Court heard oral arguments on the spooky case of Florida v. Harris. The Court was trying to decide whether or not an alert by an (allegedly) well trained and certified drug sniffing dog was sufficient to establish probable cause for the police to search a vehicle. The story began when Clayton Harris (who I can only assume is a Rhodes Scholar/Mensa member) decided to “ride dirty” with expired tags and an open beer in the cup holder (probably PBR). After a shaking and visibly nervous Harris denied the officer’s request to search, Officer Wheetley retrieved his canine companion from the police vehicle and conducted a “free air-sniff” around Harris’ car. The drug sniffing dog (who had been certified for over two years and had spent the last year with Wheetley) alerted to the presence of drugs on the driver’s side door handle.

It turned out that Harris was riding around with over 200 pseudoephedrine pills, over 8,000 matches, a bottle of hydrochloric acid, two containers of antifreeze, and a coffee filter full of iodine crystals (all ingredients used to create Walter White’s infamous methamphetamine). The problem is, Aldo wasn’t trained to detect those items, only post-manufactured methamphetamine.

Harris was arrested and actually admitted that he was going to use that material to make meth and that he could not go more than a few days without a fix. However, two months after this stop, Harris got pulled over by Wheetley AGAIN! Like last time, Aldo (Wheetley’s drug sniffing dog) alerted that he smelled drugs on the door handle of the vehicle, but unlike last time, Aldo was wrong. This got Harris to thinking (well, let’s be honest, this got Harris’ LAWYER to thinking), how reliable is this particular drug dog and drug sniffing dogs in general? If they are statistically unreliable then how can police establish the sufficient probable cause to search a vehicle? Officer Wheetley testified that Aldo always earned satisfactory marks in training, but he did not keep a record of Aldo’s field accuracy. Aldo could have been smelling residual narcotic odors left from the hands of the driver.

The trial court and Florida’s First District Court of Appeals held that Officer Wheetley had probable cause to search the truck based on the three indicators: 1) an expired tag, 2) an open beer container, 3) Harris’s jittery and nervous behavior, and 3) the alert by a trained and certified drug-detection dog. Then the Florida Supreme Court reversed the decision, saying the evidence (the 200 pills, matches, and acid) should be suppressed because there were no records of the drug sniffing dog’s reliability in the field.

The U.S. Supreme Court unanimously reversed the Florida Supreme Court saying that “fair probability” on “whether all the facts surrounding the 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” is all that is required for probable cause. The Court looks at the totality of the circumstances and rejects rigid rules and bright-line tests. Florida’s Supremes created an “evidentiary checklist” which flies in the face of prior 4th Amendment case law. “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.” Notably, Justice Kagan’s unanimous opinion scoffed at Florida’s idea that field records would be better than training records because they would not take into a account “false negatives” (where the dog does not alert and there are drugs in the vehicle) and “overstate false positives” (where the dog alerts but it did not actually detect drugs).

Finally, the Justices did outline how to appropriately challenge whether or not the police had established probable cause to search a car after a drug dog alerts:

“If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, the court should find probable cause. But a defendant 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 may contest training or testing standards as flawed or too lax, or raise an issue regarding the particular alert.”

Harris would have gotten away with it…if it weren’t for those meddling Justices!

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