Analysis
Expressing considerable confidence that trained drug-sniffing dogs are reliable, and showing specific respect for one Florida police dog — Aldo — the Supreme Court on Tuesday made it quite easy for police officers to search a car or truck for drugs once a canine snooper has “alerted” to a smell on the vehicle. If the police offer evidence that a dog has been trained, or got a certificate from a training agency, that may well be enough to give police permission to turn an “alert” into a search of a vehicle, the Court said in a unanimous decision written by Justice Elena Kagan (Florida v. Harris, docket 11-817).
The Court specifically rejected a very detailed checklist of proof of a dog’s reliability that the Florida Supreme Court had drawn up before a court could treat a dog’s signaling of the presence of a drug odor as the equivalent of “probable cause” to search. In place of such a checklist, the Court set up a “reasonably prudent person” test — that is, a common-sense review of all of the facts about a dog’s alert, to see if such a prudent person would think that a search would turn up evidence of illegal drugs. “A sniff is up to snuff when it meets that test,” Kagan cleverly summed up.
While suggesting strongly that evidence of training is enough, without an elaborate inquiry into how the dog had performed in the field, the Court did stress that a person accused of having illegal drugs based on a dog’s alert must have the opportunity in court to challenge the dependability of the training evidence and to test whether the police handler might have “cued” the dog to make an alert. Thus, the bottom line of the ruling was that the dog does not always win, if the accused individual can undercut its training record.
Over the years, the Supreme Court has ruled repeatedly that police may often use a drug-sniffing dog to check out a suspicious area or object, and do so without a warrant, but those decisions did not relax the constitutional requirement that police must have “probable cause” to make a search. The Court, in Tuesday’s decision, assumed that the “probable cause” requirement remained intact, but then filled in any blanks about when and whether a police dog’s alert would satisfy that requirement.
The issue arose in the case of a Blountstown, Florida, man, Clayton Harris, who apparently was addicted to methamphetamine. On June 24, 2006, he was driving his truck when a canine officer, noticing that the truck’s license plate had expired, pulled Harris over. Because Harris appeared nervous and disoriented, and because he had refused permission to search his truck, the officer let Aldo walk around the vehicle. The dog signaled that there was a suspicious odor on the driver-side door’s handle.
Taking that as sufficient reason for a search, the officer checked out the interior of the vehicle, turning up materials known to police as the ingredients for making methamphetamine. Harris was told of his legal rights. He told the officer he was addicted to the drug, and had been “cooking” it recently. His lawyers sought to bar from the trial the evidence of the drug-making materials, but the judge rejected the challenge. Harris then entered a no-contest plea, but kept open the right to challenge the justification for the search. He was sentenced to two years in prison and five years on probation.
The Florida Supreme Court, on his appeal, ruled that the alert made by Aldo was not reliable, because Aldo had not been proved to be fully dependable. It then created a detailed list of proof that police would have to show before a dog’s alert could be credited as justification for a search. That is the result that the Supreme Court overturned Tuesday.
One key facet of the state court’s list was proof about the dog’s past performance of “hits” and “misses” in detecting drug smells.
Justice Kagan wrote: “A finding of a drug-detection dog’s reliability cannot depend upon the state’s satisfaction of multiple, independent evidentiary requirements. No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause.”
In describing how a court should now proceed to evaluate whether a dog’s alert did constitute “probable cause,” the Kagan opinion said that the court should allow both sides — the police and the accused — “to make their best case,” and then determine whether the particular sniff had satisfied the Court’s new “common sense/prudent person” standard.
As for Aldo and this particular alert, the Court said that the dog’s training record “sufficed to establish” his reliability on that occasion.
(NOTE TO READERS: On the same day in October that the Court held a hearing on the Harris case, it also heard argument on a second dog-sniffing case. That case, not yet decided, is Florida v. Jardines, 11-564. That case tests whether police without a warrant may use a drug-detecting dog to check out the front porch and door of a home suspected of being used for illegal drug activity.)
The Court’s decision, in plain English:
Police departments across the country make use of trained dogs for a variety of law-enforcement tasks, including investigation in potential drug-trafficking cases. Dogs can be trained to react, by specific kinds of movements, when they smell an odor that emanates from a stash of drugs. Such dogs, in fact, do not smell drugs; they smell odors. When they show that they have picked up the scent, that usually leads the police officers to follow up with a search to see if drugs are, in fact, present in such a spot.
Normally, police can use a drug-sniffing dog without having to get a search warrant from a judge, especially if the officers are making a field investigation in situations where the evidence might get away if the police don’t act on the spot. That happened in the Florida case that the Justices decided on Tuesday. An officer with a canine partner had stopped a truck for a minor traffic violation, and sensed that the driver might be on drugs. Because the truck’s driver refused to let the officer search the truck, the officer led the dog, named Aldo, around the exterior of the vehicle. The dog made movements that showed he smelled something suspicious on the driver-side door handle. Taking that as a signal that drugs were inside the truck, the officer checked out the interior, and found a stash of drug-making equipment.
Ultimately, the individual was convicted on his plea of no-contest, but he still had the opportunity to argue that the officer had no justification for the search because the dog was not a reliable drug-detector. The Florida Supreme Court agreed with the challenge, and laid down a specific set of proofs that police would have to offer in order to justify a search based on a dog’s “alert.” The Supreme Court cast aside that checklist, and said courts should use a common-sense approach, looking at all the facts and circumstances to see if the dog had been trained to do what the police claimed it could do.
The decision was unanimous, thus upholding the conviction in the case of Floridian Clayton Harris.
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