The United States Supreme Court has issued a unanimous ruling on the issue of drug sniffing police dogs and the 4th amendment. The decision reversed a ruling from the Florida Supreme Court in the case of Florida v. Harris.
The defendant in the case was a man named Clayton Harris of Blountstown, Florida.
On June 24, 2006 he was driving in his truck when a canine officer named Wheetley noticed his license tags had expired so he pulled Harris over. Upon doing so Wheetley noticed that Harris was disoriented and Harris refused to allow the truck to be searched. So he decided to have his dog Aldo take a walk around the truck and the dog “alerted” to a suspicious odor on the driver’s door handle.
Based on this alert Wheetley searched the truck but did not find any substances that Aldo was trained to detect. He did however discover items commonly used to produce methamphetamine. While these substances did have innocent uses the combination of them and the volume strongly suggested improper purposes. Harris was arrested and after being given his proper Miranda warnings he admitted to having produced the drugs.
While out on bail Wheetley again encountered Harris, pulling him over for a broken brake light. Aldo was again used to search the vehicle and again alerted to the presence of drugs but this time nothing of any significance was found.
At trial Harris’s attorneys sought to exclude the evidence found in the truck on the grounds that probable cause had not been established and thus his 4th amendment rights were violated
Evidence was entered with regard to the training of both Wheetley and Aldo. In 2004, Wheetley (and a different dog) completed a 160-hour course in narcotics detection offered by the Dothan, Alabama Police Department, while Aldo (and a different handler) completed a similar, 120-hour course given by the Apopka, Florida Police Department.
In 2005 Aldo and Wheetley had trained together in a 40 hour refresher course and also engaged in weekly tests and training.
On cross examination Harris’s attorney chose not to question the extent of the training but instead focused on Aldo’s actual performance in the field (especially the two stops involving Harris) as well as Aldo’s certification (which had expired).
The court ruled against Harris and denied a motion to suppress the evidence. Harris then entered into a plea bargain which sentenced him to a 2 year prison term but allowed him to continue to challenge the search and seizure issue.
The Florida Supreme Court sided with Harris ruling that there was not probable cause for the officer to carry out the search. They also ruled that in order for there to be probable cause based on a drug sniffing dog the state must submit an detailed report demonstrating not only the training of the dog but also showing his track record.
The court felt that this detailed performance record was important to allow the court to determine things like whether the dog was unconsciously influenced by his handler or simply lacked the proper skills. Looking to Harris the court held that
“Accordingly, an officer like Wheetley who did not keep full records of his dog’s field performance could never have the requisite cause to think “that the dog is a reliable indicator of drugs.”
The US Supreme Court unanimously overturned this ruling and found that such a list was not required.
Writing for the court Justice Kagan reviewed the general rules of police searches which hold that
“A police officer has probable cause to conduct a search when the facts available to [him] would warrant a [person] of reasonable caution in the belief that contraband and/or evidence of a crime is present.”
She went on to cite prior rulings which held that in such cases there is no need for reasonable doubt or preponderance of evidence but simply a reasonable basis for such a conclusion.
Since this standard applies to humans the court concluded that requiring a higher standard (such as the detailed report of past performance/etc) in the search dog was not reasonable.
The court accepted that the defendant would have the right to confront the witness (IE the dog) in court and concluded that they could do so by reviewing the training records as well as cross examine the trainer about past performance. Because of this the need for a detailed list was unwarranted.
In considering this ruling I find myself troubled. Certainly there is no doubt that Mr. Harris is a scumbag who deserved to go to prison. But the idea that a dog, who cannot be cross examined in court can act to provide probable cause is disturbing.
Let us take a moment to consider the words of the 4th amendment which states
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
Reading the text it seems pretty clear to me that the language requires not only probable cause on oath but also specific description of the things to be searched.
In this case it is obviously impossible for the dog to make an oath or affirmation to provide probable cause and there certainly was no warrant issued. Furthermore the dog seems to have been wrong since no drugs were found in the truck, merely the ingredients to make drugs. I’m hardly an expert but one presumes there could be other purposes for such substances and that they are not illegal in and of themselves.
Of course there are exceptions to this rule. The most common being some sort of emergency (commonly called exigent circumstances) where there is not sufficient time for a warrant to be issued. But this does not seem to be that kind of a case.
Certainly the officer in question had good cause to pull the suspect over since he had expired tags. And once he did so the fact that the driver was behaving as if he were under the influence would give the officer more than sufficient cause to detain him and to seize the vehicle. At that point there would be more than sufficient time for the issuance of a warrant based on the testimony of the *officer*.
The facts of the case show that Mr. Harris had a history of addiction and was behaving in a manner strongly suggesting intoxication and/or being under the influence of drugs. This would seem to be more than sufficient for a court to have issued a warrant. There is also the possibility of an inventory search when the vehicle was towed which could have provided further assistance.
In short my concern with the situation is not so much whether a detailed list is required for a dog but rather whether or not a dog should be able to provide probable cause under any circumstances.
The court has also heard arguments on a case involving the use of a drug sniffing dog to check out the porch and front door of a house to try and obtain probable case for a search. That case, Florida v. Jardines has not been decided yet but could well yield a different result.