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As that example suggests, distracting smells, such as the tennis balls and Slim Jims in the Lit study, also contribute to false alerts. A 13-year-old girl who was strip-searched as a result of a mistaken dog alert during a 1979 inspection of her junior high school in Highland, Indiana, apparently attracted the animal’s attention because she had been playing earlier that day with her own dog, which was in heat. The Sydney Morning Herald interviewed a college student who was searched at a train station after a police dog sat down next to him; the cops found a package of dog treats in his pocket. Bob Burns remembers an incident from his years as an Air Force M.P. when a dog alerted to a locker that contained not drugs but a wastebasket with a tuna can at the bottom that an officer had hidden to avoid having to clean it for a room inspection. “The dog was just hungry,” Burns says. “There was a lot of embarrassment all around.”
Sometimes the right smell comes from the wrong thing. Many dogs trained to detect cocaine actually react to methyl benzoate, a volatile byproduct of black-market cocaine that is also an ingredient in perfume, solvents, and insecticide. A girl whose purse was searched due to a dog alert during a 1978 sweep of her high school in Goose Creek, South Carolina, turned out to be carrying a small bottle of perfume. Similarly, acetic acid, which is what dogs smell when they smell heroin, is found in vinegar, various food products, and some kinds of glue; the same odor can be emitted by prescription drugs when they are exposed to air. Piperonal, a smell that dogs associate with MDMA, is used in artificial flavors, perfume, and mosquito repellant. Dogs also may have trouble distinguishing the smell of marijuana from the odors of fir and juniper trees.
Given all these potential sources of error, how does a judge know when a dog’s alert is reliable enough to justify a search? In Harris’ case, the Florida Supreme Court concluded that the search of his truck was illegal because the evidence presented to demonstrate Aldo’s reliability was inadequate. The court wanted more information about Aldo’s training and certification—an important issue because Florida, like most states, has no uniform standards for drug-detecting dogs. The court also wanted more details about Aldo’s performance on tests (“really good,” according to Wheetley). And it wanted to know his record in the field, a question Wheetley could not answer because he does not keep track of erroneous alerts. After all, who would be interested in such information?
‘A Search Warrant on a Leash’
Challenging the reversal of Harris’ conviction before the U.S. Supreme Court, the state of Florida (joined by the Obama administration) argued, in effect, that judges should automatically accept a police dog as reliable. “The handlers themselves are going to be in the best position to know the dogs and evaluate their reliability,” Gregory Garre, the lawyer representing Florida, told the Court in October, “and they have a strong incentive to ensure the dogs are reliable.” So according to Garre, if a cop trying to justify a search vouches for the reliability of a dog whose alert supposedly justifies that search, there is no reason to question him.
Garre argued that “the most important thing” in judging a dog’s reliability “is successful completion of proficiency testing.” How does a judge know a dog has successfully completed proficiency testing? Because the police say so. When training is done by “actual police departments,” Garre said, “this Court ordinarily would presume regularity.” And what constitutes “regularity” when there are no uniform standards? “We would ask whether or not the dog successfully completed training by a bona fide organization,” Garre said. “We don’t think it’s an appropriate role for the court to delve into the contours of the training.…You would have to accept it…on its face.”
And why wouldn’t you? After all, Justice Antonin Scalia observed, “if the reasonableness of a search depended upon some evidence given by a medical doctor, the court would not go back and examine how well that doctor was trained at Harvard Medical School.” Then again, Harvard Medical School, unlike a police department’s dog training program, is accredited, based on uniform national criteria, by the American Association of Medical Colleges, and its graduates must satisfy objective, transparent tests to be licensed and certified in their specialties. Furthermore, unlike police dogs, doctors can talk, which means they can testify and be cross-examined regarding their qualifications and the reasons for their conclusions.
Scalia seemed genuinely flabbergasted not only by the idea that a dog might be inadequately trained but also by the suggestion that police might exaggerate a dog’s reliability. “Why would a police department want to use an incompetent dog?” he asked Glen Gifford, the assistant public defender representing Harris. “What incentive is there for a police department?” Gifford patiently explained that “the incentive is to acquire probable cause to search when it wouldn’t otherwise be available.”
It should be obvious why a police officer might value a dog that alerts promiscuously, giving him license to search anyone he deems suspicious. “It’s a search warrant on a leash,” Myers says. “It’s such an enormous back-door entry into search and seizure without a warrant.”
A brief filed by the Institute for Justice in Harris highlights another motive: If a dog’s alert justifies a search, it can also justify seizure of property allegedly tainted by illegal drugs. “There are countless examples of police seizing large sums of cash based on nothing more than a positive dog alert,” the brief notes, even though contamination of currency with cocaine and other drugs appears to be pervasive. Since police departments typically share the proceeds from civil forfeiture, they have a direct financial interest in dogs that facilitate it.
Yet few of the justices seemed inclined to elaborate on the distinction between “a well-trained narcotics detection dog,” entrusted with the power to authorize searches and seizures, and any old dog grabbed from the pound by a police department and presented as such. Jeff Weiner, the Florida defense attorney, says, “I only hope the Court will realize how incredibly naïve they have been and how they have given law enforcement a green light to do away with the Fourth Amendment merely by uttering the magic words, ‘My dog alerted.’ ”
Judges around the country commonly accept a dog’s alert, by itself, as sufficient basis for a search, but the Supreme Court has never explicitly said it is, although passing comments in a couple of decisions can be read that way. Furthermore, the Court has always resisted precisely defining probable cause, the standard for issuing a warrant (or for upholding a car search, which can be conducted without a warrant but is supposed to meet the same test). Probable cause, the Court has said, means there is “a fair probability” that evidence of a crime will be discovered. It is not clear how reliable a dog must be to satisfy that standard. A 4 percent chance of finding contraband based on a dog’s alert, as in the Florida roadblock operation, presumably would be too low. What about a 20 percent chance, as in the latest data from New South Wales, or a 44 percent chance, as in the Chicago Tribune study?
“Who determines when a dog’s reliability in alerting has reached a critical failure number?” Justice Sonia Sotomayor asked during the oral arguments in Harris. “I’m deeply troubled by a dog that [accurately] alerts only 12 percent of the time.…That seems like less than probability.” Gifford observed that “in the lower courts, once you get below 50 percent, probable cause is much less likely to be found.” The 2006 Australian study found that the accuracy of 17 police dogs used to sniff out drugs on people ranged from 7 percent to 56 percent. This wide variation underlines the importance of assessing the ability of each dog-and-handler team on an individual basis, rather than accepting blanket assurances that all dogs and handlers have been properly trained.
‘Franky’s Nose Is Not Technology’
While the Supreme Court seemed reluctant to require greater skepticism of such claims, the justices were more receptive to concerns about using dogs to identify homes containing drugs. In fact, Scalia, the justice who was most clearly hostile to questions about police dogs’ professional credentials in Florida v. Harris, was the one who was most indignant about bringing them to people’s doorsteps without a warrant in Florida v. Jardines.