SCOTUS Will Consider Dogs' Reliability As Probable Cause Generators

This week the Supreme Court agreed to hear a case that casts doubt on the routine use of drug-sniffing dogs to generate probable cause for vehicle searches. Despite the potential for false positives due to poorly trained dogs, incompetent handlers, residual odors, subconscious cues, and misinterpretation (or misrepresentation) of a dog's behavior, courts generally accept a canine "alert" as adequate justification for a search. But last year the Florida Supreme Court ruled that the Fourth Amendment requires courts to consider the reliability of such evidence and that it's not enough to ask whether a dog is officially certified to sniff out drugs:

The issue of when a dog's alert provides probable cause for a search hinges on the dog's reliability as a detector of illegal substances within the vehicle. We hold that the State may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dog's reliability....

We hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog's reliability for purposes of determining probable cause—especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them....

To meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal substances within the vehicle....

Because there is no uniform standard for training and certification of drug-detection dogs, the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts). "Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures ("unverified" alerts where no contraband that the dog was trained to detect was found). The State then has the opportunity to present evidence explaining the significance of any unverified alerts, as well as the dog's ability to detect or distinguish residual odors. Finally, the State must present evidence of the experience and training of the officer handling the dog. Under a totality of the circumstances analysis, the court can then consider all of the presented evidence and evaluate the dog’s reliability.

Finding that prosecutors had failed to meet this burden in justifying a dog-triggered truck search that found 200 pseudoephedrine tablets (along with muriatic acid and 8,000 matches), the court threw out a meth manufacturing charge against the vehicle's driver.

Although the Supreme Court has issued several decisions dealing with police dogs over the years, it has not squarely addressed the question of their reliability. Dissenting in Illinois v. Caballes, a 2005 decision that allowed warrantless sniffs of cars during routine traffic stops, Justice David Souter noted that "the infallible dog...is a creature of legal fiction." Souter cited examples from court cases of dogs with error rates of up to 38 percent, adding that "dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of the time." Souter is no longer on the Court, but evidently at least some of the current justices see a need to re-examine the assumption that a canine alert "discloses only the presence or absence of narcotics," as the Court claimed in United States v. Place, a 1983 decision that allowed warrantless sniffs of luggage at airports on the theory that such examinations are not really searches. Maybe so, but they definitely lead to searches, and a careful consideration of whether and when they should is long overdue.

Another Florida case that the Supreme Court plans to hear, Florida v. Jardines, poses the question of whether a drug-sniffing dog at your doorstep has finally crossed the threshold of the Fourth Amendment. I discussed that case in January. More on drug-sniffing dogs here. Julian Sanchez considered the implications of Caballes in his 2007 Reason article "The Pinpoint Search."

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  • Fist of Etiquette||

    Dissenting in Illinois v. Caballes, a 2005 decision that allowed warrantless sniffs of cars during routine traffic stops, Justice David Souter noted that "the infallible dog...is a creature of legal fiction."

    I always pegged Souter as a cat person.

    Maybe they should certify narcotics pooches like they do interior decorators, flourists and hairdressers. With a giant fee and a huge waste of time.

  • anarch||

    At first I misread it as "This week the Supreme Court agreed to hear a case that cats doubt ..."

    Too much staring at screen'll do that.

  • Fist of Etiquette||

    Cats are skeptical about pretty much everything.

  • ||

  • ||

    What about Bill the Cat? Aren't we also forgetting The Cat in the Hat? Somewhere a Cheshire is weeping!

    Monsters!

  • ||

    One may doubt a policeman's word when he says he smelled pot, but one shouldn't doubt the word of a dog!

  • WanT||

    I hope the SC upholds the use of dogs just for the reason that what would replace them would be more invasive.

    Their replacements would be electronic, cost a shit ton, and would never sleep or even potentially need access to your car.

  • Jeffersonian||

    Never mind that, goddamnit, there's only ONE DAY LEFT in Elizabeth Warren's fundraising appeal! Do you fools not realize you have but ONE DAY LEFT to send Liz your money, after which she will respectfully refuse to take so much as a single penny of it?

  • db||

    I think her ads must get a huge clickthrough rate from Hit&Run;--what else could explain their frequency of appearing here? Glad to see she's funding libertarian causes.

  • shrike||

    Better dead than Red

  • AlmightyJB||

    I love redheads

  • Auric Demonocles||

    They're mine.

  • Ice Nine||

    Further, the State should keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures ("unverified" alerts where no contraband that the dog was trained to detect was found).

    That would be records kept by the dog's cop handler, I believe. There's a pretty easy solution to this particular impediment to he and his mutt doing their thing.

  • ||

    This is another example of a ridiculous misallocation of resources, i.e., the litigation, the training of the dogs, the training of the cop handlers, the record keeping, etc. which is making us poorer, much poorer.

  • Rastro||

    Rastro smerr rope.

  • Felix||

  • Night Elf Mohawk||

    I envisioned an entirely different kind of breading. Maybe panko.

  • Juice||

    Oh Long Johnson! O Don Piano!

  • ||

    It sounds like they are as reliable as any witness.

  • The Liti-Gator||

    Maybe he's gone dormant, but there was a Pledge-of-Allegiance-Hating, weirdo libertarian lawyer from Florida who used to troll the internet self-promoting and spreading odd theories. Among his spiels was taking credit for the Florida courts doubting drug-sniffing dogs. I don't want to use the guy's name, but I'm kind of surprised he isn't here right now.

  • ||

    This is a libertarian place pal, so you won't find too many here getting a boner over reciting one's genuflection to the gubmint.

  • Libertarian2||

    I went to the Univ of S. Florida. Didn't know I was a libertarian, but one of the regular columnists in the school paper said a lot of things I agreed with, so I wrote a letter of support to the editor that got published. The columnist gave me a call, and I found out more about libertarianism and a small group of us would meet occasionally in the rathskellar. He managed to get on local TV to expound on issues (this was around 1980 when local cable monopolies was a pet issue). 1980 was in the dark ages of libertarianism and before the internet. I remember making my own Ed Clark bumpersticker. Anyway, the guy's name was Rex Curry. True story.

  • Skid Marx||

    Irrespetive of how it's being exploited for evil, that German Shepherd is one fine looking dog. Buried mine forty-six weeks ago today. Be the first NCAA Women's Final Four without her since 1996.

    Go Baylor!

  • anon||

    I prefer to watch my lesbians on Cinemax.

  • Hadouken||

    I'm confused about something. The article mentions police dogs being used "to generate probable cause for vehicle searches." Shouldn't that be "to generate probable cause for a warrant to search the vehicle"? I ask because warrants require probable cause (among other things), thus it would be odd for probable cause alone to permit a warrantless search.

    Related to the Fourth Amendment implications of a dog at your front door, is there a difference between looking for probable cause and a search?

  • ||

    SCOTUS has ruled there is a "vehicle exception" to the warrant requirement. Cant recall the case now. A search requires probable cause AND either a warrant or "exigent circumstances" e.g. risk that evidence would be lost/destroyed in the time spent waiting for a warrant. Automobiles supposedly qualify as "exigent circumstances" due to their mobility.

  • ||

    Automobiles supposedly qualify as "exigent circumstances" due to their mobility.

    Why limit this just to automobiles? Hell, molecules move...and we are composed of molecules. Do they, molecules, therefore us, qualify as "exigent curcumstances?"

  • Gray Ghost||

    The wiki for vehicle exception goes into a lot of detail. I had thought either Terry or Mapp was the case: nope.

  • ||

    my state doesn't have a vehicle exception btw. WA has a right to privacy. we rock

    no searches of MV's incident to arrest here

  • ||

    exigent circ's aren't the only exception, but it is one of them

  • ||

    Its great that SCOTUS is considering dogs reliability.

    Maybe Congress next?

  • anarch||

    Dog: I want to send a telegram
    Western Union Clerk: What do yo want it to say?
    Dog: "Ruff ruff ruff, ruff ruff, ruff ruff ruff."
    Western Union Clerk: That's eight words. You can add two more "ruff"s for the same price.
    Dog: But that would be silly!

  • shamalam||

    +1

  • ||

    lol, now that is one goofy looking mutt.

    www.Anon-Nets.tk

  • ||

    You know, this idiotic charade we go through deciding what is and what is not Constitutional - well, it's pathetic. The state will ultimately, always find a way to do what it wants. What is the point of even going through it? Everyone knows it's bullshit. Our ruler/overseers/owners will do what they want as long as they can get away with it and they have always been able to get away with it. The fact that people give credence to this government crap does nothing except to validate what is a fundamentally corrupt and broken system.

  • ||

    except that's utter and complete rubbish. if you follow the law, vs. making contentless whiny posts about it, you see that quite frequently, the courts rule on the constitution in ways that substantially limit state authoritah

    there was a time when we had no exclusionary rule, no miranda, etc.

    heck, in my state just a few years ago pretext stops were legal (they are now not legal) and cops can no longer search motor vehicles incident to the arrest of the driver

    both cases are solid examples of restriction of state authoritah.

    and it's a good thing in regards the "search incident to arrest" which was always a legalized fishing expedition based on very specious logic

  • Shmenge||

    I hope they were book matches.

  • Whahappan?||

    I don't think enough emphasis is put on the human handlers. Regardless of how accurate the dogs are, we know the handlers are full of shit. But as the judges are too, they won't want to bring attention to that fact.

  • ||

    Souter is no longer on the Court, but evidently at least some of the current justices see a need to re-examine the assumption that a canine alert "discloses only the presence or absence of narcotics," as the Court claimed in United States v. Place, a 1983 decision that allowed warrantless sniffs of luggage at airports on the theory that such examinations are not really searches.

    That seems like a wildly over-optimistic reading of the grant of certiorari. It seems just as plausible that the Court granted review because it plans on overturning the Florida decision and ruling that dogs are infallible.

  • AZ||

    99% off topic: cop injured in accident when trying to shoot threatening dog: http://www.startribune.com/loc.....74925.html

  • shrike||

    It hsd cops, and dogs, that makes it good enough to be considered on topic.

  • ||

    Am I bad cause I lol'd at that?

  • juris imprudent||

    The only thing that would've been funnier was if the dog shot the cop.

  • ||

    i hope this case doesn't become a battle of disingenuous "experts" on both sides, but instead the SCOTUS is able to see through the bullshit and make a ruling based on ... SCIENCE

  • ||

    I know of a supposedly highly-trained drug sniffing dog who went nuts in front of a student's locker. When the locker was opened, the dog had reacted to a......bacon sandwich. This whole drug-sniffing dog thing is a load.

  • ||

    Who doesn't like bacon sandwiches?

    A police dog would go nuts over my car, I have a female dog that was in heat a few weeks ago.

  • shamalam||

    And what were you and the horny dog doing in the backseat? Hmmmmm.

  • ||

    Is there nothing bacon can't do?

  • Spartacus||

    In my town, we have a Coin Squad, specially trained to determine whether probable cause exists. The Coin Squad will bring in a specially trained Sacagawea dollar coin and toss it. If the coin comes up heads, this is an "alert" and constitutes probable cause for a search. This coin requires special training and handling, and is very sophisticated. Only a properly trained Coin Handler can tell whether it has actually landed heads or not.

  • shamalam||

    sounds like the basis of a good amicus brief.

  • juris imprudent||

    So how will Scalia determine the professionalism of the dogs, that's what I want to know.

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