Going to the Dogs: Supremes Says Lack of Performance Records for Drug-Dog Doesn't Invalidate Search
The Supreme Court today issued one of the two dog cases on its docket, Florida v. Harris. Recall that we blogged on this case when it was accepted for review. In today's unanimous ruling, the Supreme Court held that just because there are no performance records for how a dog does in the field, this by itself does not mean that a dog's positive alert cannot form the basis for a probable cause search.
The pooch in this case is "Aldo." His handler obviously had it out for Mr. Harris. The officer stopped Harris two times, and had Aldo run around the truck, sniffing for the odors of dope, etc. The first time, Aldo "alerted", but the officer did not find any of the substances for which the dog was trained to alert. However, they did find chemicals used to make methamphetamine, so they arrested Harris. The same officer again stopped Harris while the latter was out on bail. Once again, the loyal pooch ran around the vehicle, again alerted, but this time no illegal substances or precursors were discovered.
Mr. Harris moved to suppress the results of the first search, arguing that the dog alert was insufficient so as to allow a warrantless search of the truck's interior. The prosecution presented evidence about Aldo's extensive training in sniffing out illegal substances. Defense counsel did not challenge this evidence, but instead focused on the lack of any field performance records, along with the fact that Aldo had obviously given two false positives when alerting at the exterior of Mr. Harris's truck. The Florida Supreme Court agreed with the defense, noting that the lack of performance records for the dog's earlier work demonstrated that an alert from this animal was simply insufficient evidence to form the basis for probable cause.
Justice Kagan wrote for the unanimous Supreme Court. She noted that the Florida Supreme Court created a rule with specific requirements for establishing probable cause in dog alert cases, and that such specificity is the antithesis of the flexible totality-of-the-circumstances approach in such matters. Courts should not require that the prosecution introduce comprehensive documentation of the dog’s prior hits and misses in the field. The Court noted that looking at field-performance records as the evidentiary gold standard is erroneous. Such records may not capture a dog’s false negatives or may markedly overstate a dog’s false positives. While field records may sometimes be relevant, the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.
This case was not a huge surprise. Courts have for years been calling drug dogs "four-legged probable cause." Also, for many years the Supreme Court has rejected any specific rules in the probable cause analysis other than the "totality of the circumstances" test, which, obviously, puts a whole lot of power in the hands of the first judge who looks at a case.