Concerning the Reliability of an Alert by a Narcotics-Detection Dog
Whether an investigative technique that law enforcement asserts reliably identifies the presence of contraband is sufficient to satisfy the probable cause requirement of the Fourth Amendment and thereby allows routine warrantless searches.
In Florida v. Harris, the Supreme Court will address the reliability of an “alert” from a trained narcotics-detection dog. Specifically, the Court will determine under what circumstances an alert is sufficient to establish probable cause for a subsequent search. The lower court ruled that the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog for purposes of determining probable cause for a search.
In Harris, the defendant was charged with possession of the listed chemicla psudoephedrine with intent to use it to manufacture methamphetamine. The evidence was gathered during a warrantless search of defendant’s truck. The government argued that the search was reasonable because it was conducted subsequent to an “alert” by the officer’s drug-detection dog, Aldo. The dog alerted after conducting a “free air sniff” test and a test of the driver’s side door handle. The dog was not trained to detect pseudoephedrine. Defendant was later stopped by the same officer, and the same dog alerted again to his driver’s side door handle, but the officer discovered no contraband when he searched the vehicle. The Officer admitted at court that the dog can pick up “residual odors” of contraband, which could linger for an unknown amount of time. Thus, the defendant argued, the government must provide evidence to establish the reliability of the dog’s alert based on the accuracy of prior alerts. The Florida Supreme Court agreed, holding that “[t]o demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog’s training and certification records, … field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer …” Harris v. State, 71 So. 3d 756 (Fla. 2011).
Establishing Probable Cause
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). One such exception to the warrant requirement is the “automobile exception,” first established by the United States Supreme Court in Carroll v. United States, 267 U.S. 132 (1925). In Carroll, the Supreme Court held that a warrantless search of a vehicle based upon probable cause to believe that the vehicle contains contraband is not unreasonable within the meaning of the Fourth Amendment. Id. at 149. See also Maryland v. Dyson, 527 U.S. 465, 467 (1999).
The Court has made clear that probable cause “depends on the totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 238 (1983). It exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Grubbs, 547 U.S. 90 (2006). And when “the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that “an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-76 (1949). The burden is on the government to demonstrate that the police had probable cause to conduct a warrantless search.
Drug Detection Dogs and the Fourth Amendment
The Supreme Court has held that in certain contexts use of a narcotics-detecting dog to test a parcel or automobile does not require probable cause. In United States v. Place, the Court held that subjecting luggage that was temporarily seized at an airport, based on mere reasonable suspicion that it contained contraband, to a sniff test by a well-trained narcotics-detecting dog was not a “search” under the Fourth Amendment. United States v. Place, 462 U.S. 696, 707 (1983). In Illinois v. Caballes, the Court found that a similar sniff test conducted on the exterior of a car during a routine traffic stop was also not a “search” under the Fourth Amendment. 543 U.S. 405, 409 (2005). See also City of Indianapolis v. Edmonds, 531 U.S. 32, 40 (2000). In both cases, the narcotics dog “alert” was used as the basis for a subsequent search of the luggage and car. The Court found that the test itself did not constitute a “search” because it “[did] not expose noncontraband items that otherwise would remain hidden from public view.” Caballes, 543 U.S. at 409 (citing Place, 462 U.S. at 707). The Court assumed in Place, and the Respondent conceded in Caballes, that “the [test] discloses only the presence or absence of narcotics, a contraband item.” Place, 462 U.S. at 707. However, the defendant in Harris successfully argued that the reliability of the dog sniff test must be proven by the government in order for the alert to provide probable cause for the subsequent search.
EPIC’s Interest in Florida v. Harris
EPIC has argued in the past that the Fourth Amendment probable cause standard should apply in cases where the government uses “enhanced investigative techniques” in an attempt to detect contraband, see EPIC v. DHS (Suspension of the Body Scanner Program), where these techniques are imperfect, ineffective, and likely to lead to the exposure of private in formation (non-contraband) and legal conduct.
The Supreme Court’s Decision
On February 19, 2013 the Supreme Court unanimously ruled to overturn the Florida Supreme Court’s opinion in Harris. In rejecting the lower court’s conclusion that, when a dog alerts, “the fact that the dog has been trained and certified is simply not enough to establish probable cause,” and the lower court’s focus on the need for “evidence of the dog’s performance history,” the Supreme Court noted that “[t]he test for probable cause is not reducible to ‘precise definition or quantification.'” Slip. Op. at 5. Instead, the Court adopted its traditional “totality of the circumstances” test, and rejected the lower court’s “inflexible checklist” approach to reliability. The Court noted the potential pitfalls of false negatives and positives in field performance records, and stressed that “[t]he better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.” Slip. Op. at 8. But, as the Court emphasized, a defendant “must have an opportunity to challenge such evidence” of reliability. EPIC’s amicus brief focused on the need to establish the reliability of future investigative techniques with background research and national standards. In this case, the Court found that “[b]ecause training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that showing,” the officer had sufficient probable cause based on the dog’s alert to the truck handle.
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