On March 26, the US Supreme Court granted the State of Florida's Petition for Writ of Certiorari in Florida v. Harris from a decision of the Supreme Court of Florida. That decision spoke to the state's evidentiary burden to satisfy the Fourth Amendment's requirement of probable cause to search a vehicle following a canine alert. When this case goes before the Supreme Court during October Term 2012, the Court will consider squarely what evidentiary foundation is needed to show that an alert by a narcotics-detection dog provides an officer a reliable basis for probable cause to search a vehicle. In Illinois v. Caballes, the Court determined that a dog sniff that gives rise to probable cause to search a vehicle where the dog is well trained and "'does not expose noncontraband items that otherwise would remain hidden from public view,' ... during a lawful traffic stop ...[and] does not rise to the level of a constitutionally cognizable infringement."
In Florida v. Harris, during a valid traffic stop of the defendant for driving with an expired registration tag, a canine officer with the Liberty County, Florida Sheriff's office deployed his canine partner, Aldo, to sniff the vehicle's exterior. Aldo alerted on the driver's side door handle, leading the officer to search the vehicle's interior. This resulted in the discovery of supplies used to manufacture methamphetamine, which Harris, after arrest, admitted to making and using. After his motion to suppress the evidence at trial was denied, Harris pleaded no contest to and was convicted of possessing the restricted chemical pseudoephedrine with intent to use it to manufacture methamphetamine, in violation of state law.
The Supreme Court of Florida's decision on appeal was out of the ordinary: "[S]pecifically address[ing] the question of what evidence the State must introduce in order ... for the trial court to adequately undertake an objective evaluation of the officer's belief in the dog's reliability as a predicate for determining probable cause," that court concluded "that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person." Rather, the state "must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog." Whether reliability is challenged or not, the state must present the following evidence to permit the trial court to perform "a totality of the circumstances" review of the evidence supporting "the officer's belief in the dog's reliability as a predicate for determining probable cause": "evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), 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." Furthermore, "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)." Also, the state must "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)." Finally, "the State must present evidence of the experience and training of the officer handling the dog."
The Florida Supreme Court reasoned that admission of evidence regarding a canine's "track record of giving accurate information in the past" was necessary by noting the inability to cross-examine a dog and by analogizing to "situations where probable cause to search is based on the information provided by informants." The court cited "the potential for false alerts, the potential for handler error, and the possibility for alerts to residual odors" as grounds for concluding that the fact of a canine's training and certification provide an inadequate basis for probable cause following an alert. Accordingly, the court concluded that "a necessary part of the totality of the circumstances analysis in a given case ... is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle." The court also noted that "[i]n particular, ... it is important to include ... how often the dog has alerted in the field without illegal contraband having been found."
In this case, the Florida Supreme Court held that there was inadequate evidence to establish that the officer had a "reasonable basis for believing that Aldo was reliable at the time of the search" and that "Aldo's alert ... indicated a fair probability that drugs would be found in the vehicle." The court cited the paucity of "the record ... on the details of Aldo's training," on "the criteria necessary for the dog and handler to pass the course and obtain 'certification,'" the lack of "any testimony regarding Aldo's ability to detect residual orders," and the lack of "a complete picture of Aldo's [field] performance," specifically the "percentage of unverified alerts." As the court concluded that other facts did not show "probable cause that there were illegal drugs inside the vehicle," it ordered that the evidence be excluded.
The approach in Harris augurs poorly for the future use of canines by law enforcement personnel. First, the decision's reliance on the informant analogy is misplaced as dogs do not lie. Second, putting aside the substantial costs, both in dollars and convictions, that this holding imposes, Harris places substantial administrative burdens on law enforcement deploying canines with uncertain benefit to deterring unconstitutional police conduct. As it stands, Florida's officers, before deploying a trained and certified narcotics-detection dog, must now consider whether they can document, in great detail, their dog's reliability in sniffing out contraband. This burden presents problems to the use of dogs with many years of field success, but little documentation, and newly trained and certified dogs that lack a field record. The attendant uncertainty created will not abate once a dog has been found reliable in one proceeding, as the multi-factor analysis used in Harris offers no assurances of uniform results. In addition, there is little reason to believe that judges possess the requisite expertise to evaluate the adequacy of canine training programs, even if provided the information required by Harris.
These results flow from the the Harris majority's flawed grasp of the first principles of probable cause. To establish probable cause, it must merely be shown that the officer had "a substantial basis" on which to conclude that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Despite reciting this principle in their opinion, the Florida Supreme Court plainly failed to follow it. In addition, the court failed to perform the required analysis of burdens and benefits attending application of the exclusionary rule to a good faith search by a canine officer in its decision, as outlined in Davis v. United States.
Led by these considerations, most courts have rejected the framework for proving the reliability of the narcotics-detection dog adopted by the Florida Supreme Court, refusing to require the state to keep and produce extensive evidence of each dog's reliability, down to the percentage of positive and "false" alerts and the precise circumstances of the dog's training. The certain obstacles raised to the venerable practice of canine use in law enforcement by the Florida Supreme Court's decision and the uncertain deterrence benefits to be gained by its application bodes well for Florida's appeal.
E. Duncan Getchell, Jr., is the current Solicitor General of Virginia and the former chair of the appellate practice group of McGuireWoods, LLP. He is a fellow of the American Academy of Appellate Lawyers and a Permanent Member of the US Court of Appeals for the Fourth Circuit Judicial Conference.
Michael Brady is an Assistant Attorney General in Virginia's Office of the Solicitor General. He was a law clerk for Chief Justice Cynthia Kinser of the Supreme Court of Virginia and graduated from The University of Texas School of Law.
Suggested citation: E. Duncan Getchell, Jr. & Michael Brady, Florida Supreme Court Erred in Drug Dog Ruling, JURIST - Hotline, Apr. 23, 2012, http://jurist.org/hotline/2012/04/getchell-brady-florida-canines.php.
This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org