Florida v. Harris: Another Layer of Complexity in Fourth Amendment Jurisprudence

JURIST Guest Columnists Anand Agneshwar and Anna Thompson of Arnold & Porter LLP discuss the possible implications of the Supreme Court's decision in Florida v. Harris which is scheduled for argument on October 31, 2012...
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On October 31, 2012, the Supreme Court will hear oral argument in Florida v. Harris where it will consider whether the alert of a trained and certified drug detection dog is, on its own, sufficient evidence to constitute probable cause to search a vehicle. 

The facts of Harris are relatively simple. On June 24, 2006, Officer Wheetley stopped Clayton Harris for an expired license plate tag and Harris appeared agitated. After seeing an open container of beer in the cup holder, Wheetley deployed his canine partner Aldo to circle the car. Aldo alerted near the driver's car door. Considering Aldo's alert as probable cause, Wheetley searched the car and found 200 pseudoephedrine pills, eight boxes of matches, and muriatic acid — all legal substances that, together, are the precursors of methamphetamine. Harris confessed that he had a meth addiction and had been cooking the drug for about a year. The State of Florida charged Harris with possession of pseudoephedrine with intent to manufacture methamphetamine.

Prior to trial, Harris moved to suppress the material found during the search, arguing that Wheetley did not have probable cause because Florida had not shown that Aldo's alert was reliable. Although Aldo was a "certified" drug detection dog, who was trained to detect methamphetamine, he was not trained to detect precursors of that drug. Aldo trained for four hours per week in a controlled environment and had a "really good" rating, but Wheetley could not explain what Aldo's "really good" rating meant. Nor could Wheetley describe how accurate Aldo was in the field. Florida countered by arguing that Aldo's training, certification and alert were sufficient to provide probable cause.

The Florida Supreme Court disagreed and held that "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". Absent some standard criteria for certification or other evidence that Aldo was reliable — e.g., field records, explanations of certification and training records, or evidence about the experience and training of the handler — the state did not have sufficient grounds to find probable cause to search Harris's car. The Supreme Court granted certiorari on March 26, 2012.

The Supreme Court has had several occasions to hear drug detection dog cases. However, those opinions addressed whether the use of a detection dog itself comprised a search — not whether the dog's alert provided probable cause for a search, as explained in United States v. Place (addressing the "reasonableness under the Fourth Amendment of warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause") and Illinois v. Caballes, (addressing whether use of a drug-detection dog during a routine traffic stop, without more, constituted a search). In Caballes, Justice David Souter recognized that resolution of this probable cause question may underlie Fourth Amendment jurisprudence.

Lower courts generally agree that, to have probable cause for a search, a dog's alert must be reliable. However, there is disagreement on the evidence necessary to establish reliability. Courts fall into three camps.

As advocated by the state in Harris, some courts — including the US Courts of Appeal for the Third, Eleventh, and Fifth Circuits — have concluded that a drug detection dog's training and certification alone is sufficient to establish its reliability for probable cause. These courts reach this conclusion because they believe that "trained dogs can detect the presence of concealed narcotics with almost unerring accuracy." Although this bright-line rule is relatively easy to administer, it ignores the lack of general standards for training certification, does not take into account the subtle powers of even inadvertent police officer suggestion and ignores recent studies detailing drug detection dogs' susceptibility to error.

Other courts — including the US Courts of Appeal for the Sixth and Ninth Circuits and the Florida Supreme Court — have held that to be reliable, in addition to training and certification, the state must present affirmative evidence demonstrating a drug detection dog's reliability. These courts have reasoned:

Because the dog cannot be cross-examined like a police officer whose observations at the scene may provide a basis for probable cause, the trial court must be able to assess the dog's reliability by evaluating the dog's training, certification, and performance, as well as the training and experience of the dog's handler.
This approach would change the enforcement landscape. Police departments in those states that do not currently keep accurate field records would need to create new systems. The state would be required to bear the burden of time and expense to affirmatively establish a dog's reliability.

Most courts hold that a drug detection dog's training and certification creates a presumption that the dog is reliable, but the defendant may rebut this presumption by presenting evidence that the dog is, in fact, unreliable. The US Courts of Appeal for the First, Second, Fourth, Seventh, Eighth, and Tenth Circuits follow this approach. In United States v. Donnelly, for example, the Eighth Circuit found that a drug detection dog's training and certification creates a "facial validity," but when its "performance record raises questions about [its] reliability, further inquiry [is] required." Although this approach purports to reach a middle ground, in practice, it may impermissibly shift the burden of proof. The police have no incentive to keep field records or other evidence establishing a drug dog's reliability — the very evidence that the defendant needs to rebut the general presumption.

While the second approach outlined above — the one endorsed by the Florida Supreme Court's decision in Harris — may at first seem far reaching, it most closely comports with Fourth Amendment jurisprudence. The Supreme Court historically has required courts to consider the totality of the circumstances in determining whether probable cause is met. In Alabama v. White, the Court established that probable cause is "dependent upon both the content of information possessed by police and its degree of reliability . . . and [is] considered in the totality of the circumstances — [it is] the whole picture, that must be taken into account." Without actual evidence of the dog's and handler's reliability, the court cannot determine whether probable cause existed under the totality of the circumstances. If dogs, in fact, were infallible drug detection systems, this might be acceptable. But the empirical evidence shows quite clearly that they are not. Ignoring individual variability among dogs, training, certification systems and handlers is ignoring the world in which the dogs and their handlers live and work.

The burden of proving probable cause also historically has remained on the government, regardless of the consequences in an individual case, as stated in United States v. Ho. To require the defendant to rebut a presumption when he may or may not even have evidence to do so would violate this principle.

Finally, police departments are quick to adapt to new regimes. Time and again, as Fourth Amendment protections have been articulated, skeptics warned of draconian consequences. But time and again, police departments have shown themselves resilient and have responded with methods that comply with the law and make searches and convictions all the more reliable.

Anand Agneshwar is a partner and Anna Thompson is an associate at the law firm of Arnold & Porter LLP. On behalf of the Rutherford Institute, they have filed an an amicus curiae brief in support of the Respondent in Florida v. Harris.

Suggested citation: Anand Agneshwar and Anna Thompson, Florida v. Harris: Another Layer of Complexity in Fourth Amendment Jurisprudence, JURIST - Sidebar, October 31, 2012, http://jurist.org/sidebar/2012/10/agneshwar-thompson-florida-harris.php.


This article was prepared for publication by Stephanie Kogut, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

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