Probable Cause and Drug-Detection Dogs

 

 In the recent case of the State of Florida versus Clayton Harris, the United States Supreme Court held that a police officer had probable cause to search Mr. Harris' truck using his drug-sniffing dog. The facts of Mr. Harris' case are as follows:

 

Officer Wheetley pulled over Mr. Harris for a routine traffic stop. Observing Harris' nervousness and an open beer can, the officer sought consent to search Harris' truck. When Harris refused, Wheetley executed a sniff test with his trained narcotics dog, Aldo. The dog alerted at the driver's-side door handle, leading Wheetley to conclude that he had probable cause for a search. That search turned up nothing Aldo was trained to detect, but did reveal pseudoephedrine and other ingredients for manufacturing methamphetamine.  Harris was arrested and charged with illegal possession of those ingredients. In a subsequent stop while Harris was out on bail, Aldo again alerted on Harris' truck but nothing of interest was found. At a hearing to suppress evidence, Wheetley testified about his and Aldo's extensive training in drug detection.  Harris' lawyer did not contest the quality of that training, focusing instead on Aldo's certification and performance in the field, particularly in the two stops of Harris' truck.

 

The judge denied the motion to suppress, but the Florida Supreme Court reversed. It held that a wide array of evidence was always necessary to establish probable cause, including field-performance records showing how many times the dog has falsely alerted. If an officer like Wheetley failed to keep such records, he could never have probable cause to think that his dog was a reliable indicator of drugs.

 
The U.S. Supreme Court disagreed and reversed the ruling of the Florida Supreme Court.  The U.S. Supreme Court ruled that because training and testing records supported Aldo's reliability in detecting drugs and Harris' lawyer failed to undermine that evidence, Wheetley had probable cause to search Harris' truck.  The U.S. Supreme Court stated:
 
1.  In testing whether an officer has probable cause to conduct a search, all that is required is the kind of “fair probability” on which “reasonable and prudent [people] act.”  To evaluate whether the prosecution has met this practical and common-sensical standard, the U.S. Supreme Court has consistently looked to the totality of the circumstances and rejected rigid rules and bright-line tests.
The  Florida Supreme Court flouted this established approach by creating a strict evidentiary checklist to assess a drug-detection dog's reliability. Requiring the prosecution to introduce comprehensive documentation of the dog's prior hits and misses in the field, and holding that absent field records will preclude a finding of probable cause no matter how much other proof the prosecution offers, is the antithesis of a totality-of-the-circumstances approach. This is made worse by the Florida Supreme Court's treatment of field-performance records as the evidentiary gold standard when, in fact, such data may not capture a dog's false negatives or may markedly overstate a dog's false positives. Such inaccuracies do not taint records of a dog's performance in standard training and certification settings, making that performance a better measure of a dog's reliability. Field records may sometimes be relevant, but the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.
 
Under the correct approach, a probable-cause hearing focusing on a dog's alert should proceed much like any other, with the court allowing the parties to make their best case and evaluating the totality of the circumstances. If the prosecution has produced proof from controlled settings that a dog performs reliably in detecting drugs, and a defendant like Mr. Harris has not contested that showing, the court should find probable cause. But a defendant must have an opportunity to challenge such evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact witnesses or expert witnesses. The defendant may contest training or testing standards as flawed or too lax, or raise an issue regarding the particular alert. The court should then consider all the evidence and apply the usual test for probable cause—whether all the facts surrounding the alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal evidence of a crime.
 
2.  The record in this case amply supported the trial court's determination that Aldo's alert gave Wheetley probable cause to search the truck. The prosecutor introduced substantial evidence of Aldo's training and his proficiency in finding drugs.  Harris declined to challenge any aspect of that training or testing in the trial court, Harris principally relied on Wheetley's failure to find any substance that Aldo was trained to detect. That infers too much from the failure of a particular alert to lead to drugs, and did not rebut the prosecutor's evidence from recent training and testing.
 

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