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A dog's life

You're pretty sure you weren't violating any traffic laws, but the State Highway patrolman pulls you over anyway.  Improper lane change, something about not putting on your signal, maybe you didn't, maybe he just made it up...  He asks you some questions, taking his time, where you're going, where you're coming from, makes a comment about your out-of-state license plates...  You hand him your license and registration, and he has to ask you some questions about that, too.  Why doesn't he just give me the damned ticket and be done with it, you think.  And then you see the other cop car pull up, behind the first one.  The officer gets out and opens the back door, and out bounds a German Shepherd, and if you're hauling 200 keys of powder from Detroit to New York, you know this dog's not going to be your best friend.

If you're hauling them from Miami to Atlanta may be another story, though...

 That's pretty much what happed to Clayton Harris back in 2006.  A cop stopped him for an expired tag, noticed Harris was shaking and breathing rapidly, and so had his dog Aldo take a walk around the car.  Aldo alerted at the driver's door handle, and a search of the car revealed 200 pseudoephedrine pills in a plastic bag, and some muriatric acid, both of which are used in making methamphetamines.  A year ago, the Florida Supreme Court tossed the whole thing, finding that the state hadn't introduced sufficient evidence as to the reliability of the dog in detecting drugs, and rejecting the argument that the state could meet its burden in that respect simply by showing that the dog was trained and certified to do so.  Last week, the US Supreme Court granted certiorari.

The state's argument is essentially that, in Yogi Berra's phrase, it's deja vu all over again:  in three prior decisions -- Florida v. Royer, US v. Place, and Illinois v. Cabales -- the Court has already held that "a positive alert by a dog constitutes probable cause."  This is shoddy research.  Royer didn't even involve a dog; the issue was addressed in a footnote of pure dicta.  In Place, the search was tossed because the court found that the police didn't have probable cause to take the defendant's luggage to another place to be sniffed by the dog.  Cabales is the only case that really addresses the issue of a dog sniff, and there the Court simply held that the sniff did not constitute a search within the meaning of the 4th Amendment, and thus did not require probable cause or reasonable suspicion.  To be sure, the trial court had found that the alert gave probable cause to search the trunk of the vehicle, but the legitimacy of that finding was unaddressed in both the appeal and the opinion.

But just because the Supreme Court didn't decide the issue before doesn't mean that it won't, or shouldn't, decide the issue this time around.  The heart of the state's argument is that the Court should simply hold that evidence that the dog is trained and certified is sufficient to make a prima facie showing of probable cause; it then becomes the defendant's burden to prove the contrary.  This, the state claims, is the holding of every other court in the country except the Florida Supreme Court, and while I didn't check that claim out, there's a good bit of merit to it.  Most Ohio courts, for example, follow the 6th District's decision in State v. Nguyen, which held that all the state has to do to establish probable cause is to present "documentary proof" that the dog is properly trained and certified.

Harris argued that the Supreme Court shouldn't even bother with the case, asserting that the Florida Supreme Court's decision was fact-specific, and granting certiorari would simply embroil the Court in setting standards for drug dog training and certification.  There's some merit to that argument; the Florida court's decision in Harris does use a "totality of the circumstances" approach to the issue, which has certainly been in favor as a general approach to search and seizure questions.  The Supreme Court's acceptance of the case, though, seems to put the kabosh to that argument, and to indicate the desire to impose a bright-line test:  if the dog is certified and trained, that's enough to establish probable cause.

That may not be the way the case comes out, though, because the devil, as always, is in the details.  One of them, as the Florida Supreme Court pointed out, was that the state doesn't have a uniform standard for determining the acceptable level of training, testing, or certification for drug-detection dogs.  And even where there is a certification, it may not be relevant:  the dog in Harris was certified to detect methampetamines, as well as other drugs, but there was nothing in the record indicating it had been trained or certified in detecting pseudoephedrine or other precursors of methampetamines.  There's also a fairly strong argument that the general reliability of dogs in detecting drugs is vastly overstated.  Expect the NACDL to come in with an amicus brief here presenting studies like the ones I mentioned in this post a year ago, showing problems with false alerts, handler cuing, residual odors, and the like.  Or simple fudging of the evidence.  Aldo's handler testified that the dog had a "100% accuracy rate."  The problem was that the handler only recorded instances where the dog alert led to an arrest; if there was a false alert, the handler ignored it.  I've won 100% of the appeals I've handled, if you don't count the ones that I've lost.

The early line is that the Court will simply announce a bright-line test and be done with it, but there's a lot of play in that prediction.  We'll have a better idea after oral argument next term.

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