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It's a dog's world

drug dog.jpg

When I reviewed the oral argument last November in Florida v. Harris, I wasn't too sanguine about the prospects of the Court's affirming the Florida Supreme Court's decision establishing a lengthy checklist of items which had to be considered in determining whether a drug dog was sufficiently reliable so that his alert could provide probable cause for a search.  That skepticism was borne out on Tuesday, when the Court unanimously reversed.  There may be a nugget or two for defense attorneys confronted with a search prompted by a dog alert, but you have to do some digging to find them.

First, a refresher on the background.  Harris had been pulled over for a routine traffic stop, but his nervousness and an open beer can on the seat prompted the cop to use Aldo, a drug-detecting dog, for a sniff.  Aldo alerted to the car door handle, and while no drugs were found in the car during the ensuing search, the cops did discover enough pseudoephredrine pills and other ingredients used in making methamphetamine to impair the dental health of half of Jacksonville.  Harris' motion to suppress the search was denied by the trial and appellate courts, but the Florida Supreme Court reversed, finding that proof that the dog was trained and certified was not sufficient:

The State must present 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.

That would include "evidence of the dog's performance history," including records showing "how often the dog has alerted in the field without illegal contraband having been found."

Kagan's opinion makes short shrift of this, noting that in determining probable cause, "we have consistently looked at the totality of the circumstances" and "have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach."  The Florida Supreme Court, on the other hand, had "created a strict evidentiary checklist, whose every item the State must tick off," a list so extensive and demanding that, Kagan notes, "even Harris declined to defend the idea that the Fourth Amendment compels the State to produce each item of evidence the Florida Supreme Court enumerated" at oral argument. 

I've got some problems with dog sniffs; as I've written before, dogs aren't as reliable in this respect as a lot of people -- especially people who sit on appellate-level courts -- seem to think.  Still, we're talking about probable cause here, which is less than a preponderance of the evidence; even an error rate of somewhat over 50% would probably suffice.  As Scalia pointed out in oral argument in Harris, there's little incentive for the cops to skimp on dog training:  more false alerts simply means more time wasted in fruitless searches.  Given all that, having a mini-trial in every dog sniff case to pore over every scrap of paper pertaining to the dog's training and performance in the field, and tossing the search if those documents aren't produced (according to the Florida court, the failure of the cops to record the times when the dog falsely alerted would in itself require suppressing the evidence) doesn't seem consistent with general 4th Amendment principles.

One problem with the "totality of the circumstances" test is that it results in an amorphous body of law which produces inconsistent results:  how a cop in the field might evaluate those circumstances might be different from how a judge later views them, and more significantly, how different judges view them.  I was concerned that the Court in Harris might opt for a bright-line approach, in which the fact that the dog was trained or certified would be sufficient to close off further inquiry.  That's exactly the holding of the lead Ohio case on the subject, the 6th District's 2004 decision in State v. Nguyen, which held that "proof of the fact that a drug dog is properly trained and certified is the only evidence material to a determination that a particular dog is reliable," and can be established "by means of testimony or through documentary proof."  Nguyen reversed a trial court's ruling that the defense was entitled to all of the "real world records" pertaining to the dog's certification and training.

And for a while, it looked like my fears were unfounded.  "A defendant," the Harris opinion holds, "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 or expert witnesses," and "may contest the adequacy of a certification or training program."  "Evidence of the dog's (or handler's) history in the field" is fair game, at least in some circumstances."  So far, so good, but then the Court examines the evidence presented in the trial court, and concludes

As the case came to the trial court, Aldo had successfully completed two recent drug-detection courses and maintained his proficiency through weekly training exercises. Viewed alone, that training record--with or without the prior certification--sufficed to estab­lish Aldo's reliability.

That's my emphasis, but you better believe it's going to work its way into prosecutors' briefs on the subject. 

That may be reading it too broadly, however.  Harris hadn't challenged any aspect of Aldo's training in the trial court, and the state hadn't confined itself to merely submitting proof of a training certificate; it "introduced substantial evidence of Aldo's training and his proficiency in finding drugs," including "written records" concerning Aldo's performance on those tests.

So maybe the best you can do is craft an argument that Harris holds that you're entitled to the records of the dog's training, notwithstanding Nguyen, because they're "relevant," although not dispositive, as the Florida court made them out to be.  It's a fine line, but it's an argument you can make, and if you're a defense attorney contesting a dog sniff, anytime you can make an argument in your favor based on a 9-0 Supreme Court decision upholding a dog sniff, it's not a completely bad day.

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